9 His Worship then considered the question of costs. He was advised by the prosecutor that the usual agreed costs in such matters were in the vicinity of $1400. Following further brief submissions on behalf of the defendant, his Worship declined to make an order for costs apart from the usual Court costs of $59. In making that decision his Worship said:
"In the matter, Mr Eldridge, who appears on behalf of WorkCover, asks the Court to consider awarding costs, looking to professional costs and the usual disbursements.
He refers me to a letter dated 28 June to Mr Gain in relation to his inquiries. It is a response to his inquiries. At paragraph 3, it states:
'We note your comments concerning the prosecutor's scale of costs and disbursements. It is the practice of the Chief Industrial Magistrate, and other Magistrates hearing prosecutions under the Occupational Health and Safety Act 1983 to award costs and disbursements in accordance with the scale. However, we acknowledge that there is no legislative or regulatory power behind the document.'
Mr Gain puts to the Court the costs that the local ratepayers have already faced. It is a small group - or relatively small group of people of some two thousand only. Mr Gain notes this, the public obligation is opposed of course to user pays, and we're all aware that both commonwealth, state and local governments are taking the user pays approach (sic). Certainly that has become very apparent over the last 12 or so years.
Having considered the material, I don't propose to award costs. I consider that a state body such as the Occupational Health and Safety body, should be in a financial position where it can meet its costs. Council has made very considerable efforts in this matter and I consider that to be sufficient. The ratepayers obviously have enough to pay and to worry about without worrying in addition about costs and disbursements.
I decline to award costs."
10 The issue of costs is one of the matters raised in the application for leave to appeal and appeal, particularly having regard to the construction and application of s 81 of the Justices Act 1902.
11 The appellant, the prosecutor in the proceedings before his Worship, now seeks leave to appeal and appeal pursuant to s 47 of the Occupational Health and Safety Act and s 197 of the Industrial Relations Act 1996 on the following grounds:
1. His Worship erred in exercising his discretion under section 10(1) of the Crimes (Sentencing Procedure) Act 1999 to dismiss the information.
2. His Worship erred in exercising his discretion to dismiss the information pursuant to section 10(1) of the Crimes (Sentencing Procedure) Act 1999 without raising this issue with the parties.
3. His Worship erred in acting upon wrong principles when exercising his discretion to dismiss the information pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.
4. His Worship erred in that the penalty was manifestly inadequate having regard to the objective circumstances of the offence.
5. His Worship erred in exercising his discretion to decline to award costs to the Appellant.
6. His Worship erred in the exercise of his discretion in sentencing, in that he:
· gave undue weight to matters subjective to the Respondent;
· gave insufficient weight to factors objective to the Respondent;
7. His Worship erred in allowing extraneous or irrelevant matters to guide or affect the exercise of his discretion in declining to award costs to the appellant.
8. On any other ground that the Commission considers appropriate.
12 In support of his application for leave to appeal, the appellant, in the notice of appeal, submitted that the appeal raised important questions as to the construction and application of s 10 of the Crimes (Sentencing Procedure) Act, the principles to be adopted and the weight to be given to subjective features relevant to the defendant in sentencing and considerations to be taken into account on the discretion to award costs.
13 Additional reasons for the granting of leave to appeal identified as matters of public importance were whether the penalty was manifestly inadequate when considering the objective circumstances of the offences and the exercise by the Court of its discretion under s 10 of the Crimes (Sentencing Procedure) Act without prior notice to the parties.
14 At the directions hearing in this appeal, the solicitor for the appellant was joined by the respondent's solicitor indicating that the parties had reached agreement on the proposed further conduct of the matter. A request was made of the Court that, subject to the approval of the Full Bench, leave to appeal be granted and that consent orders be made in terms of the Short Minutes of Orders filed with the Court at the directions hearing. On that occasion, a number of directions were made by consent including that the parties were to file the requisite appeal books and provide to the Court a short outline of submissions, which may be joint submissions. Those directions were complied with and the appeal books and joint submissions are now before the Court.
15 The submissions and related documents have now been considered by the Full Bench as have the decision made by his Worship both as to penalty and costs, and the evidence before his Worship on those issues.
16 The requirement for leave to appeal to be granted in accordance with s 197 of the Industrial Relations Act for matters such as the one before us is well established: see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446. In addition s 188(2) of the Industrial Relations Act requires the public interest test to be assessed in granting such leave.
17 In considering all of those matters averted to, we are of the view that leave to appeal should be granted. The nature of the crush injury suffered by Mr Jones when his right forearm became trapped in the identified nip point between the metal lip of the bin lifter on the metal cradle and the rear of the hopper of the compaction unit are objectively serious on any view. We accept without issue the force of the joint submissions on the requirement for guarding such dangerous machinery expressed in paragraph 8 in the following terms:
"The requirement for employers and other persons to identify and safely guard all dangerous parts of machinery used at work has been recognised for decades in decisions of the Commission and its predecessors, and well as in the Chief Industrial Magistrate's Court and Local Court."
18 Given that view, with which we concur, the requirement of public interest is manifestly evident in the matter before us. As has been expressed by this Court repeatedly in like and similar terms, the Occupational Health and Safety Act and the obligations arising there from requires an employer to look ahead and to seek out and foresee dangers even when those dangers have not crystallised to an incident or accident. On that point, it is pertinent to note that the agreed facts placed before his Worship contained the following observations made by the informant following the accident that only serve to highlight that issue:
" 7.1 The nip point formed between the lip of the bin lifter and the cradle bracket on the rear of the hopper of the compaction unit was inherently dangerous in that it was unguarded and readily accessible by an operator;
7.2 …
7.3 Two green waste bins of the premises were emptied into the compaction unit. Jones noticed that there was excess rubbish in the hopper of the compaction unit after emptying the bin. Jones reached across with his right arm to level out the rubbish in the hopper and while doing so his right arm was trapped in the nip point;
7.4 Jones is unsure how the bin lifter was activated at that point and believes he may have activated the control lever with his knee or another body part;
7.5 It was relatively common for employees of the defendant, including Jones, to reach into the hopper area of the compaction unit with their hands to level out rubbish." [our emphasis]
19 The limited circumstances in which the application of the discretion conferred by s 10 of the Crimes (Sentencing Procedure) Act 1999 has been applied to occupational health and safety offences before this court are well known: see Schultz v Tamworth City Council (1995) 58 IR 221 and more recently WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 particularly at 72 where the Commission in Court Session expressed the view:
" … in occupational health and safety offences before this Court the exercise of the discretion under s. 556A (cf. s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant and also by the judge acceding to that submission. The obligation is increased rather than diminished in the situation, such as the present, when the exercise of the discretion is not sought by the defendant but raised by the Court."