Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. This judgment concerns an application for costs when a prosecutor has withdrawn charges.

Background

2. On 19 March 2019 a SafeWork NSW (SafeWork) Inspector visited the premises of Stonework Marble and Granite Pty Ltd (Stoneworx). Following that visit SafeWork issued Improvement Notices to Stoneworx in relation to the risk posed by the inhalation of respirable crystalline silica (RCS). This inspection brought the commission of an offence to the attention of SafeWork.

3. The Work Health and Safety Act 2011 (NSW) (the WHS Act) requires proceedings for a breach of the legislation to be commenced within two years of the offence first coming to the notice of the regulator: s 232(1)(a) of the WHS Act.

4. Arguably, SafeWork had to commence proceedings before 19 March 2021.

5. On 6 October 2021 SafeWork filed a Summons against Stoneworx alleging that Stoneworx had breached its health and safety duty under s 19(1) of the WHS Act in that it exposed three workers to a risk of serious illness contrary to s 32 of the WHS Act. The allegation was that all three workers had been exposed to the inhalation of respirable crystalline silica (RCS) which put them at risk of developing silicosis.

6. In related proceedings SafeWork charged Mr Doueihi as an officer of Stoneworx with failing to exercise due diligence as required by s 27 of the WHS Act.

7. Both Summonses were filed more than two years after the visit of the Inspector and the service of the Improvement Notice.

8. On 9 December 2022 Stoneworx and Mr Doueihi filed Notices of Motion seeking to argue that the proceedings should be stayed as they had been brought out of time.

9. However, both motions were effectively abandoned in July 2023. Following negotiations, pleas of guilty were entered on 11 March 2024 to the charges in the Amended Summonses. Both matters were set down for a sentencing hearing on 31 May 2024. The sentencing judge became unavailable on that date and the sentence hearing was then set down for 27 June 2024.

10. On 24 June 2024 the Court of Criminal Appeal delivered its decision in Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105 (Prime Marble). It was this decision which led SafeWork to withdraw the Amended Summonses in the present proceedings.

11. On 13 February 2025 SafeWork was granted leave to withdraw both Amended Summonses, with the issue of costs to be later decided.

The Decision in Prime Marble

12. The background facts in Prime Marble were very similar to the present cases. A SafeWork inspector had attended the Prime Marble premises to measure exposure to RCS. This resulted in a report and the service of an Improvement Notice upon Prime Marble.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196847462026b86ae3c4d212)

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