Comcare v John Holland Pty Ltd

PART 1: INTRODUCTION; ASPECTS OF THE FAIR WORK DECISION OF THE HIGH COURT (AS LATER DEFINED); AND PRINCIPLES GOVERNING THE EXERCISE OF THE DISCRETION IN DETERMINING AN APPROPRIATE PECUNIARY PENALTY 1 These proceedings are concerned with the question of determining an appropriate penalty to be imposed upon the respondent, John Holland Pty Ltd ("JHPL"), in relation to an admitted contravention of s 16(1) of the now repealed Occupational Health and Safety Act 1991 (Cth) (the "OHS Act"). The OHS Act was repealed in its entirety by operation of the Work Health and Safety (Transitional and Consequential Provisions) Act 2001 (Cth) (called the "Transitional Act" and also described by that term in the Statement of Agreed Facts ("SOAF") entered into between the applicant, Comcare and JHPL): see Schedule 1 to the Transitional Act. However, the OHS Act by operation of subclause 1(1) of Schedule 2, Part 1 of the Transitional Act continues to apply, in relation to contended breaches of the OHS Act which occurred prior to the "commencing day" of the Transitional Act on 1 January 2012, as if the OHS Act had not been repealed. The tragic events in question here concerning Mr Beveridge, as later described in these reasons, occurred on 29 September 2011. 2 Aspects of the SOAF are set out later in these reasons. 3 The application came before the Court on 20 July 2015 for hearing and was then reserved for further consideration of the issues by the Court. 4 In the early part of 2015, it became apparent that the Full Court of the Federal Court was to consider the question (which, as a general matter, had been the subject of debate in a number of first instance decisions of this Court and other Courts) of the extent to which the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58 ("Barbaro") (and the expressions of principle discussed in that decision) might properly inform a principled approach to the determination of a pecuniary penalty under a "civil pecuniary penalty provision" (although the particular statutory regime in the proceedings before the Full Court was to engage the provisions of the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act")). The relevant provisions of that Act were thought to be a relevant analogue of civil penalty regimes more generally although, of course, the particular statutory framework would be of critical importance in any given case. The Full Court delivered judgment in that matter (Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331; 320 ALR 631; 105 ACSR 403; [2015] FCAFC 59) and in mid-June 2015, the Commonwealth obtained special leave to appeal from the orders of the Full Court. On 9 December 2015, the High Court delivered judgment in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 ("Fair Work"). 5 As a consequence of the High Court's Fair Work decision, Comcare put on further submissions on 24 December 2015 and JHPL put on further submissions on 1 February 2016. 6 It is necessary to consider aspects of the observations of their Honours in the Fair Work decision so as to identify whether matters of principle emerge from that decision relevant to the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act in determining a pecuniary penalty concerning a contravention of s 16(1) of that Act, having regard to the relevant statutory framework and authorities which expressly address the relevant considerations to be taken into account in the exercise of the discretion. 7 In Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2016] FCA 453 ("Cement Australia") published on 29 April 2016, I expressed observations on those aspects of the Fair Work decision addressing the character of civil penalty proceedings. The Cement Australia decision will not be published to the website for approximately two weeks to enable the parties to isolate confidential market data to be excised from the published edition of the reasons. In Cement Australia, the question before the Court was the determination of a pecuniary penalty having regard to the civil penalty regime contained in the Trade Practices Act 1974 (Cth) and, in particular, s 76(1)(a) of that Act in respect of contraventions of s 45 of that Act (which falls within Part IV of that Act). In terms of a principled approach to identifying the essential features of a civil penalty regime (in the context of the BCII Act there under consideration) and the distinction between a civil penalty regime and principles governing sentencing in criminal proceedings, I expressed the following observations at [26] to [51] (which do not contain any aspects of the confidential market data) concerning the observations of the High Court in the Fair Work decision: part 2: the fair work decision; the relevant principles to be applied in exercising the discretion under section 76 of the [TRADE PRACTICES act 1974 (CTH)] The Fair Work decision 26 In Barbaro, French CJ, Hayne, Kiefel and Bell JJ held that where a Court is called upon to pass sentence on an offender in criminal proceedings, the "prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion" which a sentencing judge may not "take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed": Barbaro at 66, [7]. That follows because, apart from the "conceptually indeterminate boundaries" of the available range of sentences (and "systemic problems" which would likely result from a criminal sentencing judge being seen to be influenced by the Crown's opinion as to the available range of sentences), the Crown's opinion would, in all probability, be informed by an assessment of the facts and relative weighting of the relevant sentencing considerations "different from the judge's assessment": Fair Work, the plurality at 491 [56]. Having regard to that consideration, the plurality at [56] also said this: "That is why it was held in Barbaro that it is inconsistent with the nature of criminal sentencing proceedings for a sentencing judge to receive a submission from the Crown as to the appropriate sentence or even as to the available range of sentences". 27 However, what was said in Barbaro "applies only to criminal proceedings": Fair Work, the plurality at [50]. 28 That follows because there are "basic differences" between a criminal prosecution and civil penalty proceedings and it is those basic differences that provide the "principled basis" for excluding the application of Barbaro from civil penalty proceedings. Those basic differences between a criminal prosecution and a civil penalty proceeding include these considerations: a criminal prosecution is an accusatorial proceeding governed by the fundamental principle that the burden lies in all things upon the Crown to establish guilt beyond reasonable doubt; civil penalty proceedings are "civil" and therefore adversarial with issues and the scope of relief framed by the parties as they choose; and, a criminal prosecution is aimed at securing a criminal conviction whereas a civil penalty proceeding is "precisely calculated" to "avoid the notion of criminality as such": see Fair Work, the plurality at [53]-[54]. 29 No less important, however, is the consideration that the imposition of criminal penalties is conditioned by notions of "retribution" and "rehabilitation" as well as general and specific deterrence, whereas the "purpose" of a civil penalty is primarily, if not wholly, "protective" in promoting the public interest in compliance with the law: Fair Work, the plurality at [55]. Civil penalties, like most other civil remedies, are "essentially deterrent or compensatory" and therefore "protective": Fair Work, the plurality at [59]. Moreover, neither retribution nor rehabilitation "have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]", and the principal, and probably the only, "object" of the penalties imposed by s 76, is to attempt to "put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act": Fair Work, the plurality at [55] adopting the observations of French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 ("TPC v CSR"). 30 Because a civil penalty and a civil penalty proceeding bear these characteristics, there is nothing exceptional about a Court approving an agreed settlement provided the Court is persuaded that the settlement is, in the statutory language, "appropriate". That additional matter is not relevant for these proceedings. However, it also follows from these propositions that the Court can quite properly receive either joint or separate submissions from the parties, and particularly a regulator, as to the facts and penalty. 31 As to the position of a regulator, the plurality said this at [60]: As was emphasised in [NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ("NW Frozen Foods")], it is the function of the relevant regulator to regulate the industry in order to achieve compliance and, accordingly, it is to be expected that the regulator will be in a position to offer informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance. 32 At [61], the plurality note the logical qualification upon that proposition that the submissions of a regulator on those questions are to be considered on their merits (in the same way as the submissions of a respondent are to be considered), supported as they must be, by findings of fact referable to properly adduced evidence, the agreement of the parties or concessions made by the relevant respondents. The relevant facts must be exposed and the Court bears the responsibility of ensuring that those matters are properly exposed. At [61], the plurality also said this: But, subject to that imperative, there is no indication in the purpose or text of the BCII Act that the court should be less willing to receive a submission as to the terms and quantum of penalty in a civil penalty proceeding than to receive a submission as to the terms and quantum of relief put up for approval by the court in any other kind of civil proceeding. [emphasis added] 33 Equally, there is no indication in the purpose or text of the Trade Practices Act that suggests that the Court ought to be unwilling to receive submissions as to the quantum of the penalty in the exercise of the Court's discretion under s 76(1) of the Act. 34 At [56], the plurality in Fair Work also observe that in "criminal proceedings" the imposition of "punishment" is a "uniquely" judicial exercise of "intuitive" or "instinctive synthesis" (as that term is understood having regard to the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611-612, [74]-[76] and the later observations of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen (2005) 228 CLR 357 at 373-375, [37]-[39]) of the sentencing facts, as found by the sentencing judge, and the judge's "relative weighting" and application of relevant sentencing considerations, in accordance with established sentencing principles. The plurality in Fair Work also observe at [56] that there is "no room" in an exercise of "that nature" for the sentencing judge to take account of the Crown's opinion as to the appropriate length of sentence. 35 In contrast, however, that is not the position in relation to civil penalty proceedings: Fair Work, the plurality at [56]. 36 At [62], the plurality also observes in relation to the BCII Act, that the legislation expressly provided that the Director's functions included intervening in proceedings and making submissions in accordance with the Act. The legislation did not impose any "express limitation" or "restriction" on the evidence, materials or submissions which could be received from the Director. 37 Moreover, as a matter of construction of the BCII Act in this regard, by providing for "civil penalty proceedings", the BCII Act "implicitly assumes the application of the general practice and procedure regarding civil proceedings and eschews the application of criminal practice and procedure": Fair Work, the plurality at [62]. There is no relevant point of differentiation between the BCII Act provisions in this regard and the provisions of the Trade Practices Act. It therefore follows, as a matter of construction of the Trade Practices Act, that by providing for civil penalty proceedings the Act implicitly assumes the application of the general practice and procedure relating to "civil proceedings" and eschews the application of criminal practice and procedure (in relation to the provisions of the Act relevant to these proceedings). 38 Apart from these observations about the fundamental differences between a criminal prosecution and a civil penalty proceeding and the conclusion, as a matter of construction of the legislation, that the BCII Act eschews the application of criminal practice and procedure, the plurality made this further observation at [64] about the role of a regulator in what might be regarded as "typical" civil penalty regimes: In contradistinction to the role of the Crown in criminal proceedings, it is consistent with the purposes of civil penalty regimes of which Pt 1 of Ch 7 of the BCII Act is typical, and therefore with the public interest, that the regulator take an active role in attempting to achieve the penalty which the regulator considers to be appropriate and thus the regulator's submissions as to the terms and quantum of a civil penalty be treated as a relevant consideration. 39 There is no point of distinction, so far as the Trade Practices Act is concerned, with the BCII Act, which would render those observations of the plurality inapplicable to the exercise of the discretion under s 76(1) of the Act. 40 Although I have largely confined, in these reasons, my attention to the observations of the plurality in Fair Work, the observations of Gageler J and Keane J are consistent with the statements of principle identified by the plurality. 41 Two things follow from these considerations. 42 First, plainly enough, submissions can properly be made as to the quantum of the penalty and any terms which might attach to the imposition of a pecuniary penalty, by either side, including the regulator. 43 Second, the following question arises. If the purpose of a civil penalty is (at least primarily) protective, that is to say, essentially to deter and thus protective, and the Trade Practices Act (at least in relation to the provisions of the Act relevant to these proceedings) assumes, as a matter of construction, the application of the general practice and procedure relating to civil proceedings (thus eschewing the application of criminal practice and procedure), to what extent do the principles identified in the authorities which govern the exercise of the discretion under s 76(1) (and, for that matter, typical analogous civil penalty regimes), deriving from sentencing principles identified in a number of authorities in the context of criminal sentencing practice and procedure, continue to have any application to the exercise of the discretion under s 76(1)? 44 Further, since in criminal proceedings punishment of the offender is a uniquely judicial exercise of "instinctive synthesis" or "intuitive synthesis" (and a long line of authority holds that the purpose of a civil penalty provision is not punishment; NW Frozen Foods, 297, Burchett and Kiefel JJ); and the Trade Practices Act, so far as relevant to these proceedings, eschews the application of criminal practice and procedure, to what extent does the notion of instinctive synthesis have any application to the exercise of the discretionary judgment to be made when determining an "appropriate" pecuniary penalty under s 76(1)? 45 In exercising the discretion under s 76(1) (and analogous civil penalty regimes) the orthodox position has been to apply, as relevant to the exercise of the discretion, principles derived from a range of authorities identifying appropriate practices applied by judges in the exercise of discretionary sentencing of criminal offenders. As to relatively recent examples, Jacobson J observed in 2014 in Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412 at [124] ("Registrar v Matcham (No 2)") that it is "well-established that the principles of sentencing which have been developed in the criminal law apply to the exercise of the discretion to impose civil penalties in those areas of the law which are regulated by civil penalty regimes". See also the approach adopted by Foster J in Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205 applying the same principle at [68] and citing at [76] Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at [42]-[46] (Stone and Buchanan JJ) ("Mornington") and Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [39] ("CFMEU v Cahill"), Middleton and Gordon JJ. 46 I propose to proceed on the following basis in the exercise of the discretion under s 76(1). 47 First, the principled distinctions identified in Fair Work between a criminal prosecution and a civil penalty proceeding provide the basis for the answer to the specific question addressed by their Honours in Fair Work of whether the proposition identified at [7] by the plurality in Barbaro (see [26] of these reasons) applies only to criminal proceedings. 48 Second, as to other matters, although the principled distinctions between a criminal prosecution and a civil penalty proceeding identified by their Honours in Fair Work, and the matters of statutory construction identified by their Honours (as applied to the relevant provisions of the Trade Practices Act, see particularly [37] of these reasons) hold good for all purposes, the exercise of the discretionary judgment to be made under s 76 of the Act continues to engage the notion of instinctive synthesis as a substantive matter of methodological approach to the exercise of the discretion rather than a matter of criminal practice and procedure. 49 Third, the matters of statutory construction identified by the plurality in Fair Work and discussed at [30]-[33] and [38]-[39] of these reasons informs the exercise of the discretion under s 76 even though there is no question here of agreement or joint submissions. 50 Fourth, the statements of principle concerning the purpose of a civil penalty proceeding identified by the plurality in Fair Work and discussed at [29] of these reasons informs the exercise of the discretion under s 76 of the Act. 51 Fifth, substantive matters of methodological approach to the exercise of the sentencing discretion (rather than matters of criminal practice and procedure as such) discussed in the authorities continue to be matters relevant to the exercise of the discretion under s 76 of the Act. 8 Later in these reasons, I set out provisions of the OHS Act which provide the statutory context for the exercise of the discretion under cl 4 of Schedule 2 to the OHS Act when exercising the discretion to order a person to pay a pecuniary penalty to the Commonwealth in respect of a breach of s 16(1) of the OHS Act. Clause 4 of Schedule 2 uses the phrase "the court may order the person to pay … a pecuniary penalty". That clause does not prescribe particular considerations that are to be taken into account either expressly or inclusively. 9 However, the Court must have regard to all relevant considerations. 10 In Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200; [2008] FCA 1987, Flick J regarded the considerations identified by French J in Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 to be relevant considerations when assessing a pecuniary penalty under cl 4 of Schedule 2 of the OHS Act, as factors serving deterrence. Those considerations identified by French J concern factors to be taken into account when determining an appropriate penalty under s 76(1)(a) of the Trade Practices Act 1974 (Cth) (as the Act was then called). The first four of those factors are considerations identified by s 76(1)(a) of that Act expressly. Other factors are considerations French J regarded as relevant matters in determining a pecuniary penalty under that Act. At [52] to [55], [57] to [59], [77] to [94] and [121] of the Cement Australia decision, I consider those matters and a range of factors relevant to the exercise of the discretion in determining an appropriate penalty under s 76(1)(a) of the Trade Practices Act 1974 (Cth). I regard those considerations as also having relevance to the exercise of the discretion under cl 4 of Schedule 2 to the OHS Act. 11 The paragraphs just mentioned are set out below. The relevant principles 52 Section 76(1) of the Act provides that where a person has contravened a provision of Pt IV of the Act, the Court may order the person to pay, "in respect of each act or omission by the person to which this section applies", such pecuniary penalty as the Court determines appropriate "having regard to all relevant matters". The section then inclusively identifies some of those matters as follows:  the nature and extent of the act or omission;  the nature and extent of any loss or damage suffered as a result of the act or omission;  the circumstances in which the act or omission took place; and  whether the person has previously been found by the Court in proceedings under, relevantly here, Pt VI of the Act, to have engaged in any similar conduct. 53 These expressly identified factors do not exhaust "all relevant matters" but they do reflect the considerations to which the Parliament expressly turned its attention. 54 Because pecuniary penalty proceedings are not "classed as criminal proceedings", it is not necessary to measure the contravening conduct against "some general community morality in which the law is embedded". Aspects of some commercial behaviour such as "ruthlessness" and "expansionary ambition" are not elements of the "classes of conduct prohibited by Pt IV" of the Act, nor even "aggravating factors": TPC v CSR at 52,151, French J. Seeking to characterise contravening conduct in terms of "a morality larger than that which is defined by the legislative purpose is misplaced" [emphasis added]: TPC v CSR at 52,151. 55 In J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ("J McPhee v ACCC") at 579 [166], Black CJ, Lee and Goldberg JJ accepted that the provisions of the Act (contraventions of s 45 of the Act were there under consideration) are not designed to regulate or proscribe moral conduct, "but they are calculated and intended to proscribe particular aspects of commercial conduct" and in examining those "particular aspects" of commercial conduct, reflected in the relevant provisions of Pt IV, it is relevant, in determining the pecuniary penalty under s 76 to consider whether there has been a deliberate contravention or a deliberate attempt to contravene the Act. Such a consideration of deliberateness does not involve a moral issue but "takes into account the deliberateness or the calculated manner in which a course of conduct has been undertaken". Thus, in fixing penalties under s 76, it is appropriate and relevant to take into account whether the contravening conduct was "systemic, deliberate or covert": J McPhee v ACCC at 577 [158] and [163], Black CJ, Lee and Goldberg JJ. There needs to be "commercial realism" in fixing a penalty and the penalty should be proportionate to the deliberation with which the defendant contravened the Act: TPC v CSR at 52,153; Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 ("Stihl Chain Saws"), Smithers J at 17,896. 56 … 57 In TPC v CSR, French J notes at 52,152 the "primacy" of the deterrent purpose in the imposition of a penalty under s 76 of the Act having observed (see [29] of these reasons) that the principal and probably the only object of penalties imposed by s 76 is to attempt to "put a price on contravention" sufficiently high to deter repetition by the contravener and others tempted to contravene the Act - that is, general and specific deterrence. His Honour then formulates these factors as ones which properly serve the assessment of a penalty of "appropriate deterrent value": 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused [by the contravening conduct]. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. 58 In Australian Competition and Consumer Commission v Kokos International Pty Ltd (No 2) (2008) ATPR 42-212 at 48,813, French J at [51] accepted that the following three matters are also relevant to the exercise of the discretion (continuing my numbering): 10. Whether the respondents have engaged in similar conduct in the past. 11. The financial position of the respondents. 12. The deterrent effect of the proposed penalty. 59 At [51], his Honour observed that he was "satisfied that the above list [1 to 12] is sufficiently comprehensive". In Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ("TPC v TNT") at 40,169, Burchett J identified two other considerations relevant to the exercise of the discretion: first, whether the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct and second, the extent to which, by admitting the allegations, the respondents saved the community the burden of litigating a lengthy and expensive case. The inverse position might be the extent to which the respondents caused the community to incur the cost and burden of litigating a lengthy and expensive case resulting in proven contraventions. The first consideration may simply be a reference to the "totality principle", a matter discussed later in these reasons together with an anterior consideration relevant to multiple contraventions, the "one transaction" or "course of conduct" principle. The second consideration is really part of factor 9. … 77 In Markarian v The Queen (2005) 228 CLR 357, an accused person pleaded guilty to a charge under the Drug Misuse and Trafficking Act 1985 (NSW) of knowingly taking part in the supply of a commercial quantity of heroin. The accused was sentenced to imprisonment for two years and six months with a non-parole period of 15 months. The sentence took into account the commission of four other drug offences admitted by the accused. The contextual facts were that the accused, a heroin addict at the time of the conduct, had acted as a driver for a heroin dealer and had been paid for his services in heroin. The maximum period of imprisonment for the offence was 20 years. A Crown appeal to the Court of Criminal Appeal was allowed and a term of imprisonment of eight years with a non-parole period of four years and six months imposed. In imposing that sentence, the Court had adopted as a "starting point" the maximum period of imprisonment applicable to a less serious drug offence and then made "proportional deductions" and "increases" from that starting point so as to reflect matters specifically relevant to the circumstances of the accused. 78 The determination of a sentence is, like the exercise of the discretion under s 76, a discretionary judgment: Markarian v The Queen at [25], Gleeson CJ, Gummow, Hayne and Callinan JJ. At [27], the plurality observe that apart from express legislative provisions, principle does not dictate the particular path that a sentencer must follow in reasoning to the conclusion reached that the sentence to be imposed should be fixed as it is when passing sentence (in cases where the penalty is not fixed by statute). 79 At [27], the true principle is put this way: The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. [emphasis added] [citations removed] 80 At [30], the plurality observe that legislatures do not enact maximum available sentences as "mere formalities" particularly as judges "need sentencing yardsticks". The plurality observe that it is "well accepted that the maximum sentence available may in some cases be a matter of great relevance". 81 At [31], the plurality observe: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. [emphasis added] [citations removed] 82 At [32], the plurality observe that the primary judge having started where he did, at a maximum, and then making deductions from it, failed to make an assessment of the sentence called for by the "objective facts". 83 In Markarian v The Queen, the High Court was invited to reject sequential or two-tiered approaches to sentencing taking as a starting point the maximum penalty available, in favour of a process of "instinctive synthesis". However, the plurality observe that no universal rules can be stated in those terms as much turns upon what exactly is meant by a sequential or two-tiered approach to determining penalty. Similarly, the process of instinctive synthesis might be wrongly understood as enabling a sentencer to pass sentence without giving exposed reasons for the sentence. 84 At [37], the plurality observe that a sentencing Court will, after weighing all the relevant factors, reach a conclusion that a particular penalty is one that should be imposed. In doing so, adopting, as a method, a mathematical approach to sentencing in which there are to be "increments to" or "decrements from" a predetermined range of sentences (that is to say, a "two-stage approach" to sentencing), is both wrong in principle and apt to give rise to error and should not be adopted. 85 In this respect, the plurality adopted the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 611-612, [74]-[76]. As to the notion of "instinctive synthesis", the plurality, again adopting the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen at [75], observe that the task of the sentencing judge is to "take account of all of the relevant factors and to arrive at a single result which takes due account of them all" [emphasis added] and that this is "what is meant by saying that the task is to arrive at an 'instinctive synthesis'". The expression is not used to "cloak the task of the sentencer in some mystery" but is intended to reflect an obligation to balance "many different and conflicting features". 86 Thus, the process of "instinctive synthesis" requires all of the factors to be balanced in a way which reflects an application of the "rules of reason" (rationality) taking into account all relevant matters, excluding extraneous or irrelevant matters and accurately having regard to the objective facts, all brought together in exposed reasons for the exercise of the discretion in the particular way, serving the public interest in transparency. 87 "Instinctive synthesis" certainly does not mean "informed gut reaction". Nor, in truth, is it a result based on "instinct" but rather, it is a synthesis of all of the factors mentioned at [85] of these reasons. The term is probably better understood by reference to the substitutable taxonomy of "intuitive synthesis": Fair Work, the plurality at [56]. 88 In determining the amount of a pecuniary penalty, having regard to all of these considerations, it nevertheless remains important to recognise that "insistence upon the deterrent quality of a penalty should be balanced by insistence that it 'not be so high as to be oppressive'": NW Frozen Foods, Burchett and Kiefel JJ at 293 F-G, adopting the observations of Smithers J at 17,896 in Stihl Chain Saws. 89 It should also be recognised that a penalty that "would deter a small company might have little effect on a very large one", for the obvious reason: TPC v TNT at 40,168, Burchett J; see also TPC v CSR at 52,154, French J; ACCC v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 30 at [39], Goldberg J; Luke, Ch 21, Verses 1-4, Authorised King James Version. 90 A further important consideration is the following matter. 91 In the exercise of the s 76 discretion "all relevant matters" must be considered and although the circumstances of every case will inevitably vary and the facts relevant to the contravening conduct will be different in each case and so too will the facts relevant to the 12 factors informing the exercise of the discretion, it nevertheless follows that to the extent that conduct in one case exhibits, in a broad sense, essential similarities with conduct in other cases which have attracted a particular pecuniary penalty, "similar penalties should be incurred". That follows because "a hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties": NW Frozen Foods at 295A-B, Burchett and Kiefel JJ adopting the observations in Trade Practices Commission v Axive Pty Ltd [1994] ATPR 41-368 at 42,795. 92 However, the fact-intensive inquiry inherent in the determination of whether conduct contravenes the Act and the fact-intensive inquiry going to each element of the factors informing the exercise of the discretion means that "other things" are "rarely equal" (Burchett and Kiefel JJ in NW Frozen Foods at 295B-C) where contraventions of the Trade Practices Act are concerned. 93 In NW Frozen Foods, Burchett and Kiefel JJ observe at 295B-C: In the present case, differing circumstances, size, market power and responsibility for the contraventions as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations. 94 Other considerations concern the application of the "totality principle" and the anterior question of the "one transaction" or "single course of conduct" principle, discussed as follows. … 121 Although it will be necessary to mention later in these reasons some aspects of the application of the totality principle, Wilson, Deane, Dawson, Toohey and Gaudron JJ described the principle in these terms in Mill v The Queen (1988) 166 CLR 59 at 62-63: The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd Ed. (1979), pp. 56-57, as follows (omitting references): "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being tottered up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'" See also Ruby, Sentencing, 3rd Ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. [emphasis added] 12 However, the exercise of the discretion is ultimately governed by the statutory instrument itself and proper regard must be had to the relevant provisions. 13 As to the OHS Act, s 3 of the Act is in these terms: 3 Objects The objects of this Act are: (a) to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non-Commonwealth licensees; and (b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and (c) to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and (d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and (e) to foster a co-operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and (f) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and (g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions. 14 Section 16 of the OHS Act provides that an employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees: s 16(1). 15 Section 16(2) of the OHS Act provides, without limiting the generality of s 16(1), that an employer "breaches" s 16(1) if the employer, relevantly, fails to take all reasonably practicable steps as contemplated by s 16(2)(a), (b), (c) and (e), set out below: 16 Duties of employers in relation to their employees etc (1) An employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees. Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2). (2) Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps: (a) to provide and maintain a working environment (including plant and systems of work): (i) that is safe for the employer's employees and without risk to their health; and (ii) that provides adequate facilities for their welfare at work; and (b) in relation to any workplace under the employer's control, to: (i) ensure the workplace is safe for the employees and without risk to their health; and (ii) … (c) to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or of substances; and … (e) to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health. 16 Schedule 2 addresses the topic of "Civil and criminal proceedings". Part 1 of Schedule 2 addresses the topic of "Civil proceedings" and Part 2 of Schedule 2 addresses the topic of "Criminal prosecutions". The OHS Act therefore makes a clear distinction between a civil penalty proceeding and offences which attract criminal prosecution. 17 Clause 2(1)(a) of Schedule 2 provides, relevantly, that if the Court considers that a person has "breached" s 16(1) of the OHS Act, or was involved in such a breach, the Court "must make a declaration that the person has contravened this subclause". Clause 2(1) is a little oddly expressed because, properly understood, it contemplates that a person has breached an operative provision of the OHS Act (relevantly here, s 16(1)) rather than subclause (1) of cl 2 itself. Clause 2(3) of Schedule 2 sets out the elements of the declaration to be made, for the purposes of cl 2(1). Clause 3 of Schedule 2 provides that "a declaration of contravention" made under cl 2(1) is "conclusive evidence of the matters referred to in subclause 2(3)". 18 Clause 4 of Schedule 2 is in these terms: 4 Pecuniary penalty orders (1) If a Court has declared, under subclause 2(1), a contravention of that subclause by a person because the person breached, or was involved in the breach of, a provision listed in that subclause, the court may order the person to pay the Commonwealth a pecuniary penalty. (2) The pecuniary penalty must not exceed the amount stated in the table to be the maximum penalty in relation to the provision concerned. [emphasis added] 19 The maximum penalty for a breach of s 16(1) at the material time was 2,200 penalty units which represent a maximum penalty of $242,000. 20 Having regard to the objects of the OHS Act, the relevant provisions, the distinction the OHS Act draws between a civil penalty proceeding and conduct giving rise to offences, the considerations mentioned earlier derived from the High Court's Fair Work decision and the jurisprudence in connection with the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act, these additional considerations are relevant: (1) In Comcare v Commonwealth of Australia (2007) 163 FCR 207; [2007] FCA 662, Madgwick J observed at [116] that the "overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances" [emphasis added]. The "seriousness" of the contravening conduct, in all the relevant circumstances, is an important matter because it must be weighed in the balance in determining the amount of a penalty as an element of serving the public interest in general and specific deterrence: the Fair Work decision. (2) In Comcare v Commonwealth (supra), Madgwick J at [120] sets out 10 considerations derived from decisions, in the main, of the New South Wales Industrial Commission applying cognate provisions of New South Wales State Occupational Health and Safety laws which were said by his Honour at [123] to provide "useful, analogical, general guidance" to the approach to be taken under the OHS Act in the exercise of the discretion to impose a pecuniary penalty in respect of contravening conduct. The 10 well-known factors are described in later authorities as the "Madgwick factors". (3) It has become something of a common practice in decisions of this Court in determining a penalty to be imposed under cl 4, Schedule 2 of the OHS Act to recite jurisprudential adherence to these well-known 10 Madgwick factors (among other considerations): Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 [2008]; FCA 1987, Flick J at [32]; Comcare v Commonwealth of Australia (2009) 184 IR 441; [2009] FCA 700 at [69], North J; Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009) 188 IR 415 at [137] to [143], Barker J; Comcare v Subsee Explorer Pty Ltd (2011) 210 IR 322; [2011] FCA 837 at [41], Collier J; Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223 at [36], Collier J; Comcare v Linfox Australia Pty Ltd (2010) 198 IR 160; [2010] FCA 793 at [40] (and also quoting at [42] and [43] the observations of Barker J at [135] and [136] in Comcare v John Holland Rail Pty Ltd (supra)), McKerracher J; Comcare v Australian Postal Corporation [2011] FCA 530 at [12] (also quoting [32] to [39] of the decision of Flick J in Comcare v Post Logistics Australasia Pty Ltd (supra)), Kenny J; Comcare v Transpacific Industries Pty Ltd [2012] FCA 90 at [34] to [37], Barker J; Comcare v John Holland Pty Ltd (2012) 129 ALD 486; [2012] FCA 449 at [43], McKerracher J (re-affirming the factors identified by Madgwick J in Comcare v Commonwealth of Australia (supra) as set out earlier by McKerracher J at [40] to [44] of his Honour's decision in Comcare v Linfox Australia Pty Ltd (supra)); Comcare v Commonwealth of Australia (2012) 132 ALD 480; [2012] FCA 1419 at [96] to [99], Griffiths J; Comcare v John Holland Pty Ltd (2014) 245 IR 464; [2014] FCA 1191 at [78] and [79], Siopis J; Comcare v Linfox Australia Pty Ltd (2015) 144 ALD 513; [2015] FCA 61 at [18] to [23], Flick J; Comcare v Transpacific Industries Pty Ltd (2015) 146 ALD 637; [2015] FCA 500 at [107] to [123], Barker J. (4) Apart from these first instance decisions, there is an important intermediate Court of Appeal decision of this Court from 2012: Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178; [2012] FCAFC 168. (5) The considerations (and statutory background) to be taken into account in the exercise of the discretion under cl 4 of Schedule 2 of the OHS Act in respect of a breach of s 16(1) are these (the matters at (n) to (v) reflect in substance the "Madgwick factors"): (a) the OHS Act has been repealed by the Transitional Act. Simply, for present purposes, as a matter of context, the Transitional Act is described as an Act to deal with transitional and consequential matters in connection with the Work Health and Safety Act 2011 (Cth) (the "WHS Act") and related purposes. That Act has as its main object providing for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by (among other things) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: see s 3 of that Act. That object is in similar terms to s 3(a) of the OHS Act and related objects. The WHS Act also provides for a civil penalty regime in Div 7 of Pt 13 of that Act and the imposition of a monetary penalty "that the court considers appropriate" (s 259). In these proceedings, of course, the penalty is to be determined according to the continued operation of the OHS Act (see [1] of these reasons); (b) the purpose of a civil penalty under the OHS Act is primarily, if not wholly, protective in promoting the public interest in compliance with the law designed, in this case, to protect the health, safety and welfare at work of employees (of the relevant employers); (c) civil penalties are "essentially deterrent" (both general and specific) and therefore "protective" of the public interest: Fair Work, the plurality at [55] and [59]; (d) the object of a penalty imposed under the OHS Act is to attempt to put a price on contravention that is sufficiently high (within the limits set by the Parliament in the OHS Act) to deter repetition by the contravener and by others who might be tempted to contravene the Act, so as to serve the objects of securing the health, safety and welfare of employees and protecting the safety of those employees in their workplaces; (e) the determination of a pecuniary penalty under the OHS Act is a discretionary judgment which engages the application of the general practice and procedure concerning civil proceedings and which involves an exercise of intuitive or instinctive synthesis; (f) the purpose of imposing a pecuniary penalty under the OHS Act is not one of punishment. Deterrence has primacy of purpose; (g) careful attention to maximum penalties will almost always be required when determining an appropriate penalty because the legislature has legislated for them and a maximum penalty invites comparison between the worst possible case and the case before the Court. Also, a maximum penalty, taken and balanced with all of the other relevant factors provides a yardstick: Markarian v The Queen (2005) 228 CLR 357, the plurality at [31]; (h) the notion of intuitive or instinctive synthesis involves taking account of all of the relevant factors and arriving at a single result which "takes due account of them all": Wong v The Queen (2001) 207 CLR 584 at 611-612, [74] to [76]; (i) the process of intuitive or instinctive synthesis requires all of the factors to be balanced in a way which reflects the application of the "rules of reason" (rationality) taking into account all relevant matters, excluding extraneous or irrelevant matters and accurately having regard to the objective facts, all brought together in exposed reasons for the exercise of the discretion in the particular way, serving the public interest in transparency; (j) insistence upon the deterrent quality of a penalty should be balanced by insistence that it "not be so high as to be oppressive": NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 F-G, Burchett and Kiefel JJ; (k) a penalty which "would deter a small company might have little effect on a very large one": Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 41-375 at 40,168, Burchett J; Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,154, French J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J; (l) to the extent that conduct in one case exhibits, in a broad sense, essential similarities with conduct in other cases which have attracted a particular pecuniary penalty, "similar penalties should be incurred" because "a hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties": NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (supra) at 295 A-B, Burchett and Kiefel JJ; Trade Practices Commission v Axive Pty Ltd [1994] ATPR 41-368 at 42,795; (m) the fact intensive enquiry going to each of the elements informing the exercise of the discretion means that, generally, "other things" are "rarely equal": NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (supra) at 295 B-C, Burchett and Kiefel JJ; (n) the penalty must compel attention to occupational health and safety generally so as to ensure that employees in workplaces will not be exposed to risks to their health and safety; (o) if the risk of injury was foreseeable even though the "precise cause" or "precise circumstances" of the exposure to risk were not foreseeable, the Court will regard that matter as a "significant aggravating factor"; (p) another such significant aggravating factor arises if the risk of injury was not only foreseeable but was "actually foreseen" and an "adequate response" to that risk was not undertaken by the employer; (q) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of the employee and a momentary lapse of supervision; (r) the neglect of simple, well-known precautions to deal with an evident and great risk of injury takes the contravention towards the worst case category; (s) employers are required to take all practicable precautions to ensure safety in the workplace, which implies an obligation of constant vigilance and therefore employers must adopt an approach to safety which is "proactive" and not "merely reactive". Thus, in determining the amount of the penalty, it will be necessary to have regard to the need to encourage a "sufficient level of diligence" by the employer in its future behaviour. This is said to be so especially where the employer "conducts a large enterprise which involves inherent risks to safety"; (t) the gravity of the consequences of an accident does not, "of itself", dictate the seriousness of the contravention or the amount of the penalty. Nevertheless, the occurrence of death or serious injury may manifest a "degree of seriousness of the relevant detriment to safety"; (u) general deterrence and specific deterrence are particularly relevant factors in light of the objects and provisions of the OHS Act; (v) the objective seriousness of the offence, without more, may call for the imposition of a "very substantial penalty" to vindicate the social and industrial policies of the legislation and its civil penalty regime; (w) the deliberateness of the contravention; (x) whether the contravention arose out of the conduct of senior management or at a lower level; (y) whether the company has a culture of compliance conducive to compliance with the OHS Act as evidenced by educational programs and other materials going to a demonstrated commitment to ensuring compliance with the OHS Act; (z) whether the contravener has shown a pre-disposition to co-operate with the authorities responsible for the enforcement of the OHS Act. As to co-operation, matters to be considered are whether the contravener has made an early admission of the contravention; whether the contravener is contrite; and whether the contravener has agreed facts relevant to the circumstances of the contravention; (aa) all of the matters at (a) to (z) comprehend an examination of the nature and extent of the contravening conduct; the damage to health and safety caused by the conduct; the circumstances in which the conduct occurred; the size of the company engaging in the contravening conduct; and whether the respondent has engaged in similar conduct in the past. These are the additional specific factors identified at [52], [57] and [58] of the Cement Australia decision which address the factors identified by French J in Trade Practices Commission v CSR (supra). 21 It is now necessary to turn to the facts agreed by the parties in accordance with the SOAF.

PART 2: STATEMENT OF AGREED FACTS 22 There is no issue as to the status or standing of Comcare to bring these proceedings. 23 All of the matters set out at [24] to [72] of these reasons are drawn from the SOAF. 24 JHPL, together with Thiess Pty Ltd ("Thiess"), was engaged by BrisConnections Operations Pty Ltd, BrisConnections Nominee Company Pty Ltd as trustee of the BrisConnections Asset Trust, BrisConnections Contracting Pty Ltd and Northern Busway Contracting Pty Ltd, to undertake the planning, design, construction and commissioning of the North Busway (Windsor to Kedron), the Airport Roundabout Upgrade and Airport Link Tunnel (collectively called the "Project") under the terms of a Design and Construct Contract dated 2 June 2008 (the "D&C Contract"). JHPL and Thiess were parties to an unincorporated joint venture known as the Thiess John Holland Joint Venture ("TJHJV"). 25 On or about 29 September 2009, Thiess and JHPL entered into a joint venture agreement (the "TJHJV Agreement") to reflect the terms and conditions on which they would associate with each other to perform the design and construction work for the Project. 26 The TJHJV Agreement provides at cl 13.1 that JHPL assumed obligations as an employer in control of a construction project arising under the OHS Act and associated regulations. 27 Construction of the Project commenced in or about November 2008 and was continuing in September 2011. 28 At all material times, the Project was a "construction project" within the meaning of Regulation 12.02 of the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (the "OHS Regulations"); involved undertaking "construction work" within the meaning of Regulation 12.02 of the OHS Regulations; and the places at which the Project was undertaken constituted a "workplace" within the meaning of s 5 of the OHS Act and a "construction site" within the meaning of Regulation 12.02 of the OHS Regulations. 29 JHPL was, at all material times, a body corporate; an "eligible corporation" declared pursuant to s 100 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the "SRC Act"); a "non-Commonwealth licensee" holding a licence under Part VIII of the SRC Act; an "employer" within the meaning of s 5 of the OHS Act; an employer in control of a workplace and an employer in control of a construction workplace. 30 Mr Samuel Joseph Beveridge was an employee of JHPL; a "non-Commonwealth licensee employee" within the meaning of that term in s 9(3A) of the OHS Act; a person at work within the meaning of s 16(1) of the OHS Act on 29 September 2011; and an employee undertaking construction work on a construction project on that date. 31 At all material times, JHPL pursuant to s 16(1) of the OHS Act, had a statutory duty to take all reasonably practicable steps to protect the health and safety at work of its employees. That duty included a duty to take all reasonably practicable steps to provide and maintain a working environment that was safe for employees and without risks to their health pursuant to s 16(2)(a) of the OHS Act; a duty to ensure that the workplace was safe for employees and without risk to their health pursuant to s 16(2)(b) of the OHS Act; and a duty to provide all employees with information, instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health pursuant to s 16(2)(e) of the OHS Act. 32 At all material times, JHPL had the duties of an employer in control of a construction project including those duties set out in Regulations 12.05, 12.07, 12.08, 12.09 and 12.12 of the OHS Regulations. 33 JHPL utilised a system called a "TBM Smoke Duct Formwork System" ("Smoke Duct Formwork") as part of the construction of the Airport Link Tunnel (the "Tunnel") to provide mobile formwork for the pouring of suspended concrete slabs which ultimately would form the roof of the Tunnel. 34 Smoke Duct Formwork was designed to be constructed within the Tunnel; assembled within the Tunnel; utilised for pouring the suspended concrete slabs forming the roof of the Tunnel; disassembled within the Tunnel; and transported from the Tunnel. The major components of the Smoke Duct Formwork were a formwork table (the "Table"); a support structure which was made up of four carrier legs; and a carrier unit used to manoeuvre and support the Table and the carrier legs. Each of the four carrier legs was made up of three sections including a hydraulic jack ("Jack"), a retractable leg ("Retractable Leg") and a steel formwork structure which encased the Jack and the Retractable Leg (the "Leg Frame")). 35 The process of disassembling the Smoke Duct Formwork used by JHPL involved these steps: (a) positioning the carrier unit beneath the Table and retracting the Retractable Leg in order to transport the section of formwork to the disassembly area; (b) the Jacks were then lowered to the floor of the Tunnel using either a hoist or a Franna crane; (c) the Jacks were removed from the Leg Frames and the Leg Frames were cut using an oxy-acetylene torch to facilitate their transportation from the Tunnel; (d) the disassembled Leg Frames were then loaded onto transport and removed from the Tunnel; (e) the Table was supported by hoists allowing the carrier unit to be removed from beneath the Table; (f) the Table was then lowered to the floor of the Tunnel and cut into sections using an oxy-acetylene torch to facilitate their transportation from the Tunnel; (g) the disassembled Table was then loaded onto transport and removed from the Tunnel; and (h) these steps were repeated for each unit of Smoke Duct Formwork. 36 On or about 26 to 29 September 2011, the following workers were employed by JHPL and were assigned to undertake Smoke Duct Formwork disassembly on those days: Mr Paul Matulick, Leading Hand; Mr Beveridge, Mechanical Fitter, Mr Peter Anderson, Tunneller; and Mr Vergilio Alacorn, Mechanical Fitter. These men are collectively described as the "Smoke Duct Formwork Disassembly work crew". 37 As to Mr Beveridge, Mr Matulick and Mr Alacorn: as at September 2011, Mr Beveridge was a qualified Mechanical Fitter and had 19 years' experience as a Mechanical Fitter; Mr Matulick was a qualified Mechanical Fitter and had 22 years' experience as such; Mr Alacorn was a qualified Mechanical Fitter and had 20 years' experience as such. As to the reporting lines of authority, the Smoke Duct Formwork Disassembly work crew reported directly to Mr Leigh Moles, a Mechanical Foreman employed at the Project. Mr Moles reported directly to Mr John Bostock, a Mechanical Superintendent employed at the Project. 38 On a date prior to 19 September 2011, Mr Bostock attended a Risk Management Meeting to discuss the disassembly of the Smoke Duct Formwork. On a date prior to 19 September 2011, Mr Bostock stated to Mr Moles words to the effect that the disassembly and removal of the Smoke Duct Formwork from a section of the Tunnel known as S512 was to commence on 26 September 2011. On or about 27 September 2011, Mr Bostock, after discussion with Mr Matulick, decided to salvage four "box" sections (referred to in the Statement of Claim as "U" sections) that made up part of each Leg Frame from the Smoke Duct Formwork (described as the "four 'box' sections") so that they could later be re-used as a transport frame for a beam which was to be removed from the Tunnel (the "Beam"). 39 The "box" sections of the Leg Frame structures were to be salvaged by oxy-cutting the said "box" sections from each Leg Frame. Mr Bostock told Mr Matulick to make some measurements of the Beam and calculate the length of Leg Frame required to be retained in order to make the transport frame for the Beam. On or about 28 September 2011, the Smoke Duct Formwork Disassembly work crew began disassembling the Smoke Duct Formwork in preparation for its removal on 29 September 2011. 40 At about 6.30am on 29 September 2011, a Prestart Meeting was held by Mr Matulick with the Smoke Duct Formwork Disassembly work crew (Mr Matulick, Mr Beveridge, Mr Anderson and Mr Alacorn). During the meeting, Mr Matulick said to the work crew words to the effect that the four "box" sections were to be cut and salvaged for re-use. 41 On 29 September 2011, Mr Beveridge and Mr Matulick measured and marked up the "box" section of the Leg Frame to be salvaged in preparation for cutting. Mr Matulick did not give Mr Beveridge specific instructions as to the methodology to be utilised in cutting the "box" section from the Leg Frame. The Leg Frame was elevated at one end as a result of the position of clevises with the result that the "box" section that was required to be cut off, was raised off the Tunnel floor. 42 The location of the cuts was such that when the cuts were completed, the "box" section of the Leg Frame would separate from the part of the Leg Frame supported by the clevises and if not independently or adequately supported the "box" section would fall towards the Tunnel floor by its own weight. 43 The weight of the "box" section of the Leg Frame to be cut was not independently supported or adequately supported. From a standing position outside the Leg Frame, Mr Beveridge commenced cutting the outside upright section of the "box" section of the Leg Frame with an oxy-acetylene torch. 44 Mr Beveridge was undertaking the cuts by cutting the side faces and bottom face of each section first, leaving the final cuts across each top until last. Mr Beveridge made three cuts to one part of the "box" section of the Leg Frame. On that part of the "box" section, Mr Beveridge had cut across two side faces and across the bottom face leaving only the top face intact. On the second part of the "box" section, Mr Beveridge cut the two side faces. Mr Beveridge also made two cuts to the underside of the "box" section which did not meet each other. Mr Beveridge was not provided with a method or instruction for viewing those cuts whilst he was undertaking them, or for subsequently checking the alignment and/or efficacy of those cuts. 45 Mr Beveridge, in cutting across two side faces and then across the bottom face when making the cuts to the first and second parts of the "box" section, had adopted a sequence of making cuts that was consistent with the sequence of cuts that qualified and experienced mechanical fitters would adopt, when acting prudently. 46 Mr Beveridge placed his head and body under the Leg Frame. 47 Mr Beveridge, in placing his head and body under the Leg Frame, in circumstances where there were no control measures in place to address the risk of uncontrolled movement; and where Mr Beveridge had already made three cuts to the other part of the "box" section of the Leg Frame and had made two cuts across the two side faces of the second part of the "box" section of the Leg Frame, departed from a practice that a qualified and experienced Mechanical Fitter would adopt when acting prudently. 48 JHPL did not expect and had not considered that Mr Beveridge would place part of his body under the Leg Frame in circumstances where Mr Beveridge had made three cuts on the first part of the "box" section and two cuts on the second part of the "box" section and where Mr Beveridge was a qualified and experienced Mechanical Fitter. 49 The Leg Frame collapsed at the point of the cuts to each part of the "box" section of the Leg Frame made by Mr Beveridge pinning Mr Beveridge under the Leg Frame. Following the collapse, an uneven break existed between the two cuts on the bottom face of the second part of the "box" section that had been made by Mr Beveridge. As a result of Mr Beveridge being pinned underneath the Leg Frame, Mr Beveridge suffered severe crush injuries to his head, neck and chest and subsequently died from his injuries on 1 October 2011. 50 At all material times, the TJHJV had in place a Construction Workplace Plan which provided that six risk management processes were deployed on the Project. They were: Safety in Design Reviews intended to identify design hazards during all phases of the lifecycle of the relevant structure; Construction Risk Register intended to capture any residual risk identified by the Safety in Design Reviews; Site Activity Packs intended to be the documented system used on the Project for planning and controlling specific construction activities made up of four components: (i) Construction Work Method Statements intended to prescribe the process and procedures required to complete a task and to assist in the development of Workplace Risk Assessments and Job Safety and Environmental Analysis ("JSEA"); (ii) Workplace Risk Assessments; (iii) JSEA instruments which were intended to provide specific instruction on how to complete a certain task and highlight the key risk management and behavioural requirements of the task; and (iv) Safety Cards. 51 The TJHJV had developed a Construction Work Method Statement specific to the assembly and disassembly of Smoke Duct Formwork. The document is called the TBM Smoke Duct Formwork System Assembly and Disassembly Work Method Statement TJH-AT-WMS-CO-0141 (the "Smoke Duct Formwork WMS" or otherwise also called the "WMS" later in these reasons). 52 The Smoke Duct Formwork WMS: (a) stated that minor activities and related issues incidental to the disassembly of the Smoke Duct Formwork would be covered and communicated in work meetings, daily pre-start meetings and further procedural documentation; (b) required work to be constructed in accordance with the Safety and Health Management Plan TJH-GL-PLN-OS-0001 (the "Safety and Health Management Plan") which stated that an activity-specific JSEA was to be implemented prior to the commencement of relevant works; (c) provided that all JSEAs were to be understood, signed off and provided to the Safety Department, prior to works commencing; (d) required work to be constructed in accordance with the Safety and Health Management Plan which provided that the Supervisor of works was to monitor compliance of the works with the activity-specific JSEA and to update the JSEA during the works; (e) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork; (f) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames; (g) did not identify or assess specific risks associated with cutting Leg Frames; and (h) did not identify specific control measures to be adopted when cutting Leg Frames. 53 The TJHJV had developed a JSEA specific to the disassembly of the Smoke Duct Formwork, described as the Smoke Duct Table Dismantling JSEA-TJH-GL-FRM-OS-036A-3-00 (the "Smoke Duct JSEA"). 54 The Smoke Duct JSEA: (a) did not address the task of cutting the Leg Frames; (b) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork; (c) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames; (d) did not identify or assess specific risks associated with cutting Leg Frames; and (e) did not identify any specific control measures to be adopted when cutting Leg Frames. 55 Messrs Beveridge, Anderson and Alacorn were required to undertake, and did undertake, JSEA training during their Tunnel Boring Machines site induction ("JSEA Induction Training") which facilitated their capacity to receive and act on instruction provided by others who received detailed training in the preparation, implementation, revision and/or monitoring of compliance with JSEA's Detailed JSEA Training. Mr Matulick was the only member of the Smoke Duct Formwork Disassembly work crew who was required to undertake Detailed JSEA Training and he had not undertaken that training before 29 September 2011. 56 On or about 19 September 2011, Mr Moles obtained a copy of the Smoke Duct JSEA from Mr Adam Watson, Smoke Duct Foreman, employed by JHPL. 57 On or about 19 September 2011, Mr Moles gave a copy of the Smoke Duct JSEA to Mr Matulick and directed Mr Matulick review the document and distribute the document to the Smoke Duct Formwork Disassembly work crew. 58 At no time did any person update the Smoke Duct JSEA, nor did any employee or agent of JHPL instruct any person to amend the Smoke Duct JSEA following the change in the work method in relation to measuring, cutting and retaining the "box" section of the Leg Frames. 59 On 22 August 2011, Mr Moles, Mr Matulick and Mr Beveridge signed a Work Activity Briefing Checklist - TBM Disassembly - G1-G2-TJH-GL-FRM-OS-036C-00 (the "WAB Checklist") in relation to the Smoke Duct Formwork disassembly. 60 The WAB Checklist: (a) did not address the task of cutting the Leg Frames; (b) did not identify the cutting of Leg Frames as an activity in the process of disassembly of the Smoke Duct Formwork; (c) did not identify uncontrolled or unexpected movement as a hazard during the cutting of the Leg Frames; (d) did not identify or assess specific risks associated with cutting Leg Frames; and (e) did not identify any specific control measures to be adopted when cutting Leg Frames. 61 No employee or agent of JHPL undertook a formal risk assessment in relation to the cutting of the Leg Frames. 62 Mr Moles and/or Mr Bostock were responsible, on behalf of JHPL, for the preparation, implementation and monitoring of compliance of JSEA documents in accordance with the Smoke Duct Formwork WMS, the "TBM Tunnel Operations Construction Workplace Plan" and their respective position descriptions. 63 The Smoke Duct JSEA was signed by the Smoke Duct Formwork Disassembly work crew on 28 September 2011. 64 The events described at [33] to [63] of these reasons constituted a failure by JHPL to take all reasonably practicable steps to provide a work environment, including plant and systems, that were safe for employees without risk to their health in that JHPL: (a) failed, as required by s 16(2)(a) of the OHS Act and Regulation 12.05 of the OHS Regulations, to identify the hazard of unexpected or uncontrolled movements during the cutting of the Leg Frames; (b) failed, as required by s 16(2)(a) of the OHS Act and Regulation 12.07 of the OHS Regulations, to adequately assess the risk of uncontrolled movements of the Leg Frame causing injury to Mr Beveridge in the disassembly of the formwork; (c) failed, as required by s 16(2)(a) of the OHS Act and Regulations 12.08 and 12.09 of the OHS Regulations to take all reasonably practicable steps to control the risks described in sub-paragraph 64(b) above, including: (i) ensuring the Leg Frame was adequately supported or restrained during the disassembly process; (ii) failing to identify the cutting of the Leg Frame in the Smoke Duct Formwork WMS or the JSEA; (iii) reassessing risks where changes to the task arose and implementing adequate controls; (iv) adequately prohibiting Mr Beveridge from accessing an area where unexpected or uncontrolled movement of the Leg Frame would result in injury; (v) ensuring adequate planning of work based on an assumption that failure will occur; and (vi) providing Mr Beveridge a safe means by which to check the alignment and/or efficacy of the cuts made to the Leg Frame. 65 The events described at [33] to [63] of these reasons constituted a failure by JHPL to take all reasonably practicable steps to provide a workplace (which was under the control of JHPL) and including plant and systems that was safe for employees without risk to their health in that JHPL: (a) failed, as required by s 16(2)(b) of the OHS Act and Regulation 12.05 of the OHS Regulations, to identify the hazard of unexpected and uncontrolled movements during the cutting of the Leg Frames; (b) failed, as required by s 16(2)(b) of the OHS Act and Regulation 12.07 of the OHS Regulations, to adequately assess the risk of uncontrolled movements of the Leg Frame causing injury to Mr Beveridge in the disassembly of the formwork; (c) failed, as required by s 16(2)(b) of the OHS Act and Regulations 12.08 and 12.09 of the OHS Regulations, to take all reasonably practicable steps to control the risks described in sub-paragraph 65(b) above, including: (i) ensuring the Leg Frame was adequately supported or restrained during the disassembly process; (ii) failing to identify the cutting of the Leg Frame in the Smoke Duct Formwork WMS or the JSEA; (iii) reassessing risks where changes to the task arose and implementing adequate controls; (iv) adequately prohibiting Mr Beveridge from accessing an area where unexpected or uncontrolled movement of the Leg Frame would result in injury; (v) ensuring adequate planning of work based on an assumption that failure will occur; and (vi) providing Mr Beveridge a safe means by which to check the alignment and/or efficacy of the cuts made to the Leg Frame. 66 The events described at [33 to [63] of these reasons constituted a failure to take all reasonable steps to provide Mr Beveridge and Mr Matulick with the instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health in that JHPL failed, as required by s 16(2)(e) of the OHS Act and Regulation 12.12 of the OHS Regulations: (a) to provide Mr Beveridge training or instruction in relation to risk or control measures associated with the disassembly of the Smoke Duct Formwork; (b) to provide Mr Matulick training or instruction in relation to the drafting, implementation or revision of JSEA's; and (c) to provide Mr Beveridge with information and instruction in relation to the hazard referred to in sub-paragraph 66(a) and a safe system of work to undertake the cutting of the Leg Frame. 67 JHPL contravened s 16(1) of the OHS Act. 68 Following the collapse of the Leg Frame, Comcare conducted an investigation. 69 JHPL co-operated fully with Comcare in the conduct of the investigation, including by providing information and documents requested by Comcare and by making its employees available for interviews by representatives of Comcare. 70 The parties consent and agree to seek from the Court a declaration that JHPL contravened s 16(1) of the OHS Act on 29 September 2011 by failing to take all reasonably practicable steps to protect the health and safety of Mr Samuel Joseph Beveridge in the manner set out at [64], [65] and [66] of these reasons. 71 Pursuant to cl 4 of Schedule 2, Part 1 of the OHS Act and the admissions made in the SOAF, as reflected in these reasons, the parties consent and agree to seek from the Court an order that JHPL pay to the Commonwealth a pecuniary penalty to be determined by the Court. 72 The parties have also agreed that JHPL pay Comcare's costs as agreed or taxed.

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Cases Cited (40)