Inspector Nathan Hamilton v Thiess Pty Ltd and Ors [2009] NSWIRComm 41 | Case summary

1 The prosecution has made an application that the proceedings in Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd, Thiess Pty Ltd and John Holland Pty Ltd be heard jointly with the proceedings in Inspector Nathan Sullivan v Parsons Brinckerhoff Australia Pty Limited, currently set down for a defended hearing to commence on 19 October 2009 for eight weeks. 2 The application arises as a result of the defendants, Pells Sullivan Meynink and John Holland having earlier sought declarations and orders before the Full Bench concerning the jurisdiction of this Court to hear the various matters. Specifically two issues were agitated before the Full Bench, namely whether the site of the alleged incident, the subject of the charges was a "mine" within the meaning of the Occupational Health and Safety Act 2000 and, whether, in the case of John Holland, at the time the proceedings were purportedly commenced against it, John Holland was, "a non Commonwealth licensee" and thereby excluded from the operation of the 2000 Act. The first issue was the subject of a judgment which was handed down by the Full Bench on 6 March 2009. The Full Bench found, in relation to that issue, that the site of the alleged incident was not a "mine" within the meaning of the legislation. In relation to the second issue, which was referred to in the present application before this Court as the "Comcare issue", the decision is pending. 3 The application was opposed by all the defendant parties, although not for the same reasons. 4 Mr Reitano of counsel, appearing for the prosecutor, advanced the application on a number of bases. First, it was submitted that it would be a waste of private and public resources for the matters to proceed separately with four separate hearings each taking in the order of eight weeks or longer. Secondly, that given the substantial identity of facts and circumstances underpinning each of the charges, and the significant identity of the charges against each defendant, the matters should be heard jointly, at least insofar as is practicable, or possible. Thirdly, the Court was informed that the prosecution intends to call in the order of 46 witnesses. These same witnesses would need to be called in the prosecution against all defendants, whether or not the matters are to be heard together. Of the 46 witnesses, three or four of them are expert witnesses. Fourthly, the brief of evidence served against all defendants, it was said, contains identical material. Fifthly, with regard to John Holland, the prosecution suggested that the proceedings in that matter could be provisionally listed with the other matters in October, subject to giving John Holland liberty to restore "the matter" should the outcome of the pending Full Bench judgment require an additional course to be taken, in which case the other matters could still be heard together. Sixthly, in anticipation of an objection to the application by Pells Sullivan Meynink, on the ground that senior counsel was unavailable for the first two days of the October hearing, the prosecutor suggested that the commencement date for all matters be changed to accommodate senior counsel's unavailability. 5 Mr Hodgkinson, senior counsel for Parsons Brinckerhoff, opposed the application primarily on the basis that if the application was granted, it would significantly lengthen the proceedings against Parsons Brinckerhoff currently set down to commence in October. In addition, Mr Hodgkinson submitted that the charges raise different issues as between each defendant which the Court will have to deal with in terms of the admission of evidence. Parsons Brinckerhoff, Mr Hodgkinson said, has already expended considerable time in preparing its case on the basis that the charges against it would be proceeding separately from the charges against the other defendants. If the other matters are heard at the same time the dynamics of the proceedings will change considerably. A further issue raised by Mr Hodgkinson was that if the matters are heard together, commencing in October, this will inevitably result in the proceedings having to be adjourned until some time in 2010. The considerable break as a result of the intervening end-of-year vacation period will, according to Mr Hodgkinson result in the exposure of the defendant to additional significant costs associated with the lengthening of the hearing and the necessity to re-acquaint itself with the issues, after a period of several weeks. In the alternative, Mr Hodgkinson submitted, that if the Court were minded to accede to the prosecution's application, all matters should be set down for a period in excess of two months so that the matters may be heard to completion without the necessity to adjourn them part-heard. This would mean vacating the present dates and fixing a new date for the hearing of all matters sometime in early 2010, if possible. 6 Mr McGrath, counsel for John Holland, objected to the application on the basis that the "Comcare issue" is pending before the Full Bench. The same issue, he said, has also been raised in unrelated proceedings in both the Federal Court and the High Court. According to Mr McGrath there is a "real likelihood" that the determination of the Full Bench both in relation to the "mines issue" and the "Comcare issue" will be taken further, "irrespective of whoever succeeds on the Comcare issue". For those reasons, Mr McGrath informed the Court, John Holland is not, and will not, be ready to proceed in October 2009. Mr McGrath's position, put on behalf of John Holland, was that all the matters against all defendants should be heard together. 7 Ms Wilson, appearing for Pells Sullivan Meynink, did not oppose the application, in terms, but expressed a preference that the matters be heard together, "in early 2010" because of the contingency that if heard in October 2009, the proceedings would be part-heard and, in the interests of keeping costs to a minimum, it was desirable that all matters be heard to completion without being part-heard. Ms Wilson also advised the Court that senior counsel appearing for Pells Sullivan Meynink was unavailable for the first two days of the October hearing dates and asked that if the proceedings were to be heard in October that the commencement date be back-dated by one week to commence on 26 October 2009. 8 Ms Constantine, appearing for Thiess, submitted that none of the matters should be set down for hearing until the "mines issue" is determined. In advancing that submission, however, Ms Constantine only said that, "it seems that that matter will be further ventilated before the Court". In the alternative, Ms Constantine submitted that all the matters should be heard together but that if the Court were minded not to proceed in October then the matters should be set down in February 2010 for a period in excess of three months. As the matters were likely to occupy in excess of three months hearing time, if heard together, Ms Constantine submitted that, "the desirable course" would be to set the matters down for hearing in February 2010. 9 During submissions put on behalf of Parsons Brinckerhoff the Court raised the possibility of extending the hearing time of the matters during the end-of-year vacation period, if necessary. Mr Hodgkinson expressed opposition to that proposal. The other defendants did not make submissions on the issue. The prosecution, in reply, adopted the proposal, contending that there was, "no reason why there should be a substantial barrier", to that course. In reply, the prosecution also submitted that it was not unusual for summary matters to be part-heard and that this would not be inappropriate, particularly in circumstances where the parties might wish to review some of the evidence over a period of time before preparing submissions. 10 Having carefully reviewed all the submissions it seems that the most practical course, taking into account competing considerations, including public interest considerations, is that all the matters should be heard together commencing on 26 October 2009. Considerations involved in the expending of additional money and resources if the matters were heard separately must outweigh any forensic advantage which might otherwise accrue to Parsons Brinckerhoff if its matters were the subject of a separate hearing. The changing of the commencement date by back-dating it one week will accommodate the availability of senior counsel appearing for Pells Sullivan Meynink. Although the Court accepts that there may be a likelihood, based on the parties' estimates of the hearing time, that the matters are not likely to conclude on the last day the proceedings are currently set down, I have indicated a willingness to extend the hearing time during the vacation period although I make no orders in that regard at this stage without hearing the parties further as to their respective availability during that period, and bearing in mind, in particular, the objection raised to that proposed course by Mr Hodgkinson. I am also persuaded by the following considerations: first, neither Pells Sullivan Meynink nor Thiess actively opposed the hearings commencing in October this year. Both parties merely indicated a preference for a hearing time sometime in 2010. Secondly, John Holland's submission concerning the "Comcare issue" and the "mines issue" I do not find persuasive. Similarly, I do not find persuasive the submission made on behalf of Thiess with regard to the "mines issue". Mr McGrath's submission was put no higher than a "likelihood" that the issues might be ventilated in other jurisdictions. Ms Constantine's submission, on behalf of Thiess, was to similar effect. Nevertheless I propose to accede to the prosecution's submission with regard to John Holland, and set down the charges against it for hearing on 26 October on a provisional basis, granting John Holland liberty to apply in order to make any application in the intervening period. 11 The orders I therefore make are as follows: (1) The proceedings in IRC 7/1993 and IRC 7/1994 (Inspector Nathan Hamilton v Parsons Brinckerhoff Australia Pty Ltd), currently set down to commence on 19 October 2009 will commence on 26 October 2009 until 11 December 2009. (2) The proceedings in IRC 7/1987 to IRC 7/1992 inclusive are set down to commence on 26 October 2009 until 11 December 2009. (3) The defendant, John Holland Pty Ltd, is granted liberty to apply at any reasonable time before 26 October 2009. ______________

Inspector Nathan Hamilton v Thiess Pty Ltd and Ors

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