[2016] ACTSC 158

The appellant is to advise the Canberra Times and Australian Broadcasting Corporation of its conviction and the penalty imposed within seven days.

APPEAL - GENERAL PRINCIPLES - appeal from the ACT Magistrates Court - appeal against sentence - appeal against fine - whether the sentence was manifestly excessive - appeal dismissed

OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 32 of the Work Health and Safety Act 2011 (ACT) - failure to comply with a health and safety duty - defendant small company - residential premises - fall from ladder - plea of guilty - general and specific deterrence

Inspector May v HG Nielson & Co Pty Ltd & Anor [2006] NSWIRComm 403

1. This matter is an appeal from a decision of the Chief Magistrate that was given on 2 November 2015. It arose from a workplace accident in which a young man, Mr Thomas McCoy, then aged 19, suffered orthopaedic injuries when he fell about 3.1 metres. Although there is perhaps a little confusion as to the nature of the accident, I think it is clear that the primary problem that existed was the failure to secure the ladder, rather than the issue of safety harnesses.

2. Her Honour imposed a fine of $140,000 and also made an order under s 236 of the Work Health and Safety Act 2011 (ACT) relating to the publishing of the conviction and the penalty. The latter point is not of any relevance today.

3. The appellant says that the fine of $140,000 is manifestly excessive. That fine was imposed under s 32 of the Work Health and Safety Act 2011 (ACT). As Mr Pappas has pointed out, that section provides a graded level of fines, depending on the person or entity that committed the offence. Because the appellant in this case was a body corporate it was exposed to a fine of $1,500,000.

4. Her Honour, in her decision, noted and took into significant account the fact that there was an early plea of guilty and that the appellant company provided assistance to the investigation. In addition, her Honour noted that the conduct of Mr and Mrs Finnigan, who are the principals of the company, following the accident was exemplary and included, for example, their visiting Mr McCoy in hospital, their taking him back to work after about six or eight weeks, and the fact that they have generally looked after his interests and also improving the general safety environment in which their employees work.

5. Her Honour also noted that the company is a relatively small company employing 12 staff, the majority of which seem to be apprentices. That fact reveals two results; one in favour of the company and one against. In favour is that the company is providing employment to young people in the community who wish to be apprenticed in the electrical industry. The downside is that when young people are employed, there is a very significant obligation to provide a safe working environment. That would not include, as happened in this case, not only a deficient safety system but also leaving the employees alone as occurred when Mr Finnigan left the work place on other business.

6. Returning then to the question of manifestly excessive, I made the point when learned counsel for the appellants raised the question of what manifestly excessive is, that there needs to be a range in order to glean whether a fine is or is not plainly too high. His response was that there are so few cases of similar facts that a range cannot be established, rather one should look at the general circumstances of this particular offence and come to a decision based on these circumstances as to whether or not the fine is manifestly excessive.

7. Mr Williamson, who appears for the respondent, said that is not a correct approach, rather the research should not be limited to cases that are necessarily the same but should extend to a much broader range of work safety cases which would assist to establish a range.

8. When one is dealing with whether or not a fine is manifestly excessive one necessarily has to decide if it is excessive of some parameter. If one cannot identify the parameter it makes it very difficult to come to a conclusion that a particular fine is patently more than it should be. There may be cases where it is simply impossible for a range to be established, however, I do not think this is such a case. I think that the appellant should have been in a position to indicate an appropriate range to the learned Chief Magistrate.

9. Another point raised in support of the appeal is the manner in which her Honour dealt with the financial information that had been provided to her in respect of the financial dealings of the company. Essentially her Honour seems to have been told that the company had a net profit in the financial year before the hearing of $300,000.

10. Mr Pappas submitted that to use such information as an indicator of the financial success of the company is unfair, especially if one takes into account that the amount does not include the earnings of the principals. If one were to factor in, even on an average earnings basis, their likely earnings then the $300,000 would be significantly diminished. Her Honour, however, does in fact take into account that the earnings probably included the salary of the directors. She then states, "No other information is available to me regarding the company's financial position".

11. Mr Pappas correctly pointed out that in discussion counsel who appeared for the appellants before her Honour did raise the point and say that perhaps more financial information could be made available. The fact is, however, that it was not made available and if any basis for the appeal is to rest on the financial question one would have thought that there would have been such information put before her Honour in the detail that could lead her to reach an informed decision.

12. Another point raised by the appellants is that there was perhaps too much reliance placed by her Honour on Inspector May v HG Nielsen & Co Pty Ltd & Anor [2006] NSWIRComm 403. There are some similarities in that case and some differences. As Mr Williamson pointed out in his written submissions, there are matters that would suggest that the facts in the Nielsen case are, in some ways, perhaps less serious than in the present case (paragraph 23 of his written submissions).

13. Taking all of these factors into account it seems to me that where it is sought to show a fine is manifestly excessive there must be clear evidence of an excess over an appropriate range such that the court will almost automatically say that fine is simply too much. In my view that cannot be said in this case, especially in the absence of an any suggested range and in the absence of detailed material that would have allowed the financial circumstances of the appellant to be taken into account.

14. One point that I did raise with Mr Pappas, and which he adopted, was whether the company, being effectively a two person company run by a husband and wife team, should not be treated as a corporate entity. It is clear from s 32 of the Work Health and Safety Act 2011 (ACT) that the fines applicable to a corporate entity are very much higher than those that would otherwise apply. I do think that is a relevant point but it must be balanced against the fact that Mr and Mrs Finnigan chose to incorporate with all the benefits that action no doubt has for them in the operation of their business. Accordingly, I do not think it is a factor that is enough to affect my regard for the size of the fine.

15. The result is that the appeal must be dismissed.

17. The fine imposed by Chief Magistrate Walker is to be paid within 18 months of today.

18. Pursuant to s 236 of the Work Health and Safety Act 2011 (ACT) the appellant is to advise the Canberra Times and Australian Broadcasting Corporation of its conviction and the penalty imposed within seven days.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim