Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales - [2004] NSWIRComm 270 - NSWIRComm 2004 case summary — Zoe

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Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales

[2004] NSWIRComm 270

Industrial Relations Commission (NSW)|2004-07-01|Before: Wright J, Walton J, Staunton J

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Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Wright J, Walton J, Staunton J

Source

Original judgment source is linked above.

Judgment (140 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 APPELLANT: Abigroup Contractors Pty Limited PARTIES : RESPONDENT: WorkCover Authority of New South Wales (Inspector Maltby) FILE NUMBER: IRC 3738 of 2003 CORAM: Wright J President; Walton J Vice-President; Staunton J Appeal - Occupational health and safety - Whether trial judge erred in permitting prosecutor to reopen case to deal with limitation issue - Whether trial judge erred in finding appellant guilty of offence when risk or potential danger but not present danger found to exist - Whether principle of totality had been adequately taken into account in sentences imposed - Appeal upheld in part - Costs. CATCHWORDS : Occupational health and safety - Appeal - Whether trial judge erred in permitting prosecutor to reopen case to deal with limitation issue - Whether trial judge erred in finding appellant guilty of offence when risk or potential danger but not present danger found to exist - Whether principle of totality had been adequately taken into account in sentences imposed - Appeal upheld in part - Costs. Criminal Appeal Act 1912 s5AA s5AE Health and Safety At Work etc Act 1974 (UK) s3 LEGISLATION CITED : Industrial Relations Act 1996 s196 Occupational Health and Safety Act 1983 s15 s16 s49 Supreme Court (Summary Jurisdiction) Act 1967 s4 Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 Abigroup Contractors v Inspector Maltby [2002] NSWIRComm 242 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 DPP v Esso Australia Pty Ltd [2001] VSC 253 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Haynes v CI & D Manufacturing Pty Limited (1995) 60 IR 149 House v The King (1936) 55 CLR 499 Johnson v The Queen [2004] HCA 15 May v Brooker Marine Products Pty Limited [2001] NSWIRComm 101 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Price v Humphries [1958] 2 QB 353 R v Board of Trustees of the Science Museum [1993] 3 All ER 853 R v Cooling (1989) 44 A Crim R 171 R v Gorman [2002] NSWCCA 516 CASES CITED : R v Hammoud (2000) 118 A Crim R 66 R v Holder [1983] 3 NSWLR 245 R v Lewis [1979] 1 WLR 970 The Queen v Chin (1985) 157 CLR 671 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2001) 110 IR 152 WorkCover Authority of NSW (Insp Maltby) v Abigroup Contractors Pty Limited [2002] NSWIRComm 187 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd and another [2002] NSWIRComm 1016 WorkCover Authority of NSW (Insp Maltby) v Abigroup Contractors Pty Limited and Luis Bustamente [2003] NSWIRComm 35 WorkCover Authority of NSW (Insp Maltby) v Abigroup Contractors Pty Limited and Luis Bustamente [2003] NSWIRComm 201 WorkCover Authority of NSW v Company B Ltd [2000] NSWIRComm 119

[22]

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.

[28]

(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.

[39]

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.

[59]

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?

[91]

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].

[115]

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.

[121]

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.

[123]

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]

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales

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