Inspector Maltby v Josef and Sons Pty Ltd

Prosecutor: Mr M J Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young Solicitors: James Legal

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date 10 October 2003

Matter No IRC 5439 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MALTBY) v JOSEF & SONS PTY LIMITED Prosecution under section 17(1)(a) of the Occupational Health and Safety Act 1983

RULING ON APPLICATION [2003] NSWIRComm 336

1 At the conclusion of the prosecution case, application is made by the defendant that summons prosecution number 5439 of 1999, Inspector Kathleen Maltby v Josef & Sons Pty Ltd, be dismissed for the reason that the information is defective for want of particularity or in the alternative, that no prima facie case is disclosed on the evidence. The Charge

2 The defendants were by that summons required to answer a charge in these terms: On 4 December 1995 at Kogarah in the State of New South Wales, the defendant, being a person who had, to any extent, control of non-domestic premises, to wit, the Kogarah railway station and adjoining areas which had been made available to persons (not being the defendant's employees) as a place of work contrary to section 17(1)(a) of the Occupational Health and Safety Act 1983 failed to ensure that the said premises were safe and without risks to health in that it did not prevent its heavy earthmoving equipment from being operated close to a charged gas line supply in an area where construction was designed to occur. (emphasis added)

3 The particulars set out in the summons are quite lengthy and I incorporate them as Schedule One to this ruling. The Legislation

4 Section 17 of the Occupational Health and Safety Act 1983 provided as follows: Persons in control of workplaces, et cetera, used by non-employees to ensure health and safety . 17(1) Each person who has, to any extent, control of - (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom; or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. (emphasis added)

5 It may be immediately observed that s17(1)(a) created an offence relating to control of premises used as a place of work which are to be kept safe for non-employees. Section 17(1)(b) related to the control of plant or substance provided for use or operation by persons "at work" which plant or substance was to be kept safe for non-employees. The Particulars

6 The charge against Josef & Sons Pty Limited asserts the failure to control premises which are stated to be "the Kogarah railway station and adjoining area (Kogarah) which had been made available to persons (not being the defendant's employees) ... as a place of work." The particulars relevantly assert that Josef & Sons Pty Ltd made available a 7-8 tonne Daewoo excavator to Josef & Sons Contracting Pty Limited which excavator was operated on the site of the Kogarah Station Upgrading (particular 2) "close to the charged gas supply line" (particular 19); and that the defendant "failed to adequately protect the charged gas supply line whilst the excavator was being operated" (particular 27).

7 The prosecutor provided further particulars to the defendant by letter of 24 May 2000. It there asserted that the charges as drawn "demonstrated a breach of s17(1)(a) of the Occupational Health and Safety Act" and that "As to the factual basis, such control arose pursuant to the terms of the engagement between Josef & Sons Contracting Pty Ltd, and Josef and Sons Pty Ltd whereby Josef & Sons Pty Ltd hired, lent, or otherwise made available to Josef & Sons Contracting Pty Ltd for use on or around the KSU heavy earthmoving equipment. Particulars of said engagement between Josef & Sons Pty Ltd and Josef & Sons Contracting Pty Ltd are within the knowledge of the Defendant."

8 The balance of the particulars furnished by that letter, attached as Schedule Two to this ruling, make it quite plain that the prosecutor at no time asserted that Josef & Sons Pty Ltd controlled the site, but rather controlled the earthmoving equipment. The Problem

9 Nowhere do the particulars assert those facts or circumstances from which it may be concluded that Josef & Sons Pty Limited had to any extent control of the Kogarah site. On the face of it, the information is void. (John L Pty Limited v Attorney-General (New South Wales) (1987) 163 CLR 508)

10 Mr Joseph SC for the prosecutor contends that the defendants were at all times free to seek particulars had they so desired. This circumstance is irrelevant to the status of an information which the defendant contends is void ab initio for want of particularity.

11 The intention of the pleader was quite obviously that the offence to be charged was a contravention of s17(1)(b) relating to the control of plant, an offence quite distinct from the offence created by s17(1)(a) which related to the control of premises. The Prosecutor's First Solution

12 Because the information may not be amended by the substitution of a different charge, that is, a contravention of s17(1)(b), Mr Joseph for the prosecutor calls in aid s4 of the Occupational Health and Safety Act 1983 which provides that: Premises includes - (b) any vehicle, vessel or aircraft; 13 He asserts that where the word "premises" appears in the summons it may be taken to mean the "vehicle" which is particularised as the "7 to 8 tonne Daewoo," and that paragraph 2 of the particulars sufficiently informs the defendant of the circumstances in which it had control over that vehicle.

14 Unfortunately for the prosecution, this construction is simply not available. Section 4(1) of the Act in which "premises" are so defined to include "vehicle, vessel or aircraft" commences with the words "In this Act, except insofar as the context or subject matter otherwise indicates or requires".

15 A vehicle, vessel or aircraft may often be made available as a place of work, which place of work should be kept safe for the occupants and in that context, the extended meaning of "premises" is apt. A re-reading of the charge brought against the defendant set out above substituting the words "Daewoo excavator" for the word "premises" indicates that the context cannot rationally accommodate the extended meaning contemplated by s4.

16 Further, an offence against s17(1)(a) is predicated upon the premises having been made available to non-employees and it is the premises themselves which must be kept safe. The particulars of the present charge cannot accommodate the rational substitution of the word "premises" for the word "excavator" in that context or at all. The Prosecutor's Second Solution

17 In the alternative Mr Joseph contends that "premises" appearing within the charge may be construed as in fact the Kogarah railway station site, and that the extent to which, and the manner by which, the defendant had to any extent control of the premises is adequately particularised by the assertion that the defendant and Josef & Sons Contracting Pty Ltd, which performed work on the site, had common directors (particular 3). Mr Robert Josef, a director of the defendant, observed the operation of the excavator on site (particular 15). To my mind, those particulars are insufficient to discharge the fundamental requirement that an information particularised the manner of the breach, that is, in the instant case, the manner in which it may be said that Josef & Sons Pty Ltd controlled "to any extent" the site at Kogarah.

18 I hold as a matter of law that the mere fact that two corporations have common directors is an insufficient basis upon which it may be inferred that the one corporation controlled to any extent the other. The Prosecutor's Third Solution

19 Finally Mr Joseph submits that notwithstanding the defective state of the pleadings, the evidence does in fact establish that to some extent Josef & Sons Pty Ltd controlled the site at Kogarah and the prosecutor is entitled to make the necessary amendment to the pleadings to reflect this circumstance. (Leotta v The Public Transport Commission (New South Wales) (1976) 9 ALR 437)

20 Josef & Sons Contracting Pty Ltd tendered for the contract in a document under its own letterhead. (Exhibit J2 Tab 2) Abigroup Contractors Pty Ltd (Abigroup) accepted the final tender in a facsimile directed to Josef & Sons Contracting Pty Ltd transmitted on 8 November 1995 subject to a "method statement for WorkCover approval". The formal contract upon which the prosecutor relies was executed by Josef & Sons Contracting Pty Ltd on 3 January 1996 (J28).

21 The "method statement" prepared and furnished to Abigroup in response to the request of Abigroup on 8 November 1995 was provided under the letterhead of "Josef & Sons Pty Ltd" (J2 Tab3). This method statement was sent after a follow up fax of Abigroup addressed on 10 November 1995 not to "Josef & Sons Contracting Pty Ltd" but to "Joseph (sic) & Sons Pty Ltd" (J9).

22 Both Josef & Sons Pty Ltd and Josef & Sons Contracting Pty Ltd in November 1995 carried on business from 22-24 McAuley St Matraville (J2 Tab 1) and listed the same telephone and fax number on their letterheads. Clerical work for both companies appears to have been performed by the one man, Mr Anthony Hanna, who believed he was employed by Josef & Sons Pty Ltd. (Tpt 591.11)

23 From these facts I am asked to infer that Josef & Sons Pty Ltd to some extent controlled Josef & Sons Contracting Pty Ltd on a continuing basis or at least controlled their contractual obligations at the Kogarah site. I cannot draw that inference.

24 The defendant Mr Daniel Josef, was on 8 November 1996 interviewed by Inspector Maltby. In answer to question 5, "Who are you employed by and what is your position?, he answered "Josef & Sons as a supervisor". In answer to question 6, "How long have you held this particular position?", he answered "5 years". In answer to Question 9, "What company was responsible for demolishing No's 3-9 Railway Parade?", Daniel Josef answered "Josef & Sons Contracting Pty Ltd". It is apparent from other questions and answers that throughout the interview both Inspector Maltby and Daniel Josef use the two company names interchangeably.

25 In a statement given by Daniel Josef at Kogarah Police Station on 4 December 1995 he said "I am 23 years of age. I have been employed by Josef & Sons Contracting Pty Ltd for the last 6 years . . . I commenced my employment with Josef & Sons when I left school as a plant operator." -again, he used the company names interchangeably.

26 Daniel Josef supervised the works at Kogarah. Mr Joseph for the prosecutor submits that in the light of the statements recorded above I may infer that he did so as an employee of Josef & Sons Pty Ltd. This submission would be most tenuous in any circumstance but in the instant case it flies in the face of the agreed fact that "at all material times Josef & Sons Contracting employed Daniel Josef".

27 Josef & Sons Pty Ltd was incorporated on 1 May 1975 and in November 1995 its only directors were Robert and Susan Josef. The four shares in the company were held by Robert Josef (1), Susan Josef (1), Alexander Josef (1) and Emelia Josef (1). Josef & Sons Contracting Pty Ltd was on 27 September 1984 incorporated as Hatloc Pty Ltd and on 12 December 1984 changed its name to Josef & Sons Contracting Pty Ltd. In November 1995 its only shareholders were Robert and Susan Josef who each held 3000 of the 6000 issued shares.

28 Upon this structure Josef & Sons Contracting Pty Ltd whose shares were held by Robert and Susan Josef, was not controlled by Josef & Sons Pty Ltd, a company in which the holding of Robert and Susan Josef did not exceed one half of the issued shares. Conclusion

29 The charge is defective for want of particularity. In any event the evidence led by the prosecution does not establish a prima facie case that the defendant Josef & Sons Pty Ltd controlled to any extent the Kogarah site. Charge number 5439 is dismissed.

SCHEDULE ONE The particulars of the charge are: 1. The Defendant is a corporation which owned various construction equipment which it hired to or otherwise made available for the use of Josef & Sons Contracting Pty Limited. 2. Pursuant to its undertaking the Defendant made available to Josef & Sons Contracting Pty Limited a 7-8 tonne Daewoo excavator (the Excavator) to perform work on the Kogarah Station Upgrading (KSU). 3. At all material times, the directors of Josef & Sons Contracting Pty Limited and the Defendant were Susan Josef and Robert Josef. 4. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the KSU. 5. On or about 8 November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited to perform work, including the demolition of shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 6. Prior to the demolition of the building, a request was made to AGL Gas Networks Limited (AGL) to disconnect the gas supply to shops 3 and 7. 7. On or about 10 November 1995, John Princi, an employee of AGL, attended and cut and capped the gas supply line to shop 7, Railway Parade, Kogarah. 8. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 9. The gas supply line remained charged. 10. Josef & Sons Contracting Pty Limited was aware of where the gas supply line had been cut and capped. 11. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and it was completed by 4 December 1995. 12. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 13. A stake was used to mark the gas supply line when it became exposed. 14. On 4 December 1995 Josef & Sons Contracting Pty Limited instructed Robert Campbell to operate the Excavator. 15. Robert Josef, a director of the Defendant, was at the KSU on 4 December 1995 and observed Robert Campbell operating the Excavator on the eastern side of the KSU. 16. On 4 December 1995 Robert Campbell used the Excavator on the eastern side of the KSU to create a batter. 17. The Excavator was used to create the batter in the area where the gas supply line was situated. 18. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 19. The Defendant failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line. 20. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ) located at 13 Railway Parade, Kogarah. 21. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 22. At approximately 2pm on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 23. Between 2pm and 4pm on 4 December 1995 the Defendant was advised of the explosion which had occurred. 24. At approximately 4pm on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 25. The gas explosions were of sufficient extent and severity that persons were injured thereby. 26. The existence of a charged gas supply line situated in an area where construction work was designed to occur, was inherently dangerous. 27. The Defendant failed to adequately protect the charged gas supply line on the KSU while the Excavator was being operated. 28. The Defendant failed to adequately identify the charged gas supply line on the KSU while the Excavator was being operated. 29. The Defendant failed to adequately mark the charged gas supply line on the KSU whilst the Excavator was being operated.

SCHEDULE TWO (a) Whilst we are reluctant to answer your question by the assertion that this is not a proper request for particulars, we do say that the documents (being the charges) when read, demonstrated a breach of s17(1)(a) of the Occupational Health and Safety Act (the Act). (b) As to the factual basis, such control arose pursuant to the terms of the engagement between Josef & Sons Contracting Pty Ltd, and Josef & Sons Pty Ltd whereby Josef & Sons Pty Ltd hired, lent, or otherwise made available to Josef & Sons Contracting Pty Ltd for use on or around the KSU heavy earthmoving equipment. Particulars of said engagement between Josef & Sons Pty Ltd and Josef & Sons Contracting Pty Ltd are within the knowledge of the defendant. As to the legal basis, this is a matter which is arguably, not a question for particulars, but in relation thereto, it is asserted that the factual allegations previously made bring the Defendant within the terms of the Act. So far as the question is asked on an example basis, this is arguably not an appropriate request for particulars, but we assert that the factual basis for the allegation of "control to any extent" has been made out. (c) AGL documents record that on 8 November 1995 a service call was placed for the disconnection of a charged gas supply to 3 and 7 Railway Parade Kogarah. The records do not identify who made that request. (d) (i) John Princi attended on behalf of AGL and present for Abigroup Contractors Pty Ltd was Mr Luis Bustamante. (ii) The Prosecutor is unable to establish whether there was a representative of the Defendant in attendance on or about 10 November 1995, when the gas supply line was cut and capped. However, in order to meet its obligations under the Occupational Health and Safety Act, as a contractor working on the KSU and responsible for the demolition work that was to occur, the Defendant should have made a person available when the disconnection occurred. Such person made available for the on site discussion with persons disconnecting gas lines should have known the extent and nature of the work to be performed on or about the KSU and the demolition and construction aspects of that work, so as to adequately inform the person disconnecting the gas supply line where such disconnection should occur, so as to ensure the health and safety of workers on the KSU and members of the public who were to be around the KSU during the course of the demolition and construction work. (e) No, it is not alleged that there was a second attendance by AGL at the KSU on or about 10 November 1995.

(f) There were at least two excavators present on site for the purposes of demolitions of buildings 3, 5, 7 and 9 Railway Parade, Kogarah. We understand the relevant excavator was owned by Reeds Excavations and that it was operated by a person named "Alf", who was employed through Reeds Excavations.

(h) (i) Chris Stoeski, an employee of Joesf & Sons Contracting Pty Ltd instructed Robert Campbell to operate the excavator. Furthermore, it is asserted by the Prosecutor that Chris Stoeski, Robert Josef, Bernath Adler and Daniel Josef, persons employed by the Defendant in a supervisory capacity, were present at the KSU and observed Mr Robert Campbell operating the excavator. It is also asserted by the Prosecutor that neither Mr Stoeski, Mr Adler, Mr Daniel Josef nor Mr Robert Josef warned Mr Campbell of the location of the charged gas supply lying on the KSU prior to his commencing work using the excavator, or during the time when he operated same. (ii) Josef & Sons Contracting Pty Ltd instructed Robert Campbell to operate the excavator within the KSU, where the demolition had been performed and construction work was to occur.

(i) Josef & Sons Contracting Pty Ltd, as the hirer of the excavator, instructed the Defendant, the owner of the excavator, where and in what manner the driver should perform the work required by Josef & Sons Contracting Pty Ltd, and to the extent that work was to be carried out as required, Robert Campbell was authorised or instructed to create the batter.

(j) It is alleged that representatives of Josef & Sons Pty Ltd and Josef & Sons Contracting Pty Ltd did not warn Robert Campbell to stay out of the area where the charged gas supply line was situated.

It is also alleged that there was a failure on the part of the Defendant and Josef & Sons Contracting Pty Ltd to adequately sign post, guard, barricade and otherwise make obvious the location of the charged gas supply line.

(l) It is alleged that Australian standard 2601-1991 requires adequate protection and identification of charged gas supply lines. We refer you to Part 1.5.1.7 of that standard which states: "Before the commencement of any stripping or demolition, the structure and all parts of the site shall be examined by competent specialists, to determine, as far as practicable, the presence of noxious, toxic or explosive materials or conditions, which would be hazardous to the health of the public if disturbed by stripping or demolition.

The nature and location of each hazard shall be recorded and both the record and the proposed method of dealing with the hazards shall be included in the demolition work plan". It is alleged that there is an industry standard in respect of adequately protecting and identifying a charged gas supply line. It is asserted that such practice, in order to meet obligations under the Occupational Health and Safety Act, required the Defendant, as a contractor providing equipment for hire on the KSU, to have a responsible and knowledgeable employee available on site to ensure that its equipment was used in an appropriate manner when working in an area where a charged gas supply line was located.

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