Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara [2010] NSWIRComm 151 | Case summary

Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara [2010] NSWIRComm 151 | Case summary | Zoe

7 The preponderance of the evidence was in documentary form, which was admitted by consent. It included statements made by the prosecutor, who also gave oral evidence. There were also included statements of a number of witnesses, being persons who were performing work in and about the construction site, a company search and photographs. In particular, there was tendered into evidence the building contract by which Pymble No 1 retained Millennium as its principal contractor on the construction site and a great deal of documentation consisting of progress reports produced from time to time by quantity surveyors addressed to the financier of the building works. I shall return to this material later in these reasons for judgment. 8 Because the factual background against which these proceedings were conducted was not in dispute, it is sufficient that I record the following findings, none of which were put in dispute in the proceedings: 1. At all relevant times, Pymble No 1 was the owner of premises at 23 Ryde Road Pymble. 2. At all relevant times, Silvio Molinara was a director of Pymble No 1. 3. At all relevant times, Pymble No 1 engaged Millennium Project Group Australia Pty Ltd as its principal contractor to carry out certain construction works at those premises. 4. Between 1 May 2007 and about 22 June 2007 the construction site was used by persons as a place of work. 5. The construction site was unsafe in that there were persons who were required to work at 6 metres or greater from ground level without any fall prevention system in place and the premises were thereby unsafe and these matters constituted a risk to the health and safety of the persons performing that work. 9 There was no evidence adduced in the proceedings to the effect that any representative of Pymble No 1, including Mr Molinara, ever visited the site. 10 In support of his argument that Pymble No 1 had relevant control of the premises, the prosecutor relied, firstly, on the provisions of the building contract with Millennium and, secondly, on a principle of law, namely that ownership of the site ipso facto resulted in control. The building contract

.3 The notice of termination must state that it is given under this clause and a copy must be given to the architect. 29 It was said that the remediation of any default included a remediation of any breach of the occupational health and safety legislation. 30 Under a heading "Compliance with law", clause R9 compelled both parties to comply "with any requirement under any legislation, regulation, order, code or ordinance of relevant government authorities applicable to the works and this contract." 31 There are detailed provisions in the contract dealing with disputes and termination of engagement. If a dispute or difference arises, clause P1 provides that "the parties must continue to perform their obligations under this contract." There is then a provision to require a "compulsory conference" within five working days after a dispute notice is delivered. (Clause P2). Thereafter, there is a provision enabling the parties to agree to "alternative dispute resolution" by way of mediation, expert determination or arbitration. If the parties do not agree to alternative dispute resolution, either party is entitled to commence legal proceedings. 32 The contract does not compel the resolution of a dispute or difference arising under the contract on any basis that would not take some few days, at the least. 33 Section Q deals with termination of the contract by the owner. Clause Q2 allows the owner to terminate the contract "immediately" if certain things happen that would indicate that the contractor was or was likely to become insolvent. 34 If the contract is terminated by the owner, there is provision to allow the owner to take possession of the site and to exclude the contractor from it. However, this can only occur, as I have said, after termination by the owner. Quantity surveyors' reports 35 The final documentation tendered as evidence in the proceedings to which I need to refer in some little detail consists of two volumes of documents produced by Rider Levett Bucknell. The documentation consists of a series of quantity surveying reports relating to the building works at 23 Ryde Road Pymble all of which are addressed to Momentum Mortgages Limited, the financier noted in the schedule to the building contract. There is reference in this documentation to a building contract between Millennium Project Australia Group Pty Ltd as builder and Pymble No 1 Pty Ltd as owner. It is obvious from the form of the documentation that it is intended to provide certification of amounts that may properly be drawn down from time to time by the financier for payment to Millennium by way of progress payments in connection with the construction work being carried out at the site. There is a pre-commencement quantity surveying report no 2 dated 20 December 2006. Rider Levett Bucknell raised an invoice for the preparation of this report, which was addressed to Momentum Mortgages Limited. A job file summary indicates that the client for this worksite was Momentum Mortgages Limited. 36 There appear to be a succession of email and other communications between these surveyors and either Momentum Mortgages Limited or George Nahed. A number of statutory declarations were proffered to them declaring that all prior progress payments had been received, that all employees engaged in the project had been paid in full, that all superannuation, long service leave and other statutory payments had been complied with and other matters of a similar nature. The statutory declarations were given by persons who declared themselves to be a director of Millennium Project Australia Group Pty Ltd. The various reports and documentation cover the period December 2006 to December 2007. 37 The prosecutor directed the Court's attention in particular to drawdown reports no's 6 and 7 prepared by Rider Levett Bucknell and forwarded to Momentum Mortgages Limited. 38 Drawdown report no 6 is dated April 2007 and was forwarded to Momentum Mortgages Limited on 27 April 2007. It indicated that the site had been inspected on 26 April 2007 and enclosed a "photographic report". It listed the work completed since the last progress claim and noted that the total contract sum was $4,750,000 excluding GST. The total contract price inclusive of GST was $5,225,000. 39 The report authorised a drawdown of $283,734. Annexed to the report were a number of photographs which do not clearly show that there was any particular breach of the Act, and certainly no such suggestion was made by the prosecutor. However, the photographs clearly show that formwork was being erected on a floor level that was above ground level. 40 The prosecutor relied on these documents in asserting that Pymble No 1 could have gained access to the site, if it had wanted to, to check on the progress of the construction and, in particular, to ascertain whether there was any actual or potential breach of the provisions of the Act. Mr Reitano, counsel for the prosecutor, said in submissions:

(h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work. 45 The focus of attention is directed to the health, safety and welfare of people at work. 46 The specific duties directed to employers, self-employed persons, the controllers of work premises, plant or substances and designers, manufacturers and suppliers of plant and substances are set out in Division 1 of Part 2 of the Act. They are expressed in absolute terms and, as is obvious, cover a wide range of circumstances that impact upon the performance of work. 47 Section 10 is expressed not to apply to the control of premises by persons in which only employees perform work. So much is clear from s 10(3)(a). This is a matter that is covered specifically in s 8(1)(a). 48 It may be concluded, in a general sense, that there is an absolute obligation on any person who has the control of premises that are used by people as a place of work other than only employees of the person, to ensure that those premises are safe and without risks to health. 49 Subsection (4) makes it clear that the section is designed to apply to circumstances where a person does not have absolute and exclusive control of the premises. Where there is limited control the duty is confined to "the matters over which the person has control." This is complemented by s 10(4)(b) which deals specifically with an obligation to maintain or repair premises under a contract or lease. The duty is confined to the matters covered by the contract or lease. 50 Mr Reitano referred the Court to two authorities. The first is a decision of Peterson J in the Industrial Court of New South Wales in WorkCover Authority of NSW v Woolworths Limited [1994] NSWIRComm 207; [1994] NSWIRC 95 in which Growth Equities Services Pty Ltd was also a defendant. Woolworths Limited ("Woolworths") was a tenant in a retail shopping complex managed by Growth Equities Services Pty Ltd ("Growth Equities"). Woolworths had used a number of timber columns, which had been owned and used by a former tenant and which were stored in a storeroom, to partition off an area for the sale of garden plants. Shadecloth, which was owned by Woolworths, was used to connect the columns. The columns were erected by employees of Woolworths. The assistant manager of the retail complex had partly hung some of the shadecloth. The timber columns were unstable. One of them fell, killing a child who was in the retail area. 51 Growth Equities had been charged under s 17(1)(b) of the former Occupational Health and Safety Act 1983, which is in terms similar to, but not relevantly identical in all respects to, s 10 of the Act. It defended the proceedings, inter alia, on the basis that it did not have any control over the timber columns, which were, relevantly, plant for the purpose of the section. 52 Peterson J held that Growth Equities "had a degree of control over the columns which could have led to their withdrawal from use, or non use in the first place." That is, his Honour held that the control that reposed in Growth Equities consisted of a right to have refused Woolworths the request to use the columns. Furthermore, his Honour held that:

… Growth Equities staff could have reacted to the configuration of columns and shadecloth on the basis that they should not be so used because of the risk involved. I do not accept the proposition that they could do no more than influence as opposed to control the use of the columns. In all practicality, a requirement of Woolworths to not use the columns would have been effective control; a later requirement that Woolworths cease to use them, failing which the licence could be terminated on one week's notice, or the actual removal by Growth Equities of the columns, would be within the scope of the section - ' to any extent, control'. 53 The reasoning of Peterson J proceeds on the basis that prior to Woolworths occupying the shop, Growth Equities had "a de facto control" of the columns, presumably in the sense that they were stored in a storeroom which was part of the retail complex. His Honour then observed, "control does not require possession". His Honour went on to observe that Growth Equities could have refused to allow Woolworths to use the columns, which "would have been effective control." With respect, if his Honour was observing that a relevant exercise of control consists of the right not to permit the use of premises or plant, this falls outside of the provisions of the legislation. Section 17(1) of the prior Act and s 10 of the Act apply to circumstances where premises or plant have been made available or provided to persons in connection with their work (s 17(1)) or to premises or plant which are actually used by people in connection with their work (s 10). As is obvious, if there is a refusal to allow anyone to make available premises or plant for use by persons in connection with their work, there will never be any risk of a breach of s 10 of the Act because it would not apply. However, the Act is designed to apply to circumstances where such use is made available. 54 Peterson J then proceeded to deal with another aspect of control, namely over the manner in which the columns were deployed. His Honour held that the right of Growth Equities extended beyond any influence about the deployment and use of the columns. His Honour appears to have held that Growth Equities had an entitlement to direct Woolworths not to use the columns in the particular manner in which they were deployed "because of the risk involved." I assume that his Honour found that such an entitlement existed on the facts. 55 Apart from a consideration of these two factual situations, there is no general discussion of what his Honour comprehended was meant by "control" where used in the legislation. 56 The second authority relied upon by Mr Reitano is a decision of a Full Bench of the former Industrial Relations Commission of New South Wales in Court Session in McMillan Britton and Kell Pty Ltd v Leslie Mervyn Blake [1999] NSWIRComm 80; v WorkCover Authority of New South Wales (1999) 89 IR 464. These proceedings also concerned the provisions of s 17 of the former Occupational Health and Safety Act 1983 as they applied to certain plant that was used on a construction site. 57 The Full Bench commenced its consideration of the meaning of "control" by reference to dictionary definitions. The Court said:

The obligation imposed by s.17(1)(b) on the appellant to ensure the plant was safe and without risks to health is to be so viewed and as assisting in the determination of whether it had at the relevant time the requisite degree of control over the subject plant as would make it liable. In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of "control" in the context of s.17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "command" - the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of "control" is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank . It may be thought that the words "to any extent" qualify the word "control" so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase "to any extent, control" means no more than that the person liable being able to compel (or direct or command) to any extent. (At pp 480-481). 64 It may be concluded, therefore, that "control" involved an ability to direct or command the way in which the work was to be performed. It was necessary that the defendant have "the ability … to compel corrective action to secure safety …." 65 There is another authority to which I wish to refer, which was not cited by the prosecutor. It is a judgment of Kavanagh J in this Court in Inspector Dall v Brambles Australia [2006] NSIRComm 213. 66 The proceedings arose out of the death of an employee, and injuries sustained by two employees, of Demtech Pty Ltd ("Demtech"). BHP Limited ("BHP") occupied a site at Port Waratah. It contracted with Brambles Australia Limited ("Brambles") for the demolition of certain structures on the site and the general clean up of the site. Part of that work was in turn subcontracted by Brambles to Demtech. While this work was being undertaken, a boiler being demolished collapsed causing the death and injuries to which I have previously referred. Brambles was charged with a breach of s 10 of the Act. 67 There was a comprehensive written contract between BHP and Brambles. Brambles was given a licence to enter the site for the purpose of carrying out the contracted work. That work was required to be carried out in accordance with relevant Australian Standards and Brambles was required to take effective measures for the protection of and prevention of injury, loss or damage to people in performing the contract. Brambles was also obliged to ensure that the work was performed in accordance with the requirements of the WorkCover Authority of New South Wales and in compliance with BHP's safety requirements, which were set out as part of the contract. Brambles was made liable to remedy any breach by it of the contract and BHP was entitled to cancel the contract in the event of breach. 68 Kavanagh J set out in summary form Brambles' obligations under the contract in the following manner:

[98] The defendant's action on site are also relevant as to whether it was a controller of the premises. The defendant's own site safety officer visited the site regularly; it required the subcontractor to discuss work method statements and information as to when any demolition was to occur; it required the provision of any JSAs for all work on the site; it had the power to issue termination notices. Evidence revealed the defendant conducted safety audits on the site. The defendant then gave the subcontractor written instructions. An example of such an instruction was over a very small issue on 3 June 2001 when the subcontractor was required to remove a hose and keep a walkway clear. Another example was on 5 September 2002, when the subcontractor wrote acknowledging it had received the defendant's "direction" regarding the movement of the scrap from the site. The defendant had conducted a safety audit on site and demanded action from the subcontractor. The subcontractor complied with what it interpreted as a "direction" from the defendant. Further, the defendant had its employees attend site safety meetings with the subcontractor and with the head contractor to determine procedures to be followed and the timetable for work on site. All such activities demonstrate an element of a control being exerted on site through the defendant's activities. The defendant's interaction with its subcontractor was a reflection of the power it held on the site. 77 Even though Brambles' representatives were not on site on the day of the incident, Kavanagh J concluded that it was still empowered to issue directions about the manner in which the work would be performed. Thus, it relevantly had control of the premises. 78 For completeness, I observe that Kavanagh J then considered all of the particulars of the charge which were levelled against Brambles and found that a number of them had not been proven principally because there was no obligation of Brambles to have performed the work that was alleged in the charge to have constituted a failure to comply with s 10. I observe also for completeness that her Honour determined in all the circumstances to apply the provisions of s 28 of the Act and held that Brambles had made out a defence under that section to the charge. 79 The factual circumstances in Brambles are indicative of a classic situation involving control. It must be remembered that Brambles was a head contractor and that Demtech was a subcontractor. The owner of the site was BHP. There does not appear to be any reference in her Honour's judgment to any assertion that in some way BHP had control of the premises. The indicia that led her Honour to conclude that relevant control reposed in Brambles are those that are referred to in [93] of her Honour's judgment, extracted above, and that are summarised in [97] and [98]. Brambles, as head contractor, had a great deal of involvement in the building works being undertaken by Demtech and a great degree of tangible influence extending to a right to direct Demtech in matters affecting, inter alia, occupational health and safety. I observe that the situation as found by Kavanagh J in Brambles is significantly and substantially different from the factual circumstances which apply to Pymble No 1 in the context of these proceedings, to which I have earlier referred. Did Pymble No 1 have the requisite control?

e. conduct any or adequate site specific induction training before allowing people to work at heights at the premises; 81 In terms of the factual background, the circumstances which apply to these proceedings are manifestly different from those referred to by Kavanagh J in Brambles Australia. There is no evidence that Pymble No 1 or any persons on its behalf frequented the site regularly, or indeed at all. The only evidence is that the site was attended regularly by representatives of the quantity surveyors who provided reports to the financier. Certainly, there is, on the evidence, nothing to indicate any involvement on the part of Pymble No 1 in connection with any safety matters on site. This lack of involvement was a matter upon which the prosecutor relied, and I shall return to this aspect later in these reasons for judgment. 82 Furthermore, there is no suggestion that Pymble No 1 undertook any supervision of the building works or that any instructions were given to anyone about site safety and the like. There is no evidence that Pymble No 1 obtained copies of job safety analyses and work method statements and reviewed them. Furthermore, Pymble No 1 had only limited contractual capacity to deal with the building works. This could only occur in the event of a breach, after giving notice of the breach and the conduct of certain interlocutory steps, which I have previously described. These matters extended also to any safety concerns. 83 I am unable to conclude that there is any basis upon which it could be determined that Pymble No 1 had any ability to give directions to anyone performing building work at the construction site in connection with any matter involving any aspect of the building works. There is no evidence, nor could it be concluded, that Pymble No 1 had the ability to compel the taking of any action or to compel that anyone desist from taking any about safety matters, whether under the contract or otherwise. 84 Mr Reitano submitted that the requisite control could be implied from a number of circumstances. Firstly, if a representative of Pymble No 1 had attended the site and seen that there were people "working near the edge six metres up in the sky, no-one would bat an eyelid at the suggestion that he would have had a right under the contract to say to the contractor: You are in serious default because you are required to comply with relevant legislation and you are presently, as far as I can tell, in breach of s 10 of the Occupational Health and Safety Act. If you have employees here, you may be in breach of other sections. You might also be in breach of s 8(2) and I require you to correct that under pain of termination of the contract." 85 I observe that there is no such provision in the contract that would enable Pymble No 1 to direct that work cease instantly, nor is there any obligation on the part of Pymble No 1 to visit the site or to seek access to it. 86 Secondly, Mr Reitano said that control could have been exercised by Pymble No 1 appointing an architect and the architect giving directions as permitted by the contract. 87 Thirdly, he asserted that Pymble No 1 could have given reasonable notice under clause F to seek access to the site so as to inspect it, especially in terms of occupational health and safety considerations. 88 I observe in connection with the second and third points above that whilst Pymble No 1 had the right under the contract to do either of these things, there was no obligation under the contract on its part to do so and apart from the matters raised by the prosecutor, no need for it to do so. 89 In summary form, it was the prosecutor's submission that Pymble No 1 could not avoid its obligations under the Act by simply "walking away" from any consideration of safety issues by failing to appoint a consultant or architect and by failing to seek access to the site. The fallacy with this submission is that it presupposes, in the first place, an obligation on the part of Pymble No 1 as owner of the site to take some active step in connection with safety matters independently of any contractual obligation (as opposed to entitlement) to do so. There is no such obligation. The lack of any such obligation became the basis of Mr Reitano's next submission. It arose out of an exchange that I had with him during the course of oral submissions. I set out that exchange below:

REITANO: One should not lose sight of the fact that the owner owned the premises and in that very relevant respect, had the capacity to control everything that occurred on the premises. Even more so in circumstances where what was happening was a contravention of the Occupational Health & Safety Act . I keep driving back to the contract and it doesn't necessarily flow from that. 91 The submissions made by Mr Reitano were made on behalf of the prosecutor, an inspector of the WorkCover Authority of New South Wales, and must be seen as representing the view of that Authority. This is a view that is inconsistent with the decision in Rowson and dismissal by Cullen J of the charge in those proceedings. I repeat that the Full Bench in McMillan Britton approved of the decision in Rowson. It seems to be the position of the WorkCover Authority of New South Wales that ownership of a building site per se will create an obligation under s 10 of the Act to ensure that the building works are conducted in a way that ensures that the premises are safe and without risks to health. This will be the case without any regard at all to the contractual provisions that apply to the carrying out of that work. If this position were correct, then every owner of every building site is liable to prosecution for a breach of s 10 of the Act if building work is carried out by anyone other than the owner in circumstances which render the building site unsafe and which create a risk to the health and safety of any person who is working in or about it including the means of access to or exit from the building site. 92 Mr Reitano endeavoured to limit the application of s 10 to construction sites that did not involve construction of residential premises. Arguably this is incorrect because the exclusion in s 10 (3)(b) refers to, firstly, premises that are already occupied as a private dwelling and, secondly, to "a" private dwelling. It is arguable that unless and until the premises are so occupied, the exclusion will not apply. Furthermore, it is arguable that a duplex or a block of units or apartments will fall outside the exclusion and accordingly be caught by s 10. 93 If this is the case, then each owner of premises upon which building work is being conducted will be compelled to make a value judgment about how often and in what circumstances and in what manner the owner should enquire about the safety of the premises having regard for the state of the building works and about any risks to health and safety posed to any persons performing work in and about the construction site. Perhaps such practices already exist in connection with very large construction sites, but one must query whether such practices exist in connection with any building site other than one that is very large. I make these comments so that there may be some awareness in the investment community about the position taken by the WorkCover Authority of New South Wales as reflected in its submissions in these proceedings, submissions that are consistent with those put in previous proceedings taken by way of prosecution for breach under the Act. 94 I reject the submissions made on behalf of the WorkCover Authority of New South Wales that every owner of premises upon which building works are being conducted has "the capacity to control everything that occurred on the premises …" and that this equates with "control" for the purpose of s 10 of the Act. Such a submission at face value without any reference to any underlying factual situation is plainly inconsistent with the judgment of the Full Bench in McMillan Britton, which in turn endorsed the approach of Cullen J in Rowson. Ownership of premises upon which building works are being constructed does not, without more, create at law an ability to direct or command the way in which the building works are to be performed. It does not create at law the ability to compel corrective action to secure safety on the site. It does not constitute control for the purpose of s 10(1) of the Act. 95 As I have indicated, Mr Reitano submitted that Mr Molinara, or any other representative of Pymble No 1, could have arranged for someone to attend the site to see whether there was anything that was unsafe. Mr Molinara, on the evidence, resided in South Australia. This mattered not, according to Mr Reitano, because Pymble No 1 had the ability to retain persons on its behalf to inspect the site to ensure that it was safe. But this begs the question of how often such inspections should be undertaken. Furthermore, it would be necessary for either the owner or a representative of the owner to possess the necessary technical skills, expertise and qualifications to be able to assess and comprehend whether or not anything that was happening on the construction site created a risk to the health and safety of persons working on or about it. If one extrapolated this assertion, made on behalf of the WorkCover Authority of New South Wales, to its logical conclusion, it would be necessary for the owner or a representative of premises on which construction works were being undertaken to retain such persons with relevant expertise attaching to every facet of the building works being undertaken including every trade performing that work. It would require, in effect, constant and comprehensive supervision of the work being undertaken by the principal contractor and all subcontractors to ensure that the premises were safe and without risks to health as required by s 10. 96 In R v Chargot Limited (t/a Contract Services) and ors [2008] UKHL 73, Lord Hope of Craighead, delivering the principal speech in the House of Lords, speaking admittedly about a provision of a different kind in the equivalent English legislation, said:

The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. (At [27]) 97 As was made clear by Lord Hope of Craighead, the legislation is intended to be applied in a practical sense so as to reflect everyday life. The imposition of an obligation under s 10(1) on the owner of premises in circumstances where building work is being conducted pursuant to a building contract with a head contractor involving no contribution or interference by the owner does not reflect common sense reality. Futhermore, as I have said, it is inconsistent with the judgment of the Full Bench in McMillan Britton and inconsistent with the approach of Cullen J in Rowson, endorsed by the Full Bench in McMillan Britton. Furthermore, it is inconsistent with the approach adopted by Kavanagh J in Brambles. Her Honour was able to identify many indicia in support of a conclusion that there existed in the circumstances of those proceedings relevant control, in the sense established by the Full Bench in McMillan Britton, which her Honour followed. 98 Of course, there will be circumstances where owners of premises on which building work is being conducted will clearly have the requisite control for the purpose of s 10(1). A clear example is an owner builder. If the owner, having contracted for the whole of the building works to be carried out by a head contractor nevertheless retains the right to influence the manner in which the building works are being carried out and establishes a regime to allow the owner to regularly inspect and make directions about the manner in which the work is to be conducted, this will also arguably constitute control. However, in the circumstances of these proceedings, no such indicia exist. I reject the prosecution's submissions that the ability to regain possession after termination of the building contract or the mere fact that a breach of the Act constitutes a breach of the contract will per se create the requisite control of the premises for the purposes of s 10(1). 99 Indeed, there may be circumstances where a person external to the head building contractor or any subcontractor may possess the requisite control for the purpose of s 10(1). Such a person would arguably be the prosecutor in the circumstances of these proceedings. By s 50 of the Act, an inspector may enter any premises that he or she has reason to believe is a place of work, and may do so without notice (s 51). The inspector may use reasonable force to gain such entry if authorised to do so (s 54). Any such inspector who enters premises has a broad range of powers as set out in ss 59, 60, 62 and 63. 100 Significantly, s 93 permits an inspector to issue a prohibition notice. Section 93 is in the following terms:

(e) include information about obtaining a review of the notice under this Part. 101 It is arguable that the ability to issue a notice prohibiting the carrying on of any unsafe work activity under s 93 constitutes control for the purpose of s 10 of the Act. 102 I know of no principle of law, apart from any contractual obligation or entitlement, that would result in the owner of premises upon which building works are being undertaken being able to exercise the relevant control over those building works so as to ensure that the construction site is safe and without any risks to the health of people who are working upon it. Any such control would need to be determined either pursuant to contract or pursuant to some custom and practice or course of conduct established as having an appropriate factual basis. Control cannot be equated with a contingent right of access which may, in certain circumstances, repose in the owner of premises. In the absence of any contractual or other basis properly established on the evidence, it is impermissible to conclude that Pymble No 1 was entitled in some way to direct what action should be taken or to give commands about any action designed to remove the unsafe circumstances and the risks to health which undoubtedly existed on the building site between the dates alleged in the charge. 103 The conclusion that I have reached is reinforced in my opinion by the provisions of s 10(4)(a). There can be no doubt that in the circumstances of these proceedings, if there was any relevant control vested in Pymble No 1 (and I have found that there is no such control), it would be designated as "limited" control. Such control would therefore extend only to "the matters over which" Pymble No 1 had control. If, for present purposes, I assume that there was some control as asserted by the prosecutor in the nature of the ability to access the premises upon reasonable notice or the ability to give notice of a breach, this control would extend to these matters only. It would not extend, without further steps being taken, to the issuing of directions or the giving of commands that the deficiencies be rectified. Whether and to what extent the giving of notice about a breach could have been effected so as to compel action to be taken at some stage between 1 May 2007 and 22 June 2007 is a matter of speculation. In circumstances where there is no evidence that any representative of Pymble No 1 was aware of the state of the building works at any time and in circumstances where I have concluded that there was no obligation of any kind to inspect the premises, it would be unsafe to determine that there was any limited control which extended to the issue of a direction or the giving of a command which would have been effective at any given time after notice of the breach had been given by Pymble No 1 to Millennium and after the procedures which are set out in the building contract had been complied with. 104 For completeness, I return to the particulars of the charge. They are all framed in terms of Pymble No 1 having failed to take certain action. These include the conduct of an adequate risk assessment, the provision of a fall prevention system, the provision and maintenance of a safe work method statement, the provision and maintenance of an occupational health and safety management plan and the conduct of site-specific induction training. These are all matters that would clearly fall outside any control that Pymble No 1 may have exercised in connection with these building works. It is feasible that it could have conducted a risk assessment and could have provided and maintained an occupational health and safety management plan at the premises. However, any such action on its part would have, in turn, required an appropriate interrelationship with Millennium and, in turn, between Millennium and any subcontractors on site. On the other hand, arguably it would be impossible for Pymble No 1 to provide any adequate fall prevention system, to provide and maintain safe work method statements to people who were working at height and to conduct any site-specific induction training before allowing people to work at heights at the premises. In order to attend to any of these matters, it would have been necessary first for Pymble No 1 to have terminated the contract with Millennium. 105 The particulars levelled against Pymble No 1 are inappropriate and inadequate. They do not reflect the case that the prosecutor sought to make out in the course of the proceedings, which was based on a submission that Pymble No 1 should have given appropriate directions or commands to Millennium or others involved in the unsafe circumstances attending to the building site. Arguably, the prosecution case that was put during the course of the submissions is not consistent with any particular with which Pymble No 1 is charged. On this basis also, the proceedings should be dismissed. However, it is not necessary that I determine this particular matter given the conclusion that I have reached, that Pymble No 1 did not relevantly have control of the premises as alleged. 106 Accordingly it follows that the proceedings in both cases should be dismissed. I will reserve costs. If either defendant wishes to make submissions seeking any order for costs, those submissions should in the first instance be provided in written form within one month of this date. Orders

Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (5)