Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales

WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421 WorkCover Authority (NSW) (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156 HEARING DATES: 04/07/2004; 04/08/2004 DATE OF JUDGMENT: 09/24/2004

APPELLANT: Mr B D Hodgkinson SC and Mr D Jordan of counsel Clayton Utz, Lawyers (Mr L Connolly) LEGAL REPRESENTATIVES: RESPONDENT: Mr M J Joseph SC and Mr P M Skinner of counsel Moray & Agnew, Solicitors (Mr N A Correy)

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President STAUNTON J Friday 24 September 2004

Matter No IRC 3738 of 2003 ABIGROUP CONTRACTORS PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MALTBY)

Application by Abigroup Contractors Pty Limited for an appeal against decisions of Justice Kavanagh given on 6 August 2002, 27 February 2003 and 24 June 2003 in Matter Nos 5432, 5433, 5434, 5436 and 5438 of 1999 JUDGMENT OF THE COURT [2004] NSWIRComm 270

1 Abigroup Contractors Pty Limited has appealed pursuant to s196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 against the convictions entered and sentences imposed by Kavanagh J in a series of judgments culminating in the judgment of 24 June 2003. The prosecutor at first instance and the respondent to the appeal, Inspector Kathleen Maltby, laid two charges against the appellant under s15(1) of the Occupational Health and Safety Act 1983 (the Act) and three charges under s16(1) of the Act. The appellant pleaded not guilty to all charges.

2 In the judgment delivered on 27 February 2003, her Honour found the five charges proven: WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd and Luis Bustamente (2003)126IR1. On 24 June 2003, her Honour imposed a penalty for all five charges totalling $1,500,000: WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamente [2003] NSWIRComm 201.

3 Although one Notice of Appeal has been filed, the notice includes appeals in three separate respects, the substance of which is:

(a) first, an appeal against her Honour's interlocutory judgment of 6 August 2002 where Kavanagh J granted leave to the prosecutor to adduce further evidence, after the close of the prosecution and defence cases, in support of the time limitation specified in s49(4) of the Act; (b) second, an appeal against her Honour's judgment of 27 February 2003 in which the charges against the appellant were found proven; and

(c) third, an appeal against her Honour's judgment of 24 June 2003 in which five convictions were recorded and fines for the five convictions were imposed. For convenience, these will be referred to as the first appeal, the second appeal and third appeal.

Factual background 4 The original five charges related to two gas explosions which occurred near Kogarah railway station on 4 December 1995. The first explosion occurred shortly after 2 pm outside an entertainment centre operating from a shop front near the railway station entrance, which was called the Family Amusement Zone. A gas induced fire burnt for over two hours while endeavours were made to find the source of the gas leak. The second explosion occurred at approximately 4 pm, this time inside the Family Amusement Zone. Two persons, Mina Bakhoum and Gregory Maybury, sustained fatal injuries as a result of the first explosion. As a result of both explosions, at least 16 other persons sustained burn injuries, as well as wounds, from the blasts. The burns ranged from burns of a minor degree to third degree burns. Those injured were members of the public, shop employees, shop owners and officers from the New South Wales Police Force and Fire Brigade who had answered emergency calls to attend the scene.

5 Inspectors of the WorkCover Authority of New South Wales commenced proceedings against several parties including:

(a) the appellant; (b) Luis Bustamante, the foreman for the appellant on the Kogarah Railway Station Upgrade (KSU) site; (c) Robert Josef, a director of Josef and Sons Contracting Pty Ltd who contracted with the appellant to demolish the shops and remove the paving blocks from the footpath in front of them; (d) three other employees of Josef and Sons Contracting Pty Ltd;

(e) AGL Gas Networks Limited who disconnected the gas supply;

(f) the State Rail Authority of New South Wales (SRA); and

(g) each of the parties to a consortium, Capital Works Management, which had been engaged by the SRA (which included TMG International Pty limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited) and three other corporations: Ove Arup Pty Limited, Ove Arup Consult Pty Limited and Arup Partners Pty Limited all of which traded as Ove Arup and Partners pursuant to a registered business name.

The charges 6 As earlier noted five charges were brought against the appellant pursuant to s 15 and s 16 of the Act . The charges covered three distinct periods:

(a) 10 November 1995, the day the gas service was disconnected; (b) between 10 November 1995 and 4 December 1995, the period during which demolition and construction work occurred on the KSU site; and (c) 4 December 1995, the day of the two gas explosions. These sets of charges will be referred to respectively as the first set of charges, the second set of charges and the third set of charges.

7 The first set of charges comprised two charges. They related to the day of 10 November 1995; one is brought under s15(1), that the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Maurice Bolger, Paul Poidevin and Luis Bustamante. The other is brought under s16(1) of the Act, that the defendant being an employer, did fail to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking. The alleged failures and particulars of the charges are identical and are that the appellant: i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated; v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: a) within one metre of a building to be demolished; b) that was not adequately protected or identified; c) in which earthmoving works were to be performed. vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: a) location of the charged gas supply line; b) the risks associated with work adjacent to the charged gas supply line; c) the type of work that might be carried out adjacent to the charged gas supply line; d) the type of work, if any, which could be performed adjacent to any charged gas supply line. Particulars 1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading ("KSU"). 2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant was aware where the gas supply line had been cut and capped by Princi. 9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 11. The Defendant failed to adequately protect the charged gas supply line on the KSU. 12. The Defendant failed to adequately identify the charged gas supply line on the KSU. 13. The Defendant failed to adequately mark the charged gas supply line on the KSU. 14. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.

8 The second set of two charges relate to events between 10 November 1995 and 4 December 1995. The appellant was charged under s15(1) of the Act for failing to ensure the health, safety and welfare at work of all its employees and in particular Maurice Bolger, Paul Cejka, Paul Poidevin, Troy Morris, Paul Warren, Barry Jessop and Luis Bustamante. The second charge in the second set was laid under s16(1) of the Act for failing to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking. The alleged failures and particulars of both charges were largely the same as those for 10 November 1995 except for the following:

(a) an added alleged failure (v) that the appellant "failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line";

(b) the following additional particulars were provided: 8. The building was mechanically felled by the use of an excavation which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building. 10. The defendant used a stake to mark the gas supply line when it became exposed. 12. The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.

(c) Omitted particular 7 of the charge in relation to 10 November 1995, that read, "the Defendant was present at the KSU when Princi attended to cut and cap the gas supply line", was omitted.

9 The third set of charges comprises only one charge in relation to 4 December 1995. It was laid under s 16 of the Act and was in the following terms: The breach is pleaded against Abigroup under s16(1) of the Act: On 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:

(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; (ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; (iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated; (v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line. (vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated. (vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) the risks associated with work adjacent to the charged gas supply line; (c) the type of work that might be carried out adjacent to the charged gas supply line; (d) the type of work, if any, which could be performed adjacent to any charged gas supply line. Particulars 1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading ( KSU ). 2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ( AGL ) to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was aware of where the gas supply line had been cut and capped. 8. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 10. The Defendant used a stake to mark the gas supply line when it became exposed. 11. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 12. The excavator was used to create the batter in the area where the gas supply line was situated. 13. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 14. The Defendant failed to prevent the operation of earth moving machinery on the construction are close to the charged gas supply line. 15. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah. 16. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 17. At approximately 2.00p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 18. Between 2.00 p.m. and 4.00 p.m. on 4 December 1995, the Defendant was advised of the explosion which had occurred. 19. At approximately 4.00p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 20. The gas explosions were of sufficient extent and severity that persons were injured thereby. 21. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 22. The Defendant failed to adequately protect the charged gas supply line on the KSU. 23. The Defendant failed to adequately identify the charged gas supply line on the KSU. 24. The Defendant failed to adequately mark the charged gas supply line on the KSU. 25. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 26. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.

10 Sections15(1) and 16(1) of the Act provide, respectively: 15(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. and 16(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

Issues in the appeal 11 The issues raised in the first appeal are:

(a) the application of the presumption of regularity; (b) the correctness of her Honour's finding as to whether the prosecutor had been put on notice of the issue in relation to s49(4) of the Act before the close of the prosecution case; (c) whether a formal objection or formal notice of the application of abuse of process was required; and (d) her Honour's decision to grant leave to the prosecutor to adduce further evidence in support of s49(4) of the Act after the close of the prosecution case.

12 The single issue raised in the second appeal is the determination of what is a relevant risk for the purposes of ss15 and 16 of the Act.

13 The issues raised by the third appeal are: (a) the application of the totality principle, in particular the reduction for multiple and/or double punishment where there are common elements in the charges;

(b) the relevance of adherence to industry practice as a mitigating factor on penalty; and

(c) whether the total penalty imposed on the appellant was manifestly excessive.

Judgment of 6 August 2002 (the first judgment) 14 Her Honour's judgment of 6 August 2002 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited & Anor (2002) 116 IR 65 dealt with the prosecution's application to call further evidence which arose from an objection or application brought by the appellant, termed an "abuse of process" objection, which was in the following terms: 1. The time limit for the commencement of proceedings under s49(1) of the Occupational Health and Safety Act on the face of the documents was not complied with and the proceedings are out of time.

2. In accordance with s49(4) of the Act with reference to the WorkCover Prosecutions against both Abigroup and Mr Bustamante there was no evidence before the court related to the Coronial proceedings in which it could be found that s49(4) was activated and, accordingly, the proceedings are out of time.

15 The issue for determination was described by her Honour "at the issue of the Orders were the requirements of s49(4) met and when must the prosecution prove the requirements were met" (at [35]). Her Honour accepted that the principles arising from consent to prosecute cases were relevant to the consideration of whether the proceedings had been commenced within the statutory time limit. After considering WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 and Price v Humphries [1958] 2 QB 353, Kavanagh J held that applying the presumption of regularity, there was "no requirement for a court, at trial, to be satisfied as to a time limitation until an objection is raised" and the "presumption of regularity was a valid presumption in the summonses before [her]" (at [38]). Her Honour noted that "given the presumption of regularity it is not until the objection is taken that the burden passes to the prosecution to produce evidence" (at [39]). In considering the question of when the objection was taken by the defendants, her Honour did not accept the appellant's submission that Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 was authority for the proposition that: [41] … notice of an objection or the threat that an application is to be brought in the nature of an abuse of process takes away from the Defendants the obligation to fairly raise an objection formally before the court.

16 Kavanagh J relied on the distinction drawn by Lord Goddard CJ in Price v Humphries between objections which went to the merits of the case and those which went to procedure, and that objections of the latter kind should not be made at the last minute, such as after the prosecution has closed its case (at [42]). This approach was said to be supported by the Industrial Relations Commission Rules 1996. Her Honour found that the matter before her was one which went to procedure (at [43]) and noted that in the present proceedings, the application was brought before the Court after the evidence was completed (at [44]). Her Honour reached the following conclusions: [46] During the trial, despite mutterings, no formal objection was raised before the court by the Defendants until after the close of the Prosecution case. While broader issues had been raised in the interlocutory Notice of Motion before me, the court ruled they were to be dealt with at the appropriate time in the trial. The form of any objection to be pursued was not made clear to the Prosecution during the presentation of its case even though there was mention of an "abuse of process" application to come. Price v Humphries refers to "when the matter comes before the court". The first application, as distinct from the threats that had been made, was brought by the Defendants to the Court after the close of the Prosecution's case. While the first application was dealt with by the Full Bench and not otherwise pursued, this new application was not brought until after the close of the Defendants' case at the end of the trial. Price v Humphries and R v Waller are authority for the propositions any objection of such a nature should be raised prior to the close of the Prosecution case and, if raised later, leave to call evidence should be granted. [47] On Lord Goddard's view, the objection of the Defendants at this stage in the proceedings ought be disallowed. However, in the use of my discretion I believe the interests of justice and fairness to both parties requires the Defendants should be allowed to raise its objection and leave should be granted to the Prosecution to call further evidence. In so ruling I take into account while formal notice of the application was not brought earlier, the Prosecution was aware there was an issue, not clearly defined, or not redefined which was alive in the proceedings. The authorities I find support the proposition, as the issue is of a procedural nature, it should have been properly raised by the Defendants before the court prior to the close of the Prosecution's case and if raised after, leave should be granted for the Prosecution to call evidence to meet the application. In the use of the court's discretion I so order.

Submissions of the appellant - first appeal 17 In summary, the appellant submitted in its first appeal that her Honour erred in:

(a) accepting that the presumption of regularity applies to the application of the extended time limitation in s49(4) of the Act as a result of the issue of orders pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967); (b) failing to find that the prosecutor had been put on notice of the issue in relation to s49(4) of the Act before the close of the prosecution case, and that, accordingly the prosecutor should have led evidence in support of the extended time limitation in the prosecution case; (c) concluding that the prosecutor was not obliged to adduce evidence in support of s49(4) of the Act as part of the prosecution case unless there had been a formal objection or formal notice of the application; and (d) granting leave to the prosecutor to adduce further evidence in support of s49(4) of the Act after the close of the prosecution case.

18 In respect of the first contention, the appellant submitted that her Honour incorrectly applied Price v Humphries in her finding of a presumption of regularity. In particular, the appellant submitted that the reasoning in that case should be distinguished since it considered the issue in relation to an offence which required a specific consent to prosecute and an essential basis of that decision was a presumption that the clerk of the Court who received the information would ensure that the proceedings had been commenced with the requisite consent whereas the Full Bench in WorkCover v Lucon held that, in considering an application for an order to commence a prosecution pursuant to s 4(1) of the Summary Jurisdiction Act, it is not part of the judge's function to consider the application of s49(4) of the Act.

19 Alternatively, the appellant submitted that if the approach in Price v Humphries was applicable, the prosecutor had been on notice since before the commencement of the trial as to the issue of the failure of the prosecutor to satisfy the requirements of s49(4) of the Act. Failure to comply with the time limitation provisions was raised in the pre-trial notices of motion, and Kavanagh J reserved the appellant's right to renew the challenge at the appropriate time during the trial. There were also several references to the failure of the prosecutor to satisfy the requirements of s49(4) of the Act before and during the hearing. In light of those circumstances, the appellant submitted it was entitled in closing to submit that on the evidence there was no basis upon which the Court could conclude that the requirements for the operation of s49(4) were established.

20 The appellant submitted that there was no reference in the authorities identified by the parties or Kavanagh J to a requirement for a "formal objection" or "formal notice of the application" before the close of the prosecution case. In particular, her Honour, in rejecting the test formulated by Hunt CJ at CL in Environment Protection Authority v Bathurst City Council, (1995) 89 LGERA 79 failed to properly consider the authorities referred to in that case including R v Lewis [1979] 1 WLR 970 and R v Cooling (1989) 44 A Crim R 171 which indicated that it is only necessary for the question of the application of the relevant time limit provisions to be identified for it to become an issue in the course of the proceedings. Even if a formal application was required, it was submitted that the notices of motion filed at the commencement of proceedings were sufficient for that purpose as it was clear from those notices that the appellant was contending that the proceedings were out of time and that s49(4) of the Act was not available to the prosecutor.

21 Finally on this issue, the appellant submitted that the discretion to allow the prosecution to call further evidence after the close of the prosecution case is an exceptional remedy: The Queen v Chin (1985) 157 CLR 671. Given the failure to lead evidence in the prosecution case to deal with the application of s49(4) of the Act when it ought to have been foreseen, her Honour failed to apply the applicable principles as set out in The Queen v Chin.

Submissions of the respondent - first appeal 22 The respondent submitted that the grounds of appeal relating to the interlocutory judgment seek to challenge an exercise of discretion by Kavanagh J. It was a matter within her Honour's discretion as to whether or not to grant leave to the prosecutor to adduce further evidence. Applying the applicable principles in appeals against the exercise of discretion as stated in House v The King (1936) 55 CLR 499, the Full Bench should not intervene.

23 Further, evidence establishing that the proceedings were within time had been previously adduced to the Court, as differently constituted in a pre-trial hearing as to the making of orders under s4 of the Supreme Court (Summary Jurisdiction) Act: Abigroup Contractors v Inspector Maltby [2002] NSWIRComm 242. Given the history of the matter, there was not merely the presumption of regularity flowing from the making of s4 orders but the issue of the time limitations under s49 of the Act had actually been litigated before the proceedings, and there had been a finding by Wright J, that the provisions of s49(4) of the Act had been met. The relevant evidence had, therefore, been served upon and particularised to the appellant long before the matter was raised before Kavanagh J. In any event, it was submitted that the presumption of regularity did apply to the particular facts. The presumption was applied recently in an occupational health and safety case in Victoria: see Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156.

24 The respondent also drew attention to the fact that the appellant took no relevant issue with the admissibility of the evidence in the subsequent hearing before her Honour upon the issue as to whether or not it appeared from the coronial inquest/inquiry that the proceedings were within time.

25 As to the alleged failure of Kavanagh J to find that the prosecutor had been put on notice as to the issue in respect of s49(4) of the Act before the close of the prosecution's case, this is an allegation of factual error and there was evidence supporting her Honour's factual finding.

Consideration and conclusions on first appeal 26 One of the areas of contention between the parties in the first appeal was the occurrence or non-occurrence of various procedural matters. It is therefore necessary to trace the history of the proceedings, or at least the relevant parts of the proceedings for the purposes of determining the issues raised in the first appeal.

27 Orders to appear in relation to the five summonses issued against the appellant were issued on 7 February 2001. The matter was then set down for hearing before Kavanagh J. Prior to the hearing, a notice of motion was filed in each matter by the appellant which was described by her Honour in her judgment at [5] as: 1. An order setting aside the Orders made in this matter. 2. A declaration that the Orders, or some of them made in this matter, were made outside the time limits prescribed by Section 49(1) of the Act.

In the alternative, a declaration in the following terms: ... the Respondent (to the motion) has failed to satisfy the requirements of section 49(4) of the Act. ... In the alternative, a declaration in the following terms: The Coroner's Report or the proceedings do not disclose a rational basis for the view that the offence(s) or some of them appear to have been committed.

28 The orders sought in the motion, and the grounds in support, were as follows: 1. An order setting aside the Orders made in this matter. 2. A declaration that the Orders, or some of them made in this matter, were made outside the time limits prescribed by Section 49(1) of the Act. 3. An order for costs plus GST payable in connection with any costs.

B. Grounds and Reasons 1. Section 49(1) of the Occupational Health and Safety Act 1983 (NSW) ("the Act") requires that proceedings for an offence against the Act be instituted within a period of 2 years after the act or omission alleged to constitute the offence. 2. These proceedings were not instituted within the period of 2 years after the acts or omissions alleged to constitute the offences. 3. The Respondent failed, at or before launching these prosecutions, to determine that the offence(s) charged appeared from the Coroner's report or proceedings.

In the alternative: 4. In the circumstances, the Respondent has failed to satisfy the requirements of Section 49(4) of the Act so as to be able to rely upon the extended time limit provided by that section.

Further and in the alternative: 5. The Coroner's report on the proceedings do not disclose a rational basis for the view that the offence(s) or some of them, appear to have been committed.

29 The notices of motion were heard by Kavanagh J and in a judgment delivered on 12 October 2001. Her Honour dismissed the notices of motion in all matters: see WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2001) 110 IR 152. Her Honour held that s179 of the Industrial Relations Act precluded the challenge to the validity of the orders made on 7 February 2001. Her Honour refused to issue such orders or declarations in relation to s49(1) and s49(4) the Act and held the appellant's submissions were matters which could be determined at trial.

30 The appellant then made application for extension of time to appeal the decision to issue the orders. The Full Bench refused leave to appeal and dismissed the appeal on the basis that the appellant failed to raise any of the primary issues which it sought to raise on appeal at first instance: Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139.

31 The charges then proceeded to hearing before her Honour. Her Honour outlined the various occasions when the appellant raised the outstanding issue, or what they called the "abuse of process" application: [9] At a Directions Hearing on the future conduct of the prosecutions (31 January 2002), Mr Hodgkinson, for the Defendants, raised the outstanding issues in the following terms: The question of the failure to comply with the requirements of section 49 of the Occupational Health and Safety Act 1983 as meaning these proceedings are commenced out of time and therefore their continuation is an abuse of the Commission s process. The second issue was an alternate issue and that is we identified even if that primary point were wrong there is a restriction on what can be dealt with because of the way the Coronial proceedings went forth, that is, these charges did not arise as they must at least in part from the Coronial record of proceedings. ... ... Could we say this, we may not pursue the second of those issues at the outset, but we will pursue the first of the issues. ... If we pursue the second of the arguments, we will move the Court to deal with it on the voir dire . (emphasis added in the original judgment) [10] The charges then went to hearing. A plea of not guilty by each defendant was entered to each charge. During the Prosecution's case, mention was made by the Defendants of the future application related to an "abuse of process" (that had been pleaded in the Notice of Motion and held to be a matter for trial and which had been re-mentioned by the Defendants at directions hearings). For example: 27.2.2002 Defendants: ... we have indicated that we are likely to seek to resurrect the opportunity to argue that technical point on abuse of the process. ... Prosecution: ... It would assist the Prosecution immensely if, just in very short form - even only half a page - the defence could outline the nature of the application they propose to make. ... 15.2.2002 - Defendants' counsel in cross examination, Inspector Maltby of the WorkCover Authority of New South Wales: Defendants: In what circumstances did you see these particulars of proposed charges?

The Prosecution objected to question. The witness was stood down. Prosecution: There is a principle of criminal law that cuts across all jurisdictions, in that prosecutorial decisions of this nature are not reviewable by the court unless the defendant can raise some sort of issue as to abuse of process raised by them, which may or may not then lead to a relevant line of inquiry as to whether there were some mala fides or something in the prosecutor. Defendants: It does go to the question of abuse of process. The prosecutor is on notice that we have intended to bring such an application in the course of these proceedings, as is the court. It should come as no surprise. 20.3.2002 - after the close of the case for the Prosecution: Defendants: ... we have indicated through out this trial that we will at an appropriate time advance this argument as to abuse of process. Now seems to be the appropriate time given that all of the evidence of the Prosecution is before your Honour. Court: Is there only an application related to abuse of process that I am going to be asked to hear. ... Defendants: Essentially we say that these proceedings have been commenced out of time. As a consequence of being commenced out of time, no valid finding of breach can be entered against the defendant.

32 The appellant (the defendant below) then made the "abuse of process" application, which was outlined in their submissions in the following way: 4. None of the documents filed by the Prosecutor in an attempt to initiate the actions refer to either the fact of a coronial inquiry or to any reliance upon section 49(4) of the 1983 OH&SA; and 5. The Prosecutor has failed to comply with rule 219 of the Commission's Rules.

33 After refusing the prosecution's application to call further evidence, Kavanagh J referred two questions to the Full Bench pursuant to s196 of the Industrial Relations Act and s5AE of the Criminal Appeal Act which were: (1) Whether the Prosecutors have failed to comply with Rule 219 of the IRC Rules in that they failed to refer in any of the Applications for Summons, Affidavits in Support of Application for Summons, and Summonses for Prosecution filed on 12 October 1999 in the Registry of the Commission in these proceedings; (a) the fact of a Coronial Inquiry; and/or (b) s49(4) of the Occupational Health and Safety Act 1983.

(2) If the answer to question 1(a) or (b) is "Yes" whether some or all of the Summonses and/or the proceedings must be dismissed.

34 In the intervening period, the Full Bench judgment in WorkCover v Lucon was handed down. Accordingly, the referred questions were dealt with in an ex tempore decision (WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd and another [2002] NSWIRComm 1016) on 29 April 2002 by the Full Bench in the following way: ... We answer the first question 'No': see WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68. ... We answer the second question in the same way. That is, 'Does not arise'.

35 Her Honour then dealt with a new application, again termed an "abuse of process" application brought by the appellant as set out earlier. The substance of her Honour's ruling on that application has also been set out above.

36 That interlocutory judgment of Kavanagh J was then the subject of appeal to the Full Bench. In the judgment delivered on 26 September 2002, the Full Bench refused leave to appeal in light of the authorities as to the inappropriateness of interrupting criminal proceedings: Abigroup Contractors Pty Limited & Anor v WorkCover Authority of New South Wales (Inspector Maltby) (2002) 119 IR 319. The Full Bench however made the following observations as to Kavanagh J's decision to allow the prosecution to call additional evidence: [11] We observe that the prosecution's application to call additional evidence was made after the close of evidence in the proceedings at first instance. Whilst it might be contended that inconvenience is caused to the appellants by the late reception of additional evidence by the Court, it was well within Kavanagh J's discretion to allow the evidence. Her Honour has presided over a lengthy and complex trial and ultimately her discretionary judgment falls for consideration in the light of those circumstances. It is apparent that her Honour had regard to the objections of the defendants and the inconvenience caused by granting leave to the prosecution to call additional evidence but that these considerations had to be weighed against broader notions of justice. Those were matters relevant to the exercise of her Honour's discretion.

37 The observations of the Full Bench in its 2002 judgment cited in the last paragraph provide a useful starting point for the determination of the first appeal. The point is appropriately and clearly made that her Honour's decision to allow the prosecution to adduce additional evidence was essentially a discretionary decision. Once that consideration is established the appeal court must cautiously approach any challenge to the decision. It is not enough that the appeal court might themselves, collectively or individually, have taken a different approach or made a different decision. The exercise of discretion must be tainted with plain error; it must be shown, in substance, there has been an actual or constructive failure to exercise the discretion: House v The King (1936) 55 CLR 499.

38 We consider that her Honour made no error in approaching the matter in terms of the judgment of the Divisional Court (Lord Goddard CJ, Devlin and Ashworth JJ) in Price v Humphries and it cannot properly said that her Honour erred having regard to the judgment of the High Court in The Queen v Chin.

39 The leading judgment in Price v Humphries was given by Devlin J, as his Lordship then was. True it is, as the appellant contended, that an important ingredient in his Lordship's approach was reliance on the legal maxim omnia praesumuntur rite et solemniter esse acta (the presumption of regularity) in the context of an acceptance of the view that in summary proceedings in England before lay justices, the justices are entitled to assume that the clerk to the justices, or whoever issued the summons, had seen to it that it was not issued without any relevant consent or authority having been produced. His Lordship however said that the presumption is "indeed merely a facet" of the wider presumption identified by the Latin maxim.

40 However, the appellant is mistaken in contending that the principle laid down in that case is as narrow and distinguishable as it contends. A surer guide to what was found in that case is found in this extract from the judgment of Devlin J at 358: I should like to say a word about the position of the justices in regard to whether or not they should allow a case to be re-opened, because it may well be that they found it a rather confusing one. Rex v Day (1940) 27 Cr App R 168 lays it down that if the matter is one of substance the prosecution ought not to be allowed to re-open its case. On the other hand, there are authorities which show that if the matter is one of technicality, such as the proof of a statutory rule or order, or something of that sort, then the justices should allow the prosecution case to be re-opened. But where what is in issue is simply the question of whether proceedings are properly authorized, no question really arises about re-opening the prosecution case at all. I think that the application of the principle in Rex v Waller [1910] 1 KB 364 to the circumstances of this case is this: that if the prosecution is allowed without objection to close its case, then the prosecution has done all that is necessary and the summons is presumed to be a good one and properly authorized. If the defence wants to challenge that and take objection, they should take their objection before the prosecution case is closed, and having taken their objection the burden will pass to the prosecution to produce the evidence they have which shows that the proceedings were duly authorized. (emphasis added)

41 Lord Goddard CJ took a similar approach in Price v Humphries and the third member of the court, Ashworth J agreed with the judgments of both the Lord Chief Justice and Devlin J. Significantly, Lord Goddard added at 359: In a case such as this justices would do well to bear in mind that there is a distinction between an objection which goes to the merits and one which goes only to procedure. If it goes to the merits and the prosecution have failed to prove something upon which the guilt or innocence of the defendant depends, justices must be very careful about allowing cases to be re-opened and must consider the doctrine laid down in Rex v Day . But if it is only a matter which goes to procedure, as this does, and as it does in a large number of cases where the consent of the Director of Public Prosecutions or some officer is required to the proceedings, then I do not think that they ought to allow an objection which has been, so to speak, kept up the sleeve until the last minute, so that when the prosecution have been induced to say: "We have closed our case," it is then said: "You have not proved consent." I think that if they bear in mind the difference between an objection which goes to the merits and one which only goes to procedure, many of the difficulties will be cleared up.

42 We consider the approach of all the members of the Divisional Court in Price v Humphries is apposite in the present case and Kavanagh J did not err in applying that judgment. Although in some cases there may be some scope for debate as to whether a matter which goes to "the merits" and one which goes only to procedure. We do not think there was no doubt in this matter that the objection was procedural, and particularly so, when regard to what seems to have been a degree of prevarication or "blowing hot and cold" by the appellant on the issue.

43 Penultimately on this issue, brief reference should be made to The Queen v Chin. The major judgments in that case were the joint judgment of Gibbs CJ and Wilson J and that of Dawson J with which Mason J concurred. The factual circumstances of that case are significantly different from those of the present case. They therefore do not require discussion here except to note the material in The Queen v Chin in respect of which the Crown was permitted to re-open its case clearly went to the merits of the charges against the accused in a manner tangibly different to the present. However, both Gibbs CJ and Wilson J, and Dawson J, in their respective judgments made clear (at 677 and 685), that "evidence may be given in reply to prove purely formal matter the proof of which was overlooked in chief". That, too, is an available description of what occurred before Kavanagh J.

44 Incidentally, we accept that, in earlier proceedings before Wright J, when the original orders under s4 of the Supreme Court (Summary Jurisdiction) Act were made, there was evidence as to the s49(4) point which showed that the proceedings had been brought within the s49(4) limitation period. Although it may not have been necessary for his Honour to deal with that point (see Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 at [5]), what occurred at the time is sufficient to illustrate why a significant level of formality was required on the part of the appellant to raise the objection before the prosecution closed its case and also that the appellant's attempt to distinguish Price v Humphries failed. There was, on any view of the history of the matter when Kavanagh J dealt with the issue the subject of the first appeal, an appropriate basis for her Honour to consider that the presumption of regularity was available.

Judgment of 27 February 2003 (the second judgment) 45 Her Honour's judgment of 27 February 2003 (WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd) dealt with the findings of guilt against the appellant and another defendant (Mr Luis Bustamante). The only grounds of appeal pressed in the second appeal are that Kavanagh J erred in finding that the acts and omissions of the appellant led to a risk to the health and safety of employees and other persons on 10 November 1995, contrary to ss15(1) and 16(1) of the Act.

46 As was noted by Kavanagh J, the failures numbered (i) to (vi) alleged in both summonses were similar. The particulars for both charges were also in similar terms.

47 In determining the appellant's liability for the alleged offence under s15(1), her Honour began by considering the elements of the offence, in particular whether the appellant was an "employer" on the KSU site on 10 November 1995 and whether employees were "at work" on that day. Her Honour made positive findings as to both elements. Neither of these findings were challenged on appeal.

48 Her Honour then considered each of the particularised acts or omissions alleged. Of particular relevance was particular (iii), which was in these terms: Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area

49 The appellant had submitted at first instance that, as the charged gas pipe was protected by the pavers which lay above it, the position of the pipe did not expose any employee of the appellant to a relevant risk for the purposes of s15(1) of the Act. Her Honour rejected the submission in the following way: [299] … The circumstances in which the act of cutting back the charged gas supply line occurred are relevant. The act was performed within a system of work designed for the purpose of demolishing four shops and to allow other demolition work on the site including heavy construction work for the platform extension and the building of a ramp. Excavators would be used. This was known to the defendant company on 10 November 1995.

[300] Mr Bustamante knew the geography of the KSU site which I find is also relevant to my determination. To the west of the shops to be demolished was a railway line. To the east, a footpath, then Railway Parade, a road servicing the Kogarah Railway Station. Between the footpath and the rail line was a bank of small shops only (approximately) two rooms deep. The charged gas supply line cut off point was affected in a position one metre from a building alignment of a shop which was to be demolished. One point of access to the site was at the south end of the site across the footpath to the building where the charged gas supply line entered the construction site. The evidence as to what hoardings were in place on 10 November 1995 is unclear. However, the line was not cut back to allow for the easy manipulation of the type of heavy equipment to be used in demolition and construction. While the evidence reveals the pavers were taken up then placed back on 10 November 1995, the site had already been identified by the defendant company as part of a construction zone in which demolition and construction would occur.

[301] I find the existence of a charged gas supply line left on a construction site was inherently dangerous whether the line was covered with pavers or not. Pavers covering a charged gas supply line in a mall which carried pedestrian traffic is a much different circumstance to pavers covering a charged gas supply line in an area "to be" a construction site.

(The emphasis of the words "would" and "to be" occurs in the appellant's submissions.)

50 As the summons brought under s16(1) of the Act contained the same alleged failures as that brought under s15(1), the parties relied on similar submissions to those put forward in respect of the charge brought under s15(1). The only additional issue was whether the KSU site on 10 November 1995 was the appellant's "place of work" and one where it was conducting its "undertaking". Her Honour found that on the relevant date: [319] … Abigroup was at its "place of work" conducting its "undertaking" which was to supervise the disconnection of a gas supply line for the purpose of easy access, demolition and construction work to be performed on a site known as the Kogarah Railway Station Upgrade. [320] I find, further, the evidence reveals on 10 November 1995 there were persons other than Abigroup employees on site on 10 November 1995 namely AGL employees.

51 Having made those findings, her Honour found that the six alleged failures as particularised in the summons were made out, that is: [322] … I find the defendant company's failure to cut off a charged gas supply line in a position which was safe; its failure to ensure the line was not situated in an area where construction work was "to be" performed; its failure to properly protect, identify and warn of the existence of a charged gas supply line on a construction site; its failure once it left a charged gas supply line on site to provide and maintain a safe system of work given the existence of a charged gas supply line, were all acts or omissions which led to a failure by the defendant company to ensure persons not in its employ in the performance of its undertaking at its place of work were without risk to their health and safety on 10 November 1995 at the KSU site. I find the failures led to a risk to safety on this site of non-employees.

Submissions of the appellant - second appeal 52 The appellant submitted as to the second appeal that it was inherent in her Honour's reasoning that any relevant risk would only arise from the presence of a charged gas line in the vicinity of demolition and construction work involving the use of heavy machinery and equipment. Given her Honour's findings on the evidence that the only relevant work which occurred on 10 November 1995 was that the gas line, which was underneath the pavers and was then was exposed, capped and placed back underneath the pavers and that on that date, any demolition and construction work would not commence until some time in the future, the appellant submitted that her Honour erred in finding that the offence was proven for 10 November 1995. It was submitted that there was no relevant finding (and there could be no such finding) that a risk to the health and safety of employees and other persons arose on 10 November 1995.

Submissions of the respondent - second appeal 53 The respondent submitted that the appellant's submissions confuse risk with present danger and relies on the judgment of the English Court of Appeal in R v Board of Trustees of the Science Museum [1993] 3 All ER 853, and in particular the statements of Steyn LJ at 858 that a risk refers not to a present danger, but the possibility of danger. It was further submitted that the fact that other works needed to be undertaken to expose the risk that the defendant had allowed to be created does not deny the liability under the relevant sections of the Act.

Consideration and conclusions as to the second appeal 54 We do not consider that the appellant's submissions in this area of its appeal should not be accepted. We consider that her Honour correctly found (for the reasons recorded) in her judgment that there was a relevant risk to the health and safety of employees and other persons on 10 November 1995.

55 Generally speaking, we accept the approach of the respondent that the appellant's submissions confuse risk with present danger. The conclusion that ss15 and 16 of the Act are concerned with not merely present danger but also risk to the health and safety of employees and non-employees, in the latter case, arising from the conduct of the employer's undertaking at the employer's place of work, is plain from the text of both statutory provisions.

56 Although it might be slightly clearer on an examination of the terms of s16(1) by the reference there to the obligation of the employer to ensure that relevant persons "are not exposed to risks to their health or safety", we do not consider that there is any material difference in the way in which s15(1) is formulated. It will be recalled that the obligation in s15(1) is on the employer to "ensure the health, safety and welfare at work of all the employer's employees". Although the words "risk" or "risks" are not used in that provision, it follows as a simple matter of logic that a requirement to ensure (in the words of the section "shall ensure") the health, safety and welfare of one's employees clearly entails an obligation to ensure that such employees are not exposed to risks to their health and safety.

57 The significance of the use of the word "ensure" in both s15(1) and s16(1) has been recognised since the initial consideration by this Court and its predecessors of the Act. Watson J observed in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470 that there was no reason to construe the words "to ensure" as other than in terms of their ordinary meaning of "guaranteeing, securing or making certain". See also Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432 at 452 and Haynes v CI & D Manufacturing Pty Limited (1995) 60 IR 149 at 157. In the latter case, the Full Court said: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o secure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. The importance of this aspect of the OHS Act to the nature and scope of the offences it creates may be demonstrated by reference to the Minister's Second Reading Speech in introducing the Bill for the OHS Act into Parliament: see Interpretation Act 1987, s 34(2)(f).

58 We also accept the submission of the respondent that the fallacy in the appellant's approach is demonstrated, not only by authorities of this Court but also by the judgment of the Criminal Division of the English Court of Appeal in R v Board of Trustees of the Science Museum, a case concerned with s3(1) of the Health and Safety At Work etc Act 1974 (UK), a provision which imposed a duty on employers to conduct their undertakings "in such a way as to ensure, so far as is reasonably practicable, that persons not in [their] employment who may be affected thereby are not thereby exposed to risks to their health and safety". Although the language of that provision is materially different to that of the New South Wales statute and we would therefore consider it more appropriate to rely on authorities of this Court, and its predecessors, which are directly in point, nevertheless in the judgment in that matter (which was given on behalf of the court by Steyn LJ) there is this useful insight into the flaw in the appellant's approach (at 858 - 859): The starting point must be the ordinary meaning of the language of section 3(1). In our judgment the interpretation of the prosecution fits in best with the language of section 3(1). In the context the word "risks" conveys the idea of a possibility of danger. Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward. The ordinary meaning of the word "risks" therefore supports the prosecution's interpretation and there is nothing in the language of section 3, or indeed in the context of the Act, which supports a narrowing down of the ordinary meaning. ... The adoption of the restrictive interpretation argued for by the defence would make enforcement of section 3(1) ... more difficult and would in our judgment result in a substantial emasculation of a central part of the Act of 1974 . The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred. (emphasis added) See also the important consideration of these issues by the Vice-President in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings [2004] NSWIRComm 207 at [123] to [147], particularly at [130] to [140].

Judgment of 24 June 2003 (the third judgment) 59 Her Honour's judgment of 24 June 2003 dealt with the penalties or fines to be imposed and associated issues: WorkCover Authority of NSW (Insp Maltby) and Anor v Abigroup Contractors Pty Limited and Anor [2003] NSWIRComm 201. As indicated earlier, one of the issues raised in the third appeal is the severity of the penalties imposed and relates to the appellant's submission at first instance that the seriousness of each offence must be assessed in light of the fact that it complied with industry practices at the time of the breaches of the Act. As to that submission, her Honour referred to her consideration of the issue in the judgment as to the appellant's guilt (the second judgment), where she held: [340] Even if the court could accept it was safe industry practice to identify a hazard generally, rather than with particularity, by stakes and bunting, the defendant company would still have to defend the specific allegation the presence of the charged gas supply line on the KSU construction site provided a risk to safety in the relevant period.

60 Her Honour's consideration of the issue in the judgment continued: [22] I reject the proposition "industry practice" can be used to alleviate the gravity of any of these offences. The defendant company must be pro-active to ensure it provides a safe workplace for its employees and others. It must be vigilant and take all practical precautions to ensure safety. It was established as fact the defendant company left a "charged" gas supply line on a construction site and I cannot accept, if it was industry practice at the time to simply mark such a hazard with a stake and bunting, it should be considered a mitigating factor in penalty against this defendant company.

61 Kavanagh J found that that the risk to safety as to each breach of the Act was foreseeable and the consequences of each breach, in terms of the number of deaths and extent of injuries caused as well as the damage to property in the area was "reflective of the degree of seriousness of the offence" (at [26]). Her Honour then considered the relative degree of seriousness of each offence in the following way: [27] In terms of the seriousness of each offence I would rank the offences for which the defendant company has been found liable in the following way: the offences on the day of the explosions, 4 December 1995, are most serious as the defendant company knew the demolishers could come onto its KSU site but it failed to have anyone at the site to oversee any activity. Further, the defendant company knew the stake and bunting were missing from the disconnection point of the charged gas supply line which marked it as a hazard before the defendant company left the site. It failed to even replace its hazard warning. The use of an excavator on a site on which existed such a hazard, unmarked, was most serious.

[28] I determine in the preceding period, the two weeks plus in which demolition and then construction work was performed, as the next most serious two breaches of the Act. In that period, the defendant company allowed heavy equipment to move about the site where the hazard was marked with a stake and bunting. The hazard was identified with no particularity. It was five metres of a "charged" gas line left on the site. Evidence revealed some of its own employees could not identify the nature of the "hazard" as marked.

[29] I assess the acts and omissions of the defendant company on 10 November 1995 as the least serious of the offences but are nonetheless two grave breaches of the Act. The defendant company allowed the disconnection of a charged gas supply line to sit within one metre from a building to be demolished. It knew this was to be a construction site.

62 On the issue of totality, her Honour considered the judgment of the High Court in Pearce v The Queen (1998) 194 CLR 610 and the judgments of the Court of Criminal Appeal in R v Hammoud (2000) 118 A Crim R 66 and R v Gorman [2002] NSWCCA 516 before setting out the following conclusions: [68] I approach the question of totality and accumulation in the circumstances before me having regard to the specific circumstance of each individual offence in the following way: while the defendant company submitted each charge contains common elements and this should be perceived as part of one criminal episode, and while many of the failures "continued" on in each period, I find the circumstances and activity on site over the three week period differed dramatically between each relevant period identified in the charges. I find the risks to safety were therefore different risks in each relevant period. I do not perceive this as a case where all five breaches arise out of a single, discrete, criminal episode. I reject the submission that given there are some common elements to each offence, the effect is to make this one continuous course of conduct or one episode of criminality. The different circumstances during each relevant period created different risks.

[69] I now consider the circumstances within the identified periods. There were two charges brought under the Occupational Health and Safety Act 1983 in each of the first two identified periods. Under the Act, there is an expressed legislative intent to place different obligations on an employer to provide safe working for its employees (s15) where it must "ensure" their health and safety at work rather than an employer's obligation in the conduct of its undertaking at its place of work to ensure others are not exposed to risks to their health and safety (s16).

[70] I find in the first two identified periods, namely, 10 November 1995 and the period between 11 November 1995 and 3 December 1995 (inclusive) there were safety risks to both employees and others on the same site which risks had some common elements. However, within each period, allowing there some commonality in each charge, there were two separate risks to safety as defined in the legislation one under s15(1) and one under s16(1).

63 Her Honour then referred to the consideration of the conceptual overlap between ss15 and 16 of the Act by the Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [44] before concluding: [72] I therefore find the charge under s15(1) and the charge under s16(1) covering the period 10 November 1995 have some common elements to attract accumulation as to penalty. The charges brought under s15(1) and s16(1) covering the period 11 November to 3 December 1995 ( inclusive) also attract some accumulation as to penalty.

[73] However, while the applicable principles compel a degree of accumulation of the penalties to be imposed for individual offences with some common element, each penalty must also reflect the objective seriousness of the offence, that is, regard is had to the individual circumstances of each offence: or, as otherwise expressed, regard is had to what the defendant company "has done" to put at serious risk the safety of both its own employees as well as other persons on its work site. I also take into account the subjective features placed before me. In this particular circumstance, the court also ensures the penalty reflects the need for deterrence both general and specific.

64 Her Honour then dealt with the appropriate penalty to be imposed for each offence and then applied the "totality principle in the accumulation of penalty to the extent to which each penalty reflects some common elements but also having regard to the specific circumstances of each individual offence", to reduce the penalties for the breaches under s15(1) and s16(1) of the Act on 10 November 1995 and the breaches of the two sections between 10 November 1995 and 4 December 1995 (at [76]).

65 The penalties imposed for the five convictions were as follows:

(a) for the breaches under s15(1) and s16(1) of the Act on 10 November 1995 after the application of the principle of totality, the sentence was reduced from $600,000 to $500,000, resulting in two fines of $250,000; (b) for the breaches under s15(1) and s16(1) of the Act between 10 November 1995 and 4 December 1995 (in substance between 11 November and 3 December 1995), after the application of the principle of totality, the sentence was reduced from $700,000 to $600,000, resulting in two fines of $300,000; and (c) for the breach under s16(1) of the Act on 4 December 1995, as this was a discrete offence, there was said to be no reason to reduce the fine of $400,000, which was the fine imposed. Submissions of the appellant - third appeal 66 The grounds of appeal as to the penalties imposed were that her Honour erred in:

(a) the application of the totality principle by failing to make any reduction to the penalties imposed so as to avoid multiple and/or double punishment for acts and omissions which were common elements in each of the charges over the entire charge period from 10 November 1995 to 4 December 1995; (b) finding that the appellant's adherence to industry practice was of no relevance as a mitigating factor on penalty; and (c) that the total penalty imposed on the appellant was manifestly excessive.

67 As to the first ground of appeal, the appellant submitted that a comparison of the terms of the initiating summons for each of these three periods shows a substantial overlap in relation to the alleged failures and particulars over the entire charge period. The overlap is reflected in her Honour's ultimate findings in relation to each of the charge periods. It was submitted that for each charge period, Kavanagh J made core findings which identified the following common elements:

(a) failure to ensure that a charged gas supply line was not situated in an area where work involving heavy machinery would occur; (b) failure to properly protect, identify and warn of the existence of a charged gas supply line; and (c) failure to design a safe system of work given the existence of a charged gas supply line on site.

68 Given these common elements, it was submitted that her Honour erred in failing to make a reduction to avoid multiple punishment for the common elements over the entire charge period. It was submitted that the three charge periods selected by the prosecutor were all part of a single and ongoing undertaking and it was in fact open to the prosecutor to proceed by way of a single charge under s15(1) and a single charge under s16(1) of the Act and this fact should have been reflected in the overall penalty imposed. The appellant referred to the judgment of Curtis AJ in WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421, in which his Honour granted a reduction to the penalty imposed on the principal of the company subcontracted by the appellant to demolish the shops at the Kogarah site, for offences covering two charge periods.

69 As to the common elements in charges pursuant to ss15(1) and 16(1) of the Act within the same charge period, the appellant submitted that a much more substantial reduction to the penalties imposed was necessary to avoid double punishment because the specified failures and particulars in relation to each respective charge period were identical. The appellant submitted that the rationale of the judgment of the Full Bench in Crown v Keenan should apply with added force to the present case because, unlike the facts in that case, the particulars in the present case for the related charges were identical.

Submissions of the respondent - third appeal 70 The respondent submitted that the appellant has not identified any "error in process or law" in her Honour's judgment as to penalty. As to the issue of totality, it was submitted that the charges were distinct, as between s15 and s16 where the liability was distinct. The charges were also distinct temporally. The facts of the case revealed distinct risks occasioned to the members of the public and the workers on the site. As to the appellant's submission that the total penalty was manifestly excessive, the respondent submitted that the present offences were arguably the most serious objectively to come before the Court under the Act. It was submitted that the sentence most analogous to the present sentences was that imposed in DPP v Esso Australia Pty Ltd [2001] VSC 253 where there were the same number of deaths but fewer injuries as a result of the risks caused by the defendant. In that case, Cummins J imposed a total fine of $2,000,000 as a result of the accumulation of 11 sentences, for charges carrying lesser initial maximum penalties than in the present proceedings, that is $250,000.

71 The respondent submitted that the Full Bench should not have regard to the judgment of Curtis AJ in WorkCover v Robert Josef and the penalties imposed therein since the respondent submitted that his Honour was in error in his application of the totality principle and those judgments were presently under appeal.

Consideration and conclusions on third appeal 72 The appellant's key contention on the third appeal was that her Honour erred in her application of the totality principle, in particular in failing to determine the common elements in the five offences and making appropriate allowances for that commonality so as to ensure that the penalty imposed was appropriate to the overall criminality of the offences. That is, a proper application of the totality principle would have resulted in a substantial accumulation or reduction in the total monetary penalty otherwise imposed.

73 The determination of an appropriate sentence is clearly an exercise of the trial judge's discretion. Necessarily, the application of the principle of totality is also an exercise of discretion: compare, for example, R v Hammoud (2000) 118 A Crim R 66 at [7].

74 The principle of totality was described by Kirby J in Postiglione v The Queen (1997) 189 CLR 295 at [341] in the following way: But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment ... it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.

75 In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703 - 704 the Court of Criminal Appeal adopted the statement of the principle by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. And, of course, the judgment of the High Court in 1998 in Pearce v The Queen emphasised the importance and indeed, the necessity, of ensuring that the principle of double jeopardy is not infringed in the sentencing process.

76 The correct approach to applying the principle of totality in proceedings brought under the Act was set out by a Full Bench of this Court in Crown v Keenan in the following way: [36] This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce [ v The Queen (1998) 194 CLR 610] and Mill [ v The Queen (1988) 166 CLR 59]. [37] We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. [38] In accordance with Pearce , we must first consider the appropriate penalty for each offence, assessed separately.

77 This approach is well established in sentencing cases generally and was confirmed in the recent High Court judgment in Johnson v The Queen [2004] HCA 15 where the Court dismissed the appellant's submission that there was an inconsistency between Mill v The Queen (1988) 166 CLR 59 and Pearce v The Queen.

78 The application of the principle of totality in the court below is challenged on two levels. First, whether the criminality across the time period, that is from 10 November 1995 to 4 December 1995 inclusive, constituted a single episode of criminality and secondly, whether there was sufficient consideration of the commonality between the charges brought under ss 15 and 16 of the Act for the time periods of 10 November 1995 and the period between 11 November 1995 and 3 December 1995 inclusive. We do not understand that the appellant challenges the initial fines formulated by her Honour but only the way in which they have been aggregated, or more precisely, the appellant contends that the principle of totality has not been appropriately applied by her Honour.

Common elements for offences across the time periods 79 The key question is whether the risks in the three time periods (10 November 1995, 11 November 1995 to 3 December 1995 and 4 December 1995) were different so as to constitute a different criminality or to remove from consideration the contention that there was a single episode of criminality across the entirety of the period.

80 The approach to determining the common elements in multiple offences was set out by the High Court in Pearce v The Queen the following way: [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. … [42] It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements"[Sir John Barry, The Courts and Criminal Punishments, (1969) at 14]. It should be approached as a matter of common sense, not as a matter of semantics.

81 The application of the principle in this Court was discussed by the Full Bench in Crown v Keenan at [31] to [35]. The Full Bench in that judgment referred to the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284 which considered the approach to be adopted at [29] to [30] and then at [37] where it was stated: [37] Taking all those matters into account, the assessment of each of the offences is to be approached in the terms set out in Pearce v The Queen . It is therefore necessary to assess the appropriate penalty in relation to each charge and then apply the principle of totality. Although at one stage I considered that the second charge was the more serious, I have now concluded that each of them is to be regarded as equally serious. Each charge is circumscribed to an extent and each is specific and limited to a particular feature of an overall system or method of work, although the first charge relates to a failure to provide appropriate equipment. Having due regard to the various mitigating features referred to, and the particular circumstances of the defendant, the appropriate penalty in relation to the charge in matter number IRC99/1609 is $65,000 and the penalty in relation to the charge numbered IRC99/1610 should also be $65,000. The principle of totality, as discussed in Pearce v The Queen , then requires consideration of the overall culpability or criminality attributable to the defendant from both convictions, and in that process ensuring that there is no "double counting" of the culpability of the defendant from the respective offences. Approaching the matter in that way, I consider that the overall culpability of the defendant, (bearing in mind the significant practical overlap between the two offences, and the aggregate culpability arising from the effect of both breaches occurring at the same time and being evidenced by a single incident) would result in a total fine of $90,000. Having regard to the separate assessments of the culpability of the defendant in relation to the two offences, fines of $45,000 should be imposed in each matter.

82 The application of the principle of totality so as to ensure that the defendant is not punished more than once for multiple offences has been considered by this Court in various ways including: (a) whether there is "a considerable overlap between the failures charged in the two offences" (Crown v Keenan at [48]); (b) whether there is any "overlap of culpability or criminality of the defendant arising from both convictions" (May v Brooker Marine Products Pty Limited [2001] NSWIRComm 101 at [47]); and (c) whether the offences arise "from the same set of facts and the gravamen of the offences is substantially similar" (WorkCover Authority of NSW v Company B Ltd [2000] NSWIRComm 119 at [71]).

Common elements of charges brought under s15 and s16 of the Act 83 It is clear that charges brought under s15 and s16 of the Act raise different issues as to the nature of criminality with respect to the charges brought under each section. The relationship between the two sections was discussed by the Full Bench in Crown v Keenan in the following terms: [44] The appellant was charged with an offence under both sections 15 and 16 of the Occupational Health and Safety Act . The relationship between these provisions was considered by Wright J, President, in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362. (Leave to appeal from this decision was refused: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16.) His Honour considered an objection that a summons under s16(1) used the language of s 15(2) to describe a charge under s16(1) and was thereby invalid. His Honour said (at 372 - 373): However, on their proper construction, s15 and s16(1) are to be seen as in part parallel provisions. Both impose liability on employers. Section 15 imposes liability to "ensure health, safety and welfare at work of all of the employer's employees"; whereas s16(1) imposes an obligation to ensure that persons who are not employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst at the employer's place of work. Both provisions contain a subsection which provides that, if in proceedings against a person for an offence under the section, the court is not satisfied that the person contravened the section, but is satisfied that the act or omission concerned constituted a contravention of the other section, the court may convict the person of an offence against that section: (sub-sections 15(4) and 16(3)). Some confirmation of the interrelationship of these sections is provided in the useful discussion by Bauer J in his Honour's judgment in Workcover Authority of New South Wales (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, matter number CT 1176/94, 10 August 1995) at pages 24-25. See also his Honour's discussion of the elements of the offence created by s16(1) at page 12 of that judgment. Without seeking to be exhaustive, there are various circumstances in which an employer may have a duty under s16 to a " non-employee". For example, a person could be present at the employer's place of work as an independent contractor, or pursuant to another kind of contract or as an invitee. At least in some of the relevant circumstances the "non-employee" would be there to carry out work; and thus potentially subject to the system or systems of work, or lack of them, that might occur at the employer's premises. Of course, s16(1) is not limited to circumstances where a " non-employee" is at the employer's premises carrying out work. While the criterion upon which the provision operates is that such persons not be exposed to risk to their health or safety arising from the conduct of the employer's undertaking, without being categorical, that duty would often arise when a non-employee is present and performing work. Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas (1995) 37 NSWLR 150 at 153) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant. What is relevant is that both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different. [emphasis added in original judgment]

84 We have earlier noted that it does not appear that the appellant challenged the initial fines formulated by her Honour. By that we mean the fines imposed in paragraph [75] of her Honour's judgment in which it was indicated what the appropriate penalty to be imposed for each offence was prior to the application of the principle of totality. In any event, we consider the assessment of those penalties as correct. It is convenient to here set out paragraph [75]: [75] Approaching these cases on the principles set out in Pearce , Keenan, Hammoud and Gorman, the appropriate penalty to be imposed for each offence is as follows: In Matter IRC 5432 of 1999 I find the defendant guilty. The defendant is fined the sum of $300,000. In Matter IRC 5433 of 1999 I find the defendant guilty. The defendant is fined the sum of $300,000. In Matter IRC 5436 of 1999 I find the defendant guilty. The defendant is fined the sum of $350,000. In Matter IRC 5434 of 1999 I find the defendant guilty. The defendant is fined the sum of $350,000. In Matter IRC 5438 of 1999 I find the defendant guilty. The defendant is fined the sum of $400,000. A total penalty for the five offences is $1.7 million.

85 It is also relevant to note the respondent's submissions at first instance, which were repeated on appeal. Although strenously rebutting any suggestion that the separate offences under s15 (of which there were two) and under s16 (of which there were three) could be said to form the one criminal enterprise or episode of criminality, the respondent nevertheless accepted there was a considerable degree of commonality as between the s15 and the s16 charges for the same periods of time (that is, the s15 and the s16 charge in proceedings IRC99/5432 and 5433, both in respect of 10 November 1995 and charge numbers IRC99/5436 and 5434, both in respect of the period 11 November to 3 December 1995 inclusive).

86 It is now useful to refer to the way in which her Honour dealt with the application of totality in paragraph [76] of the judgment. What her Honour said in that paragraph is as follows: [76] It is now necessary to apply the totality principle in the accumulation of penalty to the extent to which each penalty reflects some common elements but also having regard to the specific circumstances of each individual offence: In Matter Nos 5432 and 5433 of 1999 related to the breaches under s15(1) and s16(1) of the Occupational Health and Safety Act 1983 on 10 November 1995 in the totality I reduce the sentence from $600,000 to $500,000. Therefore: In Matter No 5432 of 1999, I fine the defendant the sum of $250,000. In Matter No 5433 of 1999, I fine the defendant the sum of $250,000. In Matter Nos 5436 and 5434 of 1999 related to the breaches under s15(1) and s16(1) of the Occupational Health and Safety Act 1983 between 10 November 1995 and 4 December 1995, in totality, I reduce the sentence from $700,000 to $600,000. Therefore: In Matter No 5436 of 1999, I fine the defendant in the sum of $300,000. In Matter No 5434 of 1999, I fine the defendant in the sum of $300,000. In Matter No 5438 of 1999 which I find a discrete offence under s16(1) of the Occupational Health and Safety Act 1983, I find no reason to reduce this fine. In Matter Nos 5438 of 1999, I fine the defendant in the sum of $400,000.

87 It will be noted that there was no reduction in the penalties having regard to the common elements of any of the offences as between the respective time periods; further, in relation to the first two time periods (that is, 10 November 1995 and what was, in fact, the period 11 November to 3 December 1995), there was a reduction in penalties from the individual offences of $50,000, that is, in the case of the two offences relating to the single day of 10 November from $300,000 to $250,000 and in relation to the two offences occurring in the November/December period from $350,000 to $300,000. It is to be recalled that there was, as was accepted by the respondent on appeal, a substantial commonality between the elements of at least the four offences. It is instructive to refer to the way in which the appellant referred to these matters in its submissions. What it said was:

59. The charges against the appellant covered three discrete periods: i) Charges alleging breaches of ss15(1) and 16(1) of the Act on 10 November 1995. In essence, these charges were directed to the cutting and capping of the gas line in preparation for demolition work. ii) Charges pursuant to ss15(1) and 16(1) of the Act in relation to the period between 10 November and 4 December 1995 (the middle period). It was confirmed by the prosecutor that these charges were confined to the period from 11 November 1995 to 3 December 1995 (inclusive). The charges for the middle period repeated the allegations for 10 November 1995 and added particulars relating to the carrying out of demolition work in the vicinity of the gas line. iii) A charge alleging contravention of s16(1) of the Act on 4 December 1995. This charge repeated the allegations made in the other charges with added particulars in relation to the use of an excavator and the gas explosions on 4 December 1995. 60) Comparison of the terms of the initiating summonses for each of these three periods shows a substantial overlap in relation to the alleged failures and particulars over the entire charge period. 61) The summonses for the middle period are largely identical to the charges for 10 November 1995 except for the following: i) the summonses for the middle period add failure (v); ii) the summonses for the middle period add particulars 8 to 10 and 12, and iii) the summonses for the middle period omit particular 7 of the charge in relation to 10 November 1995.

88 We do not understand the respondent to take significant issue with the appellant's descriptions of these matters. Once it is accepted, which we do, that there is a substantial degree of commonality between the various offences, and particularly so for the first four of them, and some degree of commonality between those four offences and the fifth (albeit much less than the degree of commonality which existed between each of the first four offences considered together), it is clear that her Honour has not applied the doctrine of totality correctly and has not fully acted in accordance with the approach set out in Crown v Keenan.

89 That conclusion means that in sentencing the appellant there has been a significant degree of double jeopardy imposed on it which, of course, is not only contrary to the approach adopted in Crown v Keenan but also that taken by the High Court in Pearce v The Queen. It might be assumed that the courts, in developing the principle of totality, were addressing the importance of substance over form, as was the High Court in Pearce v The Queen.

90 Having reached the conclusion that her Honour relevantly erred in this respect, it becomes a question of re-sentencing the appellant. As earlier noted, we do not understand either party to take issue with her Honour's primary findings which resulted in fines of $300,000 in respect of the offences which were first in time, fines of $350,000 each in respect of the offences second in time, and a single fine of $400,000 for the offence last in time. We consider that once appropriate regard is had to the common elements of the various offences, particularly those of the first four offences and to a lesser degree the commonality or overlap of the fifth offence with the earlier offences, the appropriate penalties should be as follows:

(1) in Matter Nos IRC 5432 and 5433 of 1999 fines of $175,000 for each offence;

(2) in Matter Nos IRC 5436 and 5434 of 1999 fines of $225,000 for each offence;

(3) in Matter No IRC 5438 of 1999 a fine of $300,000; making the total fines $1,100,000, of which a moiety should be paid to the respondent. When the penalties are thus adjusted, we consider that there remains no basis for the appellant's contention that the penalties imposed are manifestly excessive.

91 Lastly, as to the third appeal, reference should be made to the contention of the appellant that although her Honour found that the methods used by the appellant to mark the gas supply line were inadequate, her Honour did accept that those methods were in accordance with accepted industry practice at the time of the offences. In that context, the appellant submitted that her Honour erred in holding at paragraph [22] of the third judgment that the appellant's adherence to industry should be disregarded as a mitigating factor. What her Honour said was: [22] In consideration of the submission of the defendant company it complied with industry practices at the time of these breaches of the Act and therefore the seriousness of each offence must be assessed in that perspective, I rely on words in the judgment as to liability where the court noted at [340]: Even if the court could accept it was safe industry practice to identify a hazard generally, rather than with particularity, by stakes and bunting, the defendant company would still have to defend the specific allegation the presence of the charged gas supply line on the KSU construction site provided a risk to safety in the relevant period. I reject the proposition "industry practice" can be used to alleviate the gravity of any of these offences. The defendant company must be pro-active to ensure it provides a safe workplace for its employees and others. It must be vigilant and take all practical precautions to ensure safety. It was established as fact the defendant company left a "charged" gas supply line on a construction site and I cannot accept, if it was industry practice at the time to simply mark such a hazard with a stake and bunting, it should be considered a mitigating factor in penalty against this defendant company.

92 Having carefully considered the terms of her Honour's findings and conclusion in relation to this matter, we can discern no error in law or in principle in the approach taken. However, we do not consider that her Honour was seeking to lay down any general or overriding principle as to industry practice. Rather, her Honour paid particular regard to circumstances of the particular industry practice, the nature of the hazard or hazards that had not properly been attended to by the approach adopted by the appellant and then assessed those matters in the context of the requirements of the statute. So considered, we consider that her Honour was making a specific finding in respect of the particular offences before her. Our conclusion in that respect only serves to emphasise that there is an absence of error in this part of her Honour's judgment.

93 Further, in respect of the issue of industry practice, our understanding of the submissions of the appellant is that it seeks to have established as a principle that if there is a breach of the statute and it is found that the approach adopted by a defendant was consistent with industry practice at the time, that should, as a matter of general principle, be considered a mitigating factor in sentencing the defendant found to be in breach of the statute. We do not consider that any principle to that effect is correct and we have no intention in establishing it as a principle in this case. Any such general principle should be rejected and we do so.

Costs 94 The one remaining issue is the issue of costs. Having regard to the limited success of the appellant in relation to the appeal we consider that the appellant should pay 75 per cent of the respondent's costs of the appeal.

Orders 95 The parties should within 14 days seek to reach agreement as to the appropriate form of short minutes for the orders to be made consequent upon our determination of the appeal. If no agreement is reached by the parties, the appellant and respondent shall each bring in short minutes of the orders within 21 days. ____________________________

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