Respective roles and culpabilities of persons at the site
30In conducting an assessment of the respective culpabilities of each defendant, I also rely upon the observations of Wright J in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 (2000) 99 IR 163 at [38] wherein his Honour said:
Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s 50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.
31According to the prosecution, Mr Seovic, although in New Zealand attending to another business, was the sole director of the corporate defendant at the time of the offence, and, as such, was the ultimate controlling mind of the corporation. It was further submitted that the culpability of Mr Seovic must be assessed not only against the fact that he was the director, but also against the fact that he pleaded guilty which imports a concession that he had influence over the affairs of the corporate defendant.
32In relation to Mr Miskell, it was submitted by the prosecution that as general manager he had ultimate responsibility and was in a position to direct that a risk assessment be carried out for the work being performed by Mr Cooper at the time of the accident.
33It was submitted on behalf of Mr Seovic that he was a director in name only and that his father, John Seovic, was the controlling mind of the Seovic group of companies which conducted the corporate defendant. Moreover, Mr Seovic was not involved in the business at the time of the offence, he was in New Zealand conducting another business. It was also submitted that Mr Seovic believed that the business of the corporate defendant was being conducted by competent people, a matter relevant to the exercise of due diligence. Mr Seovic's belief was based upon the fact that no previous accident had occurred in relation to the work being performed (and, by inference, the workers were competent). In addition, Mr Seovic's belief was said to be based on the fact that Mr Miskell did not report to him, but to John Seovic, the real controller and person ultimately responsible. Mr Seovic's involvement in the business and therefore in the circumstances of the offence, it was submitted, was "slight".
34On behalf of Mr Miskell it was submitted that the repair and maintenance of the mining equipment, which included the coal shuttle car, was operated as a separate business by Kevin Gander, an employee of the corporate defendant. (According to Mr Seovic, Mr Gander was the Workshop Foreman from about 9 February 2000 to 25 July 2008.) It was also submitted that Mr Miskell had no involvement in the "day-to-day" operation of the corporate defendant. Instead, his role was confined to matters of financial viability. Again, it was submitted that John Seovic was ultimately responsible and Mr Miskell's involvement was "slight".
35The evidence on this issue consists of a number of written statements which were not challenged by the prosecution. The Court has no basis, therefore, barring any internal inconsistencies or contradictions, for not accepting what is said by each statement maker.
36In his statement, Mr Seovic said that he had no involvement in the corporate defendant's business after it purchased and moved to new premises in 2000 and commenced conducting its business of repairing and maintaining mining equipment such as the coal shuttle car involved in the accident. According to Mr Seovic, the corporate defendant purchased the premises from another business and effectively took over and commenced to run the business operations there, including the retention of some 15 employees of the former business. Those retained employees included Howard Domsalla, Mr Gander, Mr Cunningham and Mr Patrick.
37Mr Seovic explained that Mr Domsalla was the general manager of the newly acquired business. He looked after and was responsible for the repair and maintenance of the mining equipment. Mr Seovic looked after the servicing, repair and maintenance of plant and equipment operated by Seovic Civil Engineering (SCE) at a different workshop on the premises. SCE is a corporate entity within the Seovic group of companies. Mr Seovic said that Mr Domsalla did not report to him, but answered to his father, John Seovic. After Mr Domsalla left in 2001, Mr Gander took over most of his functions. Mr Seovic said that, based on his observations, Mr Gander and other employees were, "very experienced in the work that they did". Mr Seovic said he had a role in the formulation of work methods or other arrangements that he believed needed correction. In those instances, he brought the matters to the attention of Mr Gander. He also said that John Seovic kept him informed about the corporate defendant's banking and finances. He also signed company documents. Although he moved to New Zealand in mid-2000 to operate another business and had no involvement in Mr Miskell's appointment, it cannot be said, based on Mr Seovic's evidence, that he had no active role at all in the day-to-day operations of the corporate defendant.
38In December 2009, Quentin Jascha Seovic replaced his brother, Mr Seovic, as director of the corporate defendant. In a statement he confirmed what Mr Seovic said in relation to his involvement in the day-to-day operation of the corporate defendant. In relation to Mr Seovic's involvement, Quentin Seovic said:
Even though my brother Jason Seovic was the director of Seovic Engineering until December 2009, he had no day to day involvement in its business or its activities during the time that I was working for it from 2005. In early 2001, Jason had established a business in New Zealand that carried out similar work to that of Seovic Civil Engineering namely concrete slip forming, until it was sold, to the best of my recollection in late 2008. Jason then returned to Australia and resumed his previous position as Plant Manager for Seovic Civil Engineering. In early 2009 he concentrated on the establishment of the diamond grinding aspect of that company.
39In relation to the involvement of John Seovic in the business, Quentin Seovic said:
My father's involvement in the business of Seovic Engineering has at all material times been limited to that of financial funding and setting its budget. He has always relied upon others to handle its day to day operations. From my observations, he has no knowledge or involvement in the work carried out by the company. He has told me that the primary reason for taking on additional work for that company in April 2000 was to allow Seovic Civil Engineering to operate out of the Graham Hill Road property. He has also told me that from the time of the acquisition of that property Howard Domsalla and Kevin Gander reported to him when necessary and usually regarding general business or financial matters until Paul Miskell was appointed as General Manager. The appointment of Paul Miskell, Kevin Gander's subsequent departure and my increased involvement resulted in my father's involvement in Seovic Engineering decreasing until he had no involvement at the time of Mr Cooper's death on 26 September 2008 apart from that stated at the beginning of this paragraph. No advice or instructions were received by or taken from him by me or other persons working for Seovic Engineering in relation to the day to day management and operations of that company.
40Mr Gander's role in the business was explained by Quentin Seovic in the following way:
From 2005, I also became involved in the repair and maintenance business of mining equipment conducted by Seovic Engineering and was responsible to its Manager, Kevin Gander. I virtually became his offsider or assistant and under his supervision became involved in the management and operation of that business. He was responsible for the management and operation of the business of that company.
41Quentin Seovic also explained his own involvement in the business:
In assisting Mr Gander, I participated in the generation of new work and also in the management of the repair and maintenance projects for which Seovic Engineering was responsible. I was involved to a limited extent in the interaction with clients and quality assurance work.
After Kevin Gander left Seovic Engineering on 25 July 2008, I performed many of his duties in conjunction with Neale Cunningham, Workshop Manager while a replacement was sought. I reported from that time to Paul Miskell, in the way described above and also in relation to the matters about which I had formerly reported to Kevin Gander. Neale Cunningham reported to Paul Miskell about the matters which he had formerly reported to Kevin Gander. Paul Miskell continued to have no involvement in the day to day management and operations of the company.
42Based on the foregoing material, I make the following observations:
i) Mr Seovic was the sole director and on his own evidence played some active role in the day-to-day operations of the business, for example, he formulated work methods and consulted with Mr Gander about those work methods. In addition, John Seovic kept him informed about the corporate defendant's banking and finances;
ii) John Seovic had no involvement in the day-to-day operations of the corporate defendant. His role was confined to matters of banking and finances;
iii) the managers of the repair and maintenance of the mining equipment side of the business, principally, Mr Gander, are said to have had a "hands on" role in the business. However, the evidence in relation to what those managers actually did and what were their responsibilities, in particular in relation to matters of safety, is scant on detail and consists of only general information, which the Court feels constrained to say provides little assistance to its consideration of the issue.
43The fact that Mr Seovic may have had little involvement in the business because of his business commitments in New Zealand does not exempt him, as sole director, from discharging his obligations under the Act. Mr Seovic accepts that he was complicit in the offence by his plea of guilty. The offence, I have found, was a serious one. Moreover, a belief in the competency of others to safely run the business hardly constitutes a sufficient response to the failure to have in place any safety procedures for the work and the failure to undertake on assessment of the risks. There is nothing in the evidence from which it may be concluded that Mr Seovic was not in a position to make suitable enquiries of the managers, for example, to ensure that they were attending to safety matters, at the premises. In my view, given these matters, Mr Seovic's role in the circumstances of the offence could not be said to be minor, although given that the "on-site" managers, in particular, Mr Gander, and perhaps Mr Cunningham (as well as Quentin Seovic) also had responsibilities at the premises by virtue of their roles as managers, Mr Seovic's culpability may be assessed to be less than the corporate defendant's culpability. The corporate defendant's business operations, on the evidence, appear to have been conducted very informally with no one person identified as responsible for directing its daily operations, in particular, with regard to matters of safety. It appears to the Court that the employees working in the corporate defendant's workshops were left to their own devices on matters of safety simply because they were considered to be experienced and competent.
44A similar conclusion is available based on the evidence in relation to Mr Miskell. According to Quentin Seovic, neither John Seovic, Jason Seovic nor Mr Miskell had any involvement in the day-to-day management and operations of the corporate defendant. Quentin Seovic makes this statement about Mr Miskell despite the fact that Mr Miskell was the general manager and it is by no means clear on the evidence who, if anyone, had involvement, or the extent of that involvement, in the day-to-day operations of the corporate defendant, regarding matters of safety.
45In his statement, Mr Miskell recalled a conversation with Mr Gander shortly after he assumed the position of general manager during which Mr Miskell said that Mr Gander told him that he "believed" Mr Miskell's role was confined to SCE and Mr Gander's role was to continue to run the corporate defendant's operations. The statement sheds little light on what Mr Gander actually did, although it may be inferred that he had a more "hands on" role in the daily operations of the business than did Mr Miskell. In relation to Mr Cunningham, Mr Miskell said that from the time he took over as general manager, Mr Cunningham "had overall control of the work" in the workshop. Apart from a general reference to the provision of training by Mr Cunningham to employees in the workshop, Mr Miskell provided no further information as to what responsibilities Mr Cunningham had with regard to matters of safety. Mr Miskell says he did not become involved in the day-to-day conduct of the business. He reported to John Seovic not Mr Seovic in relation to financial matters. He promoted and dismissed employees. He had a practice of having discussions with the corporate defendant's "on-site" managers. This category of employee presumably includes Mr Gander and Mr Cunningham, although Mr Miskell provides no details of the contents of those discussions. He said that after Mr Gander left, Mr Cunningham and Quentin Seovic took over Mr Gander's functions. He said that they reported to him on matters concerning the conduct of the business. According to Quentin Seovic, the content of his reporting to Mr Miskell was confined to administration and financial matters. Mr Miskell said that both Mr Cunningham and Quentin Seovic, like Mr Gander, were responsible for the conduct of the business.
46Like the evidence of Mr Seovic, Mr Miskell's evidence is scant on detail in relation to what constituted "the conduct of the business" in particular in regards to matters of safety, about which there is no detail. Again, what emerges from his evidence is that no-one appeared to have the conduct of the corporate defendant's operation with regard to matters of safety. Mr Miskell, like Mr Seovic, also accepted responsibility for the corporate defendant's omissions by reason of his plea of guilty. Mr Miskell was complicit in what can only be described as a serious offence. Nor can his role, like the role of Mr Seovic, be said to be a minor one in the conduct of the corporate defendant's daily operations in the workshop. He was the General Manager. On his own evidence, he promoted and dismissed employees of the corporate defendant and he had a practice of holding discussions with the "on site" managers, although there was no evidence as to the content of those discussions. It was also incumbent upon Mr Miskell, by virtue of his senior position within the corporate defendant's structure, to at least make enquiries about safety in circumstances where no safety procedures, formal or informal, were in place in the workshop.
47Neither John Seovic, nor the on-site manager, nor Quentin Seovic, have been prosecuted in relation to the offence, a matter which, according to the defendant, gives rise to a justifiable sense of grievance. The significance of a failure to prosecute other persons who may have contributed to the creation of the risk to safety was explained by Wright J in Walco Hoist at [34]:
The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.
48The evidence does not establish that John Seovic had a primary role in the operations of the corporate defendant. Whatever role he may have had appears to have been confined largely to matters of banking and finance. He held no formal position at the time of the offence within the corporate defendant's structure. With regard to the "on site" managers, Messrs Domsalla, Gander and Cunningham, and also Quentin Seovic, the evidence sheds no light on what was their involvement in matters of safety at the premises of the corporate defendant. The only detail that may be gleaned from the evidence is that the "on site" managers had a "hands on" role in the workshop, but the evidence is silent as to what were their duties and responsibilities in the discharge of that role. Given the state of the evidence in relation to those persons not prosecuted for the offence, the Court is unable to make any findings that John Seovic, Quentin Seovic or any of the "on site" managers contributed to the creation of the risk to safety.