Cement summons
33With the foregoing principles in mind, I turn to the Cement summons. The applicant would have it that none of the documents sought in the summons were required to be produced because the summons in one way or another offended the principles identified above. I do not accept that is the case. Whilst there are a small number of items that should be set aside, in opposing all of the summonses and seeking to have the whole of them set aside the applicant was forced to the point of nitpicking. For example, objection was taken to the well-known and understood phrase "on or about" as being too vague.
34The summons served on Cement is the principal summons. Under items 1 and 2 the summons sought the following:
All monthly board reports of Cement Australia Pty Limited [ACN 104 053 474] prepared by Christopher Guy Leon for the period 1 July 2007 to and including 13 September 2009.
All minutes of board meetings of Cement Australia Pty Ltd [ACN 104 053 474] for the period 1 July 2007 to and including 13 September 2009.
35The applicant contended these items lacked specificity and sought over two years of reports and minutes dealing with all manner of matters that had no relevance to the charges. The item does not lack specificity; it seeks monthly board reports prepared by Mr Leon and board minutes for a 27 month period preceding and up to and including the date of the alleged contraventions. The provision of 27 board reports and minutes would not appear to be onerous and would likely serve a legitimate forensic purpose in that it is on the cards the reports and minutes would deal with something as important as occupational health and safety matters and Mr Leon's involvement in such matters, given he was the managing director and chief executive of Cement. In my opinion, there is a reasonable basis to believe board reports and minutes would address measures taken by Cement regarding the safety of employees including the guarding of machinery, safety audits, risk assessment and assessment of worker competency, all matters relevant to the charges.
36It is also likely the board reports and minutes would materially assist the respondent in relation to the defences under s 26(1) of the Act in the event the applicant continues with a plea of not guilty. Section 26(1) places the onus on a defendant to show he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the relevant provision of the Act, or he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. The prosecution is entitled to challenge those defences and it is on the cards the board reports and minutes would assist in that regard.
37It may be accepted the board reports and minutes deal with matters that are not relevant to the respondent. It does seem to me, however, that it would be more oppressive on Cement to have to redact the reports and minutes to remove reference to matters not dealing with occupational health and safety than it would to simply provide copies of the reports and minutes. If there is commercially sensitive information (a matter not raised) that could be dealt with appropriately by the parties.
38Item 3 called for the production of the following documents:
All reports concerning the plant reviews of the Cement Australia (Kandos) Pty Limited [ACN 004 158 972], Kandos site, situated at 16 Jamieson Street, Kandos, New South Wales (herein referred to as 'the Kandos site') as conducted by Christopher Guy Leon, Paul McNay and Melinda Horton for the period 1 January 2008 to and including 13 September 2009.
39Again, the applicant submitted this item lacked specificity and was oppressive in asking for all plant reviews and not reviews limited to the charge. The item, in my opinion, is quite specific. "Report" is a plain English word that does not require elaboration. The respondent obviously is aware reports of the kind sought exist because she has named the individuals responsible for them and the relevant period, so it does not amount to a fishing expedition.
40A plant review is likely to be of material assistance. The charges allege the corporations failed to ensure plant was safe. That the plant reviews may address plant not the subject of the charge is not a reason to set aside the summons. As with board reports it may be more oppressive to edit the reports on plant reviews than simply provide the whole report. In any event, it is not beyond speculation that it is likely the plant reviews would materially assist in relation to the need for the prosecution to deal with the defences in the event not guilty pleas are maintained.
41Item 4 called for the production of the following documents:
All monthly reports documenting "SHE performance, incidents, injuries and investigations" for the Kandos site for the period 1 November 2006 to and including 13 September 2009.
42Production of the documents under item 4 would require about 34 reports to be produced of a specific nature. The reports are clearly relevant and it is likely that such reports would materially assist the prosecution both in respect of proving the particulars of the offence (eg, failure to ensure plant was safe; failure to provide a safe system of work and working environment) and addressing any defence under s 26(1)(b).
43Item 5 called for the production of the following documents:
All relevant "Site audit outcomes" reports for the Kandos site generated by the Safety Health, Environment and Compliance division (herein referred to as 'SHEC') and provided quarterly to the Board of Cement Australia Pty Limited [ACN 104 053 474] for the period 1 March 2008 to and including 13 September 2009.
44Whilst it may be the case that the prosecution has to prove a contravention of the corporation, Cement is not a defendant in the proceedings. It is arguable that Cement should not be regarded as a stranger to the litigation, especially when it is the subject of separate prosecution proceedings in relation to the same incident. However, I intend to take a cautious approach and regard Cement as a stranger.
45By the use of the word "relevant" in item 5 the respondent is seeking to impose upon a stranger the task of forming a judgment as to which reports are relevant to the litigation. To do so is impermissible: Waind. Item 5 is set aside.
46Item 6 called for the production of the following documents:
All quarterly brief reports from the General Manager of SHEC to the Safety, Health and Environment Compliance Committee (herein referred to as 'SHE Compliance Committee') for the period 1 March 2008 to and including 13 September 2009.
47It was contended the description of the documents "quarterly brief reports" in item 6 was too broad. I disagree. It is apparent that the respondent is aware of the existence of specific documents answering the description. I do not regard the summons as too broad or oppressive, seeking as it does six reports from an identified manager to an identified Committee in an identified timeframe. It may reasonably be assumed that the Safety, Health and Environment Compliance Committee had a responsibility regarding compliance with the corporation's safety, health and environment policies and procedures. The charge (in Matter No IRC 1493 of 2011) alleges that Cement failed to provide a safe system of work and working environment and failed to ensure plant was safe. It is, therefore, on the cards that reports from the General Manager of the corporation's Safety, Health, Environment and Compliance division to the Committee would materially assist the respondent's case.
48Item 7 called for the production of the following documents:
All reports of bi-annual 'Communication Sessions' conducted by Christopher Guy Leon and any other member of the executive of Cement Australia Pty Limited [ACN 104 053 474] for the period 1 July 2007 to and including 13 September 2009.
49The only aspect of item 7 that could be regarded as remotely vague is the reference to "member of the executive", which could easily be overcome by a simple request from Cement to the respondent for clarification, if clarification were necessary. Again, it is apparent that the respondent knows of the existence of reports referred to in item 7 because she has referred specifically to reports of bi-annual 'Communication Sessions' conducted by specified individuals.
50However, the respondent has not identified, either by evidence or submissions, a legitimate forensic purpose in seeking the reports in item 7. The Court has no idea what these reports are about and has no way of assessing what purpose they would serve. Item 7 is set aside.
51Item 8 called for the production of the following documents:
All records of the engagement of Maceco Pty Ltd ACN 133 699 804 by Cement Australia Pty Limited [ACN 104 053 474], Cement Australia Holdings Pty Limited [ACN 001 085 561] and Cement Australia (Kandos) Pty Limited [ACN 004 158 972], to install machine guarding on and around the C2 and C3 stone tunnels at the Kandos site for the period 1 January 2009 to 31 December 2009.
52It was submitted "records of engagement" was too broad and that item 8 called for the production of documents post-incident, which could not be relevant to the charge. The summons, plainly enough, is seeking any records held by Cement that shows the engagement of Maceco by Cement, Kandos or Holdings to install machine guarding on and around the C2 and C3 stone tunnels at the Kandos site for the period 1 January 2009 to 31 December 2009. The request is quite particular and would obviously serve a legitimate forensic purpose because the charges allege, inter alia, a failure to install guarding "at all crush points located in the stone tunnels ..."
53Relevantly, to "engage" is to "secure for aid, employment, use etc" (Macquarie Online Dictionary, 2012). Thus, what are being sought are records that show whether and when the services of Maceco were secured to install the machine guarding. As for records post incident, such records may well be relevant to enable the respondent to deal with any defence under s 26(1).
54Item 9 called for the production of the following documents:
All relevant CHIL database records documenting incidents involving machine guarding at the Kandos site for the period 1 July 2007 to and including 13 September 2009.
55I take the same view about this item as item 5. It is not for Cement to determine what is, or what is not, relevant. Item 5 is set aside.
56Item 10 called for the production of the following documents:
All records relating to CHIL #1497 (the report of the fatality of Colin Fuller at the Kandos site on 13 September 2009) as referred to in the SHE Compliance Committee Meeting minutes of 21 Nov 2009.
57The applicant submitted the records referred to in item 10 were sought by the respondent under a notice served under s 62 of the Act. The applicant objected on the grounds of legal professional privilege and the applicant contended the respondent did not press for production.
58That may have been the case in respect of the s 62 notice, but in order to resist production under the summons the Court has to be satisfied privilege applies. The Court is not so satisfied. The records, which obviously meet the required tests, should be produced unless the Court is satisfied the records are subject to legal professional privilege.
59Item 11 called for the production of the following documents:
All documents detailing the quarterly reviews of critical elements at the Kandos site as generated by the corporate SHEC team for the period 1 March 2008 to and including 13 September 2009.
60The respondent has not identified, by way of evidence or submissions, what legitimate forensic purpose the documents in item 11 would serve; the respondent has not indicated how the documents are relevant in the sense that it may assist her case. Item 11 is set aside:
61Item 12 called for the production of the following documents:
All documents detailing the inspections, internal audits and external audits conducted by SAI GLOBAL Limited ABN 67 050 611 642, National Association of Testing Authorities, Department of Primary Industries and Department of Environment, Climate Change and Water at the Kandos site for the period 1 July 2007 to and including 13 September 2009.
62The objection taken by the applicant to item 12 was that it constituted a fishing expedition. I do not agree. The item seeks specific documents relating to specific audits carried out by specific organisations in relation to a specific site over a specified period. The documents clearly would serve a legitimate forensic purpose, it having been alleged there was a failure to undertake certain audits relating to the guarding of plant.
63The fact that the respondent also sought production of the same documents from SAI GLOBAL is no basis to conclude the respondent was fishing. Cement may not have all of the documents in its files or vice versa.
64Item 13 called for the production of the following documents:
The January 2009 Occupational, Health and Safety Management System audit report, which includes the audit of the C2 and C3 Stone Tunnels conducted at the Kandos site by 'Henry', an internal compliance manager at the Kandos site and received by Greg Nicholas.
65The applicant's objection was essentially that the item was too vague and oppressive. On the contrary, the item is very specific. It seeks a particular January 2009 audit report conducted by an internal compliance manager named "Henry" which was received by a named individual, Greg Nicholas. The respondent is obviously aware of the particular document, so it is not fishing and the document would appear to serve a legitimate forensic purpose dealing as it does with the question of audits in the relevant stone tunnels.
66Items 14 to 18 called for the production of the following documents:
The external site guarding survey dated on or about 31 May 2002 as undertaken at the Cement Australia (Kandos) Pty Limited ACN 004 158 972 Kandos site by Advitech Pty Limited (ACN) 003 433 458.
The document entitled or containing the words 'machine guarding procedure KA - SW- 127' dated on or about 26 April 2004 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008.
The survey entitled or containing the words 'Conveyor Guarding Survey' undertaken in or around October 2006 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008.
The report entitled or containing the words 'Inspection of Limestone Mine Guards and Conveyor systems' dated on or about 14 August 2007 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008.
The subsequent report completed in or around August 2007 as referred to in Point 5.3.7 of the Cement Australia 2008 Safety, Health, Environment and Quality (SHEQ) Audit Protocol (Critical Elements) Kandos, conducted by Henry Malkiewicz on 5 to 7 August 2008.
67The applicant's objection related to the use of the phrase "on or about" or "in or around" rendering, it was submitted, the request too vague and imprecise. Each of the items needs to be read as a whole. Each of the items is quite specific about the nature of the document being sought. The phrase "on or about" may be taken to mean "near", or "approximately" or "without significant variance from the nominated date". The phrase is commonly used in criminal charges. "In or around" has a similar meaning. When the document being sought is identified with considerable specificity and an approximate date provided, it does not seem to me there is anything vague about items 14 to 18 of the summons.
68Item 18 refers to "The subsequent report". Ordinarily that might be considered somewhat vague, but the item goes on to explain it is a report completed in or around August 2007 and specifically referred to in an Audit Protocol conducted by Henry Malkiewicz on 5 to 7 August 2008. I consider the description in item 18 to be sufficient to adequately identify what is being sought.
69Items 19 and 20 called for the production of the following documents:
Minutes of the Cement Australia Pty Limited [ACN 104 053 474], SHE Compliance Committee Meeting for the period 1 March 2008 up to 20 February 2009, including copies of all reports and other documents tabled at these SHE Compliance Committee Meetings and referred to in these SHE Compliance Committee Meeting minutes.
Copies of all reports and other documents tabled at the SHE Compliance Committee Meetings listed below and referred to in their Minutes:
a) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 20 February 2009;
b) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 21 May 2009;
c) Cement Australia Pty Ltd ACN 104 053 474, meeting of the SHE Compliance Committee, dated 13 August 2009;
70The objections to items 19 and 20 appear to be that of relevance and a fishing expedition. The items seeks minutes of meetings of a committee responsible for safety compliance over a specified period and on specified dates, together with reports and other documents tabled at the meetings and referred to in the minutes. I consider there is "a reasonable basis beyond speculation that it is likely the documentation will" materially assist the respondent's case. The respondent is required to prove, inter alia, that Cement failed to provide a safe system of work and working environment. It is highly likely that the documents sought arising out of a committee responsible for safety compliance would assist.
71Item 21 called for the production of the following documents:
The Minutes of the Kandos site Occupational, Health and Safety Committee (herein referred to as 'OHS Committee') meeting held on 8 January 2009 referred to in the Minutes of the earlier meeting of the same Committee on 4 December 2008 and again in the Minutes of the meeting for the same Committee held on 5 February 2009.
72In relation to item 21 I take a similar view to that expressed in relation to items 19 and 20. There is a reasonable basis to believe the minutes of the Kandos site OHS Committee would materially assist the respondent's case.