On 6 March 2024, a licenced painter, Navid Rezai, and his company, Brisbane Top Painting Pty Ltd, were found guilty of three charges following a trial in the Redcliffe Magistrates Court for breaching section 33 of the Work Health and Safety Act 2011 (‘the Act’). It was found that the director of the company, Mr Rezai, failed in his duty under section 27(1) of the Act, to exercise due diligence in ensuring that Brisbane Top Painting Pty Ltd complied with their health and safety duties pursuant to section 19(1) and 19(2) of the Act.

The defendant conducted a painting business and had been engaged by a homeowner to paint the roof of their house which contained Chrysotile asbestos.

Between 2 August 2021 and 5 August 2021, the Court heard that the defendant used high-pressure water spray to clean the asbestos roof in preparation for painting. Mr Rezai claimed that he had not been told of the presence of asbestos in the roof; however, the presiding Magistrate accepted the evidence of the homeowner and her son that there were multiple discussions with the defendant in relation to the asbestos roof.

After hearing the evidence from witnesses, the Magistrate found that, not only was the presence of asbestos brought to the defendant’s attention; but, even if the homeowners had not informed the defendant about the asbestos, he had an obligation to seek out and eliminate any risks to health and safety, so far as reasonably practicable.

Mr Rezai and Brisbane Top Painting Pty Ltd were found guilty of the three charges.

In sentencing, Magistrates Batts explained the objects of the Act and the need to protect workers and the community. It was accepted that the health and safety duties involved proactive steps being taken to identify and eliminate risks, and it was an aggravating feature that he had a commercial licence. Her Honour noted that the principles of specific and general deterrence were relevant, and that the neglect of simple, well-known control measures was a relevant feature. In reaching a decision on penalty, Her Honour accepted that it was the breach of the duty in which the seriousness arose, not the fact that any person had actually suffered any injury.

Her Honour found that the defendants had no remorse and noted that she had heard the evidence of experts in relation to the inherent dangerousness of asbestos – particularly that there was no safe level of exposure to asbestos. In part, Her Honour exercised the discretion to record a conviction against both defendants as a result of their complete lack of remorse and the need for specific and general deterrence.

Magistrate Batts also took into account the submissions of Mr Rezai in relation to living with a back injury, and financial hardship; however, she noted that there was no evidence to support these claims.

In light of these factors, Her Honour recorded convictions and sentenced Brisbane Top Painting Pty Ltd to a $37,500 fine, $31,906.60 for the cost of remediation works, $4,000 in restitution to the homeowners, $4,250 in professional costs and $101.40 in court costs.

In relation to Mr Rezai, a conviction was recorded, he was sentenced to an $8,000 fine and $101.40 in court costs.

All fines, costs and restitution were referred to SPER.

OWHSP contact: enquiries@owhsp.qld.gov.au