Inspector Stephen Cooper v Quality Formworks Pty Ltd; Assad Saliba and Holdmark Developers Pty Ltd

Occupational Health and Safety Act 2000 - s 8(1), s 8(2), s 26(1) - accident on large building site - formwork company and its director involved in prohibited system of drop-stripping formwork - building company failed to adequately supervise formwork company and its employees - formwork dropped leading to large piece of timber falling into laneway adjoining site - timber hits parked utility and pierces windscreen - pleas of guilty entered - serious breach by formwork company - general and specific deterrence - early pleas warrant significant discount on penalty - totality principle applied to charges involving formwork company and director - good record and co-operation with investigation by WorkCover - financial situation of company and director considered - significant debts affect ability to place detailed financial information before Court - fines discounted as result of financial position of both company and director -penalties imposed - building company guilty of serious breach - general and specific deterrence considered - relatively early plea - prior conviction - no evidence called regarding subjective factors - co-operation with investigation by WorkCover - penalty imposed. CATCHWORDS: Fines Act 1996 - s 6 - sufficiency of evidence to warrant exercise of discretion - present lack of financial resources uncontested - consideration of circumstances whereby evidence unable to be fully put before the Court.

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 at 188 Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435) CASES CITED: McColl v John Watson Building Services Pty Ltd and anor (2004)137 IR 310 R v Rahme (1989) 43 A Crim R Retsos v Regina [2006] NSW CCA 85 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309 WorkCover Authority of New South Wales (Inspector Robinson) v Milltech Pty Ltd (2003) 128 IR 234

PROSECUTOR: Mr C Bolger of counsel SOLICITORS: DLA Phillips Fox

DEFENDANTS: Quality Formworks Pty Ltd LEGAL REPRESENTATIVES: and Assad Saliba Mr J Nasr, Solicitor SOLICITORS: CPC Lawyers

DEFENDANT: Holdmark Developers Pty Ltd Mr A G Rogers of counsel SOLICITORS: Advance Legal

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 25 May 2007

Matter No IRC 1641 of 2006 INSPECTOR STEPHEN COOPER v QUALITY FORMWORKS PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 1642 of 2006 INSPECTOR STEPHEN COOPER v QUALITY FORMWORKS PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 1643 of 2006 INSPECTOR STEPHEN COOPER v ASSAD SALIBA Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of the Act

Matter No IRC 1644 of 2006 INSPECTOR STEPHEN COOPER v ASSAD SALIBA Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26(1) of the Act

Matter No IRC 1645 of 2006 INSPECTOR STEPHEN COOPER v HOLDMARK DEVELOPERS PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 123

1 In early 2004, the construction site at Vales Lane and Queen Street, Auburn was employing a large workforce in the erection of a shopping arcade with business and residential accommodation. Holdmark Developers Pty Ltd ("Holdmark") was the builder and principal contractor (and a company related to the developer) for this very large site which was known as the "Auburn Central" project. Amongst the variety of contractors engaged was Quality Formworks Pty Ltd (Quality Formworks). As its name suggests, Quality Formworks was engaged in the business of providing formwork services at the project for Holdmark and was an employer of a number of persons including Assad Saliba, a director of that company. In March 2004, Mr Saliba was the sole director and shareholder of Quality Formworks. 2 During the morning of 23 March 2004, Kevin Fisher was driving his utility along Vales Lane on his way to work. Because of obstruction by a truck in the laneway, he was required to stop his vehicle and while waiting to proceed his utility was hit, firstly by a piece of formply board falling from the construction site and shortly thereafter by a piece of formwork timber approximately 4.8 metres in length. The length of timber struck the windscreen of the utility, entered the cabin of the vehicle and struck the steering wheel column before bouncing and striking the driver's side door. Mr Fisher sustained numerous small lacerations and abrasions to both hands and his right arm. 3 Later that day, the incident was investigated by Inspector Cooper of the WorkCover Authority. Following an investigation, the Inspector commenced prosecution proceedings against Quality Formworks alleging a breach of 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 and also proceeded against Mr Assad Saliba as a director of Quality Formworks for breaches of the same provisions by operation of s 26(1) of the Act. Prosecution proceedings were also commenced against Holdmark alleging a breach of s 8(2) of the Act. On the first occasion that the matters were listed before the Court, Quality Formworks and Mr Saliba entered pleas of guilty. Holdmark wished to consider their position and, on the third occasion the matter was listed, a plea of not guilty was entered. A hearing was listed for five days in the middle of February 2007 but, in late December 2006, Holdmark altered its plea and entered a plea of guilty to an Amended Application for Order. The matters thereafter proceeded together and this judgment deals with the evidence and submissions on sentence. 4 In relation to Quality Formworks, the s 8(1) breach alleged a failure to ensure health, safety and welfare at work of all its employees including, in particular, Assad Saliba, Louis Esho and Sabah Bani. The particulars of the contravention were:

(i) A failure to ensure a safe system of work for dismantling formwork at the Auburn Central construction site in that employees were engaged in drop-stripping of formwork, and (ii) A failure to provide adequate supervision of employees so as to prevent employees from engaging in drop-stripping of formwork.

The breach under s 8(2) alleged against Quality Formworks was that being an employer it failed to ensure that persons not in the defendant's employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work, in that it failed to take adequate measures to prevent materials from falling from the Auburn Central construction site on to Vales Lane and to prevent the risk of injury to persons on Vales Lane created by the fall of a piece of formply board and a piece of timber on to Vales Lane. The persons not in the defendant's employment who were at its place of work at the time were the persons on Vales Lane and in particular Kevin Fisher. The particulars of the contravention were: (i) A failure to ensure that adequate containment measures were in place prior to work being conducted on the Auburn Central construction site so as to avoid the risk of objects or materials falling on to persons in public and lower level work areas;. (ii) A failure to ensure a safe system of work for dismantling formwork at the Auburn Central construction site in that employees were engaged in drop-stripping at the premises; and (iii) A failure to provide adequate supervision of employees so as to prevent employees from engaging in drop-stripping of formwork.

Mr Saliba's offences under the same sections by operation of s 26(1) of the Act were drawn and particularised in the same way. 5 In relation to Holdmark, the Amended Application for Order alleged a contravention of s 8(2) of the Act in that on 23 March 2004 being an employer Holdmark failed to ensure that persons were not exposed to risk to their health and safety arising from the conduct of its undertaking while at its place of work, in that it failed to take adequate measures to prevent materials from falling from the Auburn Central construction site on to Vales Lane and to prevent the risk of injury to persons on Vales Lane created by the fall of a piece of formply board and a piece of timber on to Vales Lane between approximately 8.00 am and 9.00 am. The persons not in the defendants' employment who were at the defendants' place of work at the time were persons on Vales Lane and in particular Kevin David Fisher. The particulars of Holdmark's contravention were the same as those supplied in Quality Formworks s 8(2) breach proceedings. 6 In the sentence hearing, by consent of the parties, the evidence in each separate matter was accepted as evidence in all matters. In relation to the offences concerning Quality Formworks and Mr Saliba, the prosecutor tendered the following: an Agreed Statement of Facts; photographs taken by Inspector Cooper and additional photographs taken by Mr Dalzell a safety consultant working at the site; additional black and white photographs with captions; a site drawing; two factual inspection reports prepared by Inspector Cooper; the Code of Practice for formwork; two improvement notices; Holdmark Developers Deficiency/Corrective Action Reports issued to Quality Formworks, being a document of some 14 pages; a Holdmark Developers Deficiency/Corrective Action Report issued to REI Formwork; and, a prior convictions report for both defendants indicating that they had no prior convictions. 7 In relation to the proceedings concerning Holdmark, the prosecutor tendered the following documents: an Amended Application for Order, an Agreed Statement of Facts, a Holdmark Site Safety Inspection form; a Holdmark roles and Responsibilities document; a record of toolbox meetings and a safety rectification notice; a statement of Inspector Cooper dated 23 March 2004; photographs taken by Mr Dalzell in March 2004; a scaffolding handover certificate; a Holdmark accident/dangerous incident investigation report; a number of improvement notices directed to Holdmark; a company search regarding Holdmark; a New South Wales police report; a facsimile from Holdmark to WorkCover dated May 2005; Holdmark record of toolbox meetings; a site safety management plan; a Holdmark memorandum dated 4 July 2004; a Holdmark memorandum dated 24 March 2004; an Auburn retail and commercial and residential development programme 2002-2005; and a prior convictions report indicating that Holdmark had one prior conviction for breach of s 16(1) of the 1983 Act in which the Chief Industrial Magistrate imposed a penalty of $13,000.

The Agreed Statement of Facts in each matter appear as an annexure to this judgment. 8 Continuing differences between Holdmark and the prosecutor led to a number of witnesses being called to give oral evidence. Inspector Cooper gave evidence about attending the construction site, making observations at the site and completing two factual reports. He took a number of photographs stating that he stood about 50 metres from the edge of the laneway in Vales Lane and standing close to where there was shattered windscreen glass on the roadway when he took certain photographs of the scaffolding and wire mesh covered or partly covered by shade cloth. He gave a description of drop-stripping as being a method to speed up the process by removing some of the supports and attempting to induce a collapse of the formwork. In adopting this method, a very large area of formwork could be dismantled at the one time - the falling of the formwork could be induced by tying, pulling or throwing timber at the props to bring about the collapse. On his inspection of level 4 of the building described as "D2" he noted that formwork supports had been taken out and that timber had been used to prop the formwork and that there were sections of the formwork that had been removed: this suggested to him that drop-stripping of the formwork was taking place in this area. 9 Kevin Fisher described stopping his utility in Vales Lane on 23 March 2004, hearing a noise behind his vehicle and then experiencing a large piece of timber crashing through his windscreen and bouncing off the steering wheel of his vehicle. He described his injuries and said that the incident had dwelt on his mind for the following 12 months: he had, however, not sought counselling or medical assistance. Mr Kevin Fisher gave a statement to the WorkCover Authority saying that after he had been taken from his vehicle and had been settled down, he looked up at the building but could not see anybody there. Approximately half an hour after the accident, he looked up again and saw two people putting what he thought was chain wire on the outside of the scaffolding where the scaffolding was lower than the scaffolding adjacent to it, at a point immediately above his utility. There was no shade cloth fitted to that part of the scaffolding where he saw people working. 10 David Fisher, Kevin Fisher's father, told of driving down Vales Lane on the morning of the accident. He did not see anything fall from the building but he saw a large piece of timber fall from the sky and saw it go through the windscreen of his son's utility. He then looked up at the building but did not see the timber coming from the building. He noticed that there was a section on the scaffolding where the shade cloth was missing and that section was in the vicinity of his son's vehicle. He could not recall if there was any wire mesh in that area at the time. In a statement given to WorkCover, Mr David Fisher said that after the timber hit his son's car, he looked up at the building and noted there was green shade cloth around the perimeter of it but that there was an opening at the top of the scaffolding where there was no green shade cloth. He thought that that opening was about 12 feet in width and up to 6 feet in height with a scaffold frame erected around the outside of the building. 11 Keith Marnies was a carpenter/joiner employed as a site supervisor at the Auburn Central site at the time of the incident. He was employed by Shaya Constructions being contracted to perform work for Holdmark. At the time of the accident, Mr Marnies was in a supplier's truck in Vales Lane and heard a bang on the roof of the utility behind him. He looked up and saw another piece of timber come down and pierce the window of the utility. The piece of timber was approximately 4 x 3 and was between two and three metres long. The timber had fallen from the Auburn Central building site. He looked up and observed that there was scaffolding on the side of the site but shade cloth had not been drawn across all the scaffolding. He could not recall if there was wire mesh on all the scaffolding. The part of the scaffold where there was no shade cloth was directly above the utility involved in the incident. 12 In a witness statement given to the WorkCover Authority, Mr Marnies said that after the first piece of formply hit the utility, making a large bang, he looked up and noticed a piece of timber falling off the building and "hurtling through the air". He stated that, when he first saw that piece of timber, it was on the building itself, approximately five or eight floors up and that it fell out of the building over the scaffolding and at that time there was no wire mesh on the outside of the scaffolding. The piece of timber fell straight down and speared through the front windscreen of the utility. Further, Mr Marnies said that, at the time of the accident, there was no safety mesh around the scaffolding but external scaffold had been erected. The area in which there was no mesh in place was approximately five to ten metres away from the entrance in Vales Lane or, more precisely, the entrance to the arcade of the site and was between five and eight floors in height. On being shown photographs of the scaffolding, Mr Marnies said that there was an area at the top of the scaffolding where, at the time of the accident, there was no green mesh or safety wire on the scaffolding which was approximately above the area where the accident had occurred. In cross-examination, Mr Marnies said, by reference to photographs of the site, that the second piece of wood came from the area where there was no cloth on the scaffolding and that the wood had come from in between the scaffolding bars. 13 Michael Dalzell was a safety consultant employed on the Auburn Central site at the time of the incident, having spent 25 years in the construction industry. He and Roger Kazzi were both engaged on the site full-time in providing safety management systems. On the day of the incident, he was aware that Quality Formworks was performing work on the site. He was familiar with the method known as "drop-stripping", describing it as the removal of support and throwing things at the temporary support until the formwork collapsed. He was aware that process was prohibited on construction sites by the building code but had seen it performed on all sites on which he had worked. He saw that approach adopted twice at the Auburn Central site and drew it to the attention of several people, including Mr Kazzi and Mr John Nassif. A toolbox meeting was held with all formworkers on site with two WorkCover officials in attendance to explain the gravity of the situation if they continued to adopt that system. That meeting took place before the incident in Vales Lane on 23 March 2004. Mr Dalzell had observed Quality Formworks drop-stripping and had spoken to somebody from that company about the drop-stripping - he believed that was Mr Saliba. He warned Mr Saliba not to continue drop-stripping because it was against the law. He thought that warning had been in writing but he had spoken to Mr Saliba about the matter. Drop-stripping was becoming a serious issue once it was recognised that the practice was occurring on site. Mr Dalzell was not aware of who was responsible for the supervision of the different buildings on the project: he was not aware which foremen were in charge of which areas or which sub-contracts. There was an allocation of particular areas within the site but Mr Dalzell did not know the details of that allocation. 14 The Auburn Central site was described by Mr Dalzell as a "very large" site and on the day of the incident employed several hundred people. In relation to drop-stripping, Mr Dalzell said that the reason it was outlawed was that it could not be controlled. When drop-stripping was performed, the material just fell away wherever it wished to fall. On other jobs, he had seen material penetrate mesh and that, when falling, the material could go in all directions. 15 By reference to photographs, Mr Dalzell identified the place from which the timber fell as being the scaffolding directly above where the utility was parked. He said that, after the incident, he thought workers were extending the scaffolding equipment further along the face of the building which involved extending the mesh and the scaffolding itself. He was not sure but he did not think that the particular bay above the utility had mesh to that level. He formed the view that Quality Formworks were drop-stripping on the day. He did not believe he had authority to give any directions when he gave warnings to contractors or sub-contractors: he would only bring it to the attention of Mr Kazzi and keep a record in the notice book. He could not take any action himself in relation to a warning he had given. 16 In cross-examination, Mr Dalzell accepted that, prior to the incident, he had not issued any written notices to Quality Formworks in relation to drop-stripping. He was unsure of the identity of the people and for whom they were working: he had been mainly been concerned about drop-stripping being performed by a company called "REI Formworks" which appeared to be working more dangerously and it was given a written notice about ceasing to drop-strip. There had been a meeting with Quality Formworks concerning drop-stripping. Warning them against the practice which occurred prior to the incident on 23 March 2004. Mr Dalzell said that usually the shade cloth was fixed to wire meshing and, if stripping was being undertaken in the proper way, items would not escape from the building and fall to the ground. The problem with drop-stripping was that there was something of an explosion of items outwards when the formwork dropped. He agreed that, if stripping had been performed in a proper way, there was no possibility of anything falling on Mr Fisher's vehicle. 17 Roger Kazzi was a safety officer employed by Holdmark at the Auburn Central site project. He had been employed on that site as a safety officer for approximately 18 months at the date of the incident. He confirmed that a number of scaffolding companies were engaged on the site and that Quality Formworks was one such company. He was aware of the companies' practice of "drop-stripping" on the site including Quality Formworks and although he had not observed them using that practice, he spoke to Quality Formworks once or twice before the incident about adopting the drop-stripping practice and told them they would be removed from the site if the practice continued. He did not see Quality Formwork use that practice again after issuing the warnings nor was he told the practice was continuing. 18 On the morning of the incident, he was elsewhere on the site and did not witness the timber falling. He was not aware of Quality Formworks performing drop-stripping that day but he presumed that they had been involved in the practice. After the incident, a further notice was issued to the sub-contractors warning against the practice of drop-stripping; that notice was also sent to Quality Formworks. It was his recollection that Quality Formworks probably continued working on the site after the incident and were not removed from the site. In cross-examination, Mr Kazzi agreed that there were a number of formwork companies working on the site, not all involved in drop-stripping, but there were others besides Quality Formworks involved in that practice. There was a meeting with WorkCover inspectors and scaffolders at which a warning was given against using the practice. Mr Kazzi thought that there had been a written warning given to Quality Formworks before the incident warning against adopting the practice of drop-stripping. At the time of the incident Holdmark had persons available to supervise the work of sub-contractors being allocated to look after a particular group or groups of sub-contractors. At the time of this incident, Mr Kazzi was not aware who had the task of keeping a supervisory eye on Quality Formworks. On the day of the incident, he did not actually see anyone from Quality Formworks drop-stripping but he formed the view that had occurred. He accepted that, after the incident while Quality Formworks continued to work, it had probably finished up its work and eventually moved off site. 19 Bashar Maarabani was employed by Holdmark on 23 March 2004 and worked on the Auburn Central project as a site supervisor. On that day, he had been working in that capacity for approximately two years and was also a senior site foreman. Part of his role and responsibilities included managing contractors. He considered the project to be a large construction site and on any particular day there would be between 50 and 80 people working on the site. There were five blocks of the building under construction. 20 The incident took place outside block D and, although Mr Maarabani was the general foreman, the supervisor for that block on that day would have been "floating around" the trades, and there could have been a few supervisors looking after formworking and bricklaying. There was one foreman employed for each trade. 21 Prior to the incident, Mr Maarabani had witnessed Quality Formworks engage in drop-stripping and had issued an instruction that they were to cease that practice - that was a verbal instruction. He was not able to recall the number of occasions, but thought that this had occurred once or twice. After those warnings there was a mass meeting at which the formworkers were advised that anybody caught drop-stripping would be immediately dismissed from the site. The safety committee also put up signs at the site stating that anybody caught would be dismissed immediately. This meeting was held prior to the incident and a similar meeting was held after the incident. Mr Maarabani said he was aware that Quality Formworks was drop-stripping at the time of the incident. When asked why they were not removed from the site, he said that after the initial warnings there had been no further occurrence of the practice until the incident. 22 In cross-examination, Mr Maarabani said that on the day of the incident about 300 squares were being stripped of formwork and that it was possible to remove a large part of that area at one time by drop-stripping. It was not unusual to drop-strip in smaller areas and reduce the task to two or three sections. After the incident, Quality Formworks remained on the site but only to finish up its work. The site continued for another one or two years after the incident. 23 On the day of the incident, Louis Esho was employed by Quality Formworks as a labourer at the Auburn Central site. His work involved cleaning up and providing material for the formworkers but he was not involved in the actual task of erecting or dismantling the formwork. By reference to photographs in evidence, Mr Esho described the work he was performing at building D and said that he was working on the bottom level, that others from Quality Formworks were working above him at the same time, cleaning up and doing that type of work. He said there were persons from Quality Formworks stripping formwork on the level above which sounded like timber and plywood were falling and that sounded like drop-stripping, or they have could have been be lowering the timber from the side for it to fall but bringing it down safely bit by bit. He was not on that level and he did not see what was happening. 24 Mr Esho was aware of the timber falling off the building and falling to the road when he heard yelling. He noticed that there was a section on the higher level of the scaffolding where there was no mesh around the scaffold, meaning an absence of green shade cloth. There was scaffolding and, in part, it had wire mesh and green shade cloth covering it. There was scaffolding and the wire fence but no green mesh. He returned to where the timber had apparently fallen through and had placed plywood around it which was at an angle between the slab and the scaffolding at the edge. In cross-examination, Mr Esho said that there were a number of formwork companies working on the site in the same area in which he was working. He confirmed that he was aware that drop-stripping was taking place because of the noise and the sound of the timber and plywood falling. He was not aware of who was carrying out that drop-stripping but he could hear it. 25 For the defendant Holdmark no evidence was called. In the case of Quality Formworks and Mr Saliba, Mr Saliba provided an affidavit, gave oral evidence and was cross-examined, particularly in relation to his financial circumstances. 26 Mr Saliba was almost 58 years of age, was married and had six children ranging in age from 15 years to 23 years. He said three of the children were still dependent. He described how he had arrived from Lebanon in 1969, had returned to Lebanon and again came to Australia in 1983. He had been employed in a variety of businesses working as a labourer and working in factories in manufacturing work. He had also worked as a taxi driver but from 1986, he started working in the building industry. From 1986 to 1997 he worked for T & T Formwork as a formworker and carpenter and learned the job, having no formal qualifications. The jobs that he worked on with T & T Formwork varied from three storeys to high-rise buildings. In 1997, he set up his own formwork business in partnership with a nephew. This work involved three storey buildings, high rise development and commercial development involving 50 to 60 units and the construction of up to 80 units. That partnership dissolved in 2002 and Mr Saliba started his own company, Quality Formworks. He was the sole director of the company and traded on his own, with the company carrying out eight or nine large jobs since its commencement with some jobs having in excess of 100 units. The company had been involved in developments of up to 23 storeys as well as smaller jobs. He stated that the company had never had any claims made against it nor had any claims been made against him personally. There were no workers compensation claims, personal injuries claims or prosecutions and he had always maintained the required insurances for the business. 27 Quality Formworks had been engaged on the site originally as a sub-contractor to another formwork company but, when that company left the site, Quality Formworks took over and was paid directly by the developer Holdmark but without a contract. 28 Mr Saliba then described the difficulties he experienced in being paid and in having a dispute with the developer, leading to the company having tax and GST liabilities unpaid with thousand of dollars being incurred in interest and penalties. Mr Saliba said that the majority of money from the developer, when it was paid, was used to pay taxation and GST arrears, wages and the cost of running the project. The company had lost hundreds of thousands of dollars worth of formwork and materials on the job. 29 At the time of giving evidence, Mr Saliba said he was not working, that there had been little work for the company and so he had decided to shut it down. The company remained registered as the result of a tax debt in excess of $90,000. Mr Saliba said that he last worked two and a half to three years ago and, although he had continued to quote for jobs, he was not willing to work at a rate where there would be no return. Recently, he had sold the family home in Merrylands as he was unable to meet the mortgage repayments. The house was sold for $586,000 but, after payment of the mortgage, agent's commissions and other fees, he and his wife were left with approximately $27,000 - that money was used to pay other debts and living expenses incurred by the family. Mr Saliba said he had numerous debts both personal and business that had accrued over the last few years. He stated that he owed in excess of $200,000 to friends and family that had assisted him with paying the debts. 30 There was a development at The Entrance in which he was involved with four partners. The development involved the building and sale of 41 residential units. He described himself as the second largest shareholder in the development with all his savings and money being directed into that venture. While the building of the units was completed, because of a drop in the real estate market, the sale of the units had stalled. Proceeds from the units sold had been used to pay back the development and construction loan on the property and only three or four units had been sold in the last 18 months. He tried to obtain Centrelink benefits but, because of The Entrance investment did not qualify for those benefits. This was so, even though he had no access to money and was unable to obtain any income from the development. He was of the view that eventually the bank would take control of the property under the mortgage arrangements. Apart from his financial circumstances, as a result of financial stress, he found his health was deteriorating and he was also a diabetic. 31 In relation to the incident, Mr Saliba stated that at the time that the drop-stripping was undertaken by employees of Quality Formworks he was not present on the site. He accepted full responsibility for the lack of supervision at the time and stated that when he returned to the site he had no option but to allow the drop-stripping to continue as the areas where his employees were working had become too unstable to reverse the work that had been commenced. He further accepted that, if he had been present on the site, the incident would not have occurred and that he would not have allowed his relatively inexperienced team to adopt the drop-stripping procedure. 32 In relation to his present living circumstances, his sons worked and gave money to the family so that they could live and pay the rent on the house of $400 per week. In relation to the financial documents concerning Quality Formworks, the tax returns and balance sheets were with the accountant. Mr Saliba had tried to obtain copies but the accountant would not give him copies because Mr Saliba owed him $10,000. He said that he had a present bank overdraft of $15,000 but had no money in any bank account. 33 In cross-examination, Mr Saliba said that the units at The Entrance had originally been priced between $500,000 and $600,000 but were now being offered for $280,000 to $300,000. Of the 41 units only 12 had people living in them and the remainder were not occupied and had not been offered for rent. He had personally invested over $900,000 in the project and had borrowed $540,000 from the bank. The cost of the development was approximately $11.5 million and he owed the bank $520,000. He owned seven or eight of the units but the company debt on the units with the bank was $7 million for the development company. He had been unable to obtain work and his wife did not work. All the family lived with him and his sons were paying the rent and giving him money to live on. DELIBERATION 34 In relation to the offences committed by Quality Formworks and Mr Saliba, it was common ground that they were first offences and, in the case of the corporation, attracted a maximum penalty of $550,000 and, in the case of Mr Saliba, attracted a maximum penalty of $55,000. In relation to both defendants, the prosecutor submitted that this was a serious offence. The evidence showed that the adoption of drop-stripping meant that there was no control of the material falling and that, literally, it could explode in all directions. It was for that reason that it was prohibited by the Code of Practice. This large piece of timber had been projected from the Auburn Central building site and was capable of inflicting very serious injury on people using Vales Lane. The inherent dangerousness of drop-stripping meant that the risks associated with that practice were clearly foreseeable. The evidence supported a finding that this piece of timber went through the wire mesh, or a gap in it. Mr Saliba, as the principal of Quality Formworks, was aware of the prohibition against drop-stripping and had been warned by Holdmark against using that practice on the site before this incident. Despite those circumstances, he left his workers in the hands of his young and inexperienced sons on the day of the incident when that prohibited practice was adopted. 35 General deterrence required significant recognition in the penalty to be set having regard to the fact that this was a breach of a code and the evidence of the continuing practice of contractors to adopt the drop-stripping method of removal of formwork. In relation to specific deterrence, it was accepted that Mr Saliba was in financial difficulties and, although the business had not operated for a number of years, the evidence was that he was still seeking contracts although being unable to obtain any work. There was no evidence of Mr Saliba and Quality Formworks introducing training or addressing the use of this prohibited practice after the incident: the evidence supported a finding that verbal warnings at least had been given to Quality Formwork prior to the accident. 36 The prosecutor accepted without reservation that the principle of totality applied to the offences of the corporation and Mr Saliba as the director of the corporation. The risks particularised were essentially the same for the s 8(1) offence as for the s 8(2) offence. 37 In relation to subjective factors, apart from the prior good record of the company and Mr Saliba, there were early pleas of guilty and there was co-operation with the investigation conducted by the WorkCover Authority. While it was conceded that both the company and Mr Sabila were experiencing financial difficulties the prosecutor submitted there was a marked lack of detailed information before the Court so that it was very difficult to give the defendants the benefit of the discretion available under s 6 of the Fines Act 1996 38 In submissions for Quality Formworks and Mr Saliba, the seriousness of the offence was accepted - that fact was clearly in mind when the defendants entered their pleas of guilty on the first return of the summons before the Court. The defendants accepted that it was Mr Saliba's lack of supervision that was the central element in this offence. If he had been present, he would have prevented the accident. Mr Saliba was aware of the dangers and the foreseeable risks of adopting the drop-stripping practice which was not a practice he encouraged, but he had a number of new employees and they had taken their own course while he was absent. It was said to be important to note that there was no written warning prior to the accident and had there been a real problem with Quality Formworks engaging in this practice, the systems adopted by Holdmark would have resulted in a written warning notice being issued. 39 In relation to subjective factors, there was an early plea and there were no prior convictions. The company had been in operation since 2002 but now had no employees and no work. Mr Saliba's evidence supported a finding that there was little chance of either the company or Mr Saliba re-offending. In relation to the defendants' capacity to pay the fine, this was a one-man business and there were no assets of the company or Mr Saliba personally available to pay the fine. The Court was requested to take into account that any penalty against the company would be a penalty ultimately borne by Mr Saliba. 40 The prosecutor submitted that the offence committed by Holdmark under s 8(2) centred on the failure of the company to properly supervise the works and to prevent the adoption of drop-stripping by the contractors and sub-contractors. A previous warning against this practice had been delivered to Quality Formworks but, contrary to the policy of Holdmark, Quality Formworks was not removed from the site. The evidence was that the safety officer, in issuing these warnings, had no authority to do anything else but deliver the warning and make a note of it. 41 By its plea, Holdmark had accepted the particulars of the charge as amended. There was some considerable delay in reaching an Agreed Statement of Facts which centred particularly upon the extent to which there was mesh and shade cloth erected on the building where Quality Formworks was removing the formwork. It was accepted that it was not clear on the evidence where the timber came from: it was on level 4 and either went through or over the scaffolding. There was evidence that, when drop-stripping was adopted, the formwork could explode and was not able to be controlled. Drop-stripping had been observed at this part of the site before the incident. 42 In this case, there was a prior conviction and Holdmark faced a maximum fine of $825,000. There was no evidence called by Holdmark and so there was nothing before the Court as to what steps had been taken to address the deficiencies in its system. It was to be noted that the evidence showed that the supervisors could not identify the relevant workforce although they were allocated to supervise particular trades. The Court had no indication as to what steps were taken by the defendant since the accident to address its safety system generally or particularly arising from this accident. There was, however, co-operation with the investigation by the WorkCover Authority and, although the defendant had initially entered a not guilty plea, it had ultimately altered that plea in response to an Amended Application for Order that reduced the number of particulars of the offence. If the case had gone to full hearing there would be in the order of 22 witnesses required and a hearing of at least five days. 43 For Holdmark, it was readily conceded that there could have been most severe consequences as a result of this large piece of timber falling from the building site. Holdmark's failure was the lack of adequate supervision of the work being performed by Quality Formworks. Quality Formworks had performed drop-stripping previously and had been warned not to continue that practice. In acting that way, the defendant had demonstrated the correct attitude towards safety and there had also been a meeting before the accident with the WorkCover inspectors present when all formworkers were told not to perform drop-stripping and that if they did so, they would be removed from the site. It was important to realise that nothing had happened between that meeting until the incident requiring removal of a formwork company. In addition, there had been a written warning given to another formwork contractor banning the practice of drop-stripping but there was no such written warning in relation to Quality Formworks. The inference to be drawn was that Quality Formworks was not an habitual offender or not as significant an offender as, for example, REI Formworks and therefore the level of supervision would not need to be so high in relation to its work. Quality Formworks was not a serial offender requiring a necessarily high level of supervision. 44 Contrary to the submissions for the prosecutor that there was some ambiguity about how and where the large piece of wood came from when it fell from the building site, it was submitted that the timber fell at approximately the place where Inspector Cooper had found the broken windscreen glass on the roadway in Vales Lane. It was known that Quality Formworks were performing its drop-stripping on building D2. It was also clear from the evidence that the wood came over a significant distance, approximately 10 metres on the D1 side of the building. That suggested that Mr Marnies' evidence was correct, namely, that the wood came over the scaffolding that had no wire mesh at all and which formed part of building D1. That position was at least 10 metres from where the drop-stripping occurred. The significance of those matters was that it was not possible to foresee (or it was in the low range of foreseeability) that dropping formwork would splinter and travel such a distance so that it was not caught by the wire mesh and shade cloth in the immediate vicinity of the drop-stripping work. Put simply, it was much harder to anticipate that event would occur. The evidence of Mr Dalzell was that in the course of drop-stripping, construction material might fly for several feet - there was no evidence that it would fly for ten metres or more. These factors reflected on the degree of culpability of Holdmark and the seriousness of its offence. 45 Another factor to be considered was that Mr Saliba was well experienced in the formwork process and knew that the practice of drop-stripping was prohibited and had been warned against using that practice on the site. He had not been left to his own devices on the site but he had been given specific directions as to what was expected by Holdmark. 46 In summary, each of the defendants accepted the seriousness of the breach and the seriousness of the risk to safety arising from the circumstances in which this large piece of wood was propelled off the building site and fell into the laneway adjoining the site. It was fortunate that Mr Fisher suffered only slight injuries but those injuries do not determine the seriousness of the breach: here, the risk was at the highest level and in other circumstances might have led to substantial permanent injury or even a fatality. 47 In relation to Quality Formworks and Mr Saliba, both defendants were well aware that under the relevant Code drop-stripping was prohibited and that it was inherently dangerous. The defendants had received at least one warning (and possibly more) from the builder prior to the accident but it appears that drop-stripping was a practice adopted by a number of the formworking companies on the site. It was a serious enough problem for the builder, Holdmark, to convene a meeting of contractors with the assistance of WorkCover inspectors to emphasise the dangers associated with such a practice and why it was prohibited on the site. Mr Saliba said that if he had been present on the site then drop-stripping would not have occurred but he says nothing about the earlier oral warning given to his company and the circumstances in which that act of drop-stripping occurred. The evidence goes close to but does not permit a conclusion to be reached that the defendants were repeat offenders in relation to drop-stripping and the defendants' prior record suggests that it was unlikely to be the normal or usual practice of the defendants. Why it had occurred before on this site and why it occurred on the day of the incident involving Mr Fisher is simply not explained by the evidence. 48 I accept the prosecutor's submission that general deterrence should play a significant role in the setting of an appropriate penalty in relation to these defendants. In relation to specific deterrence, the evidence suggests that the company and Mr Saliba are unlikely to work again in this industry, although Mr Saliba speaks about quoting for jobs (although unable to successfully tender for any job). The fact that he has not worked for nearly three years suggests that the likelihood of working in the industry in this capacity is relatively low. In those circumstances, specific deterrence will form a relatively small part of the penalty imposed on these defendants. 49 In relation to subjective factors, I accept that there was an early plea and both defendants are entitled to a discount of 25 per cent in recognition of that fact. The early plea was also evidence of the defendants' contrition. The defendants have no prior convictions and, although Quality Formworks is a relatively recent business, Mr Saliba has worked in the building and construction industry for a considerable time without coming to notice. Both defendants are entitled to receive consideration for their good industrial record and their co-operation with the WorkCover Authority. 50 The prosecutor properly conceded that the principle of totality had a significant role to play in recognition of the fact that the s 8(1) and s 8(2) breaches relate to the same incident and were in substance particularised in the same terms. Having regard to the seriousness of the breach and the discounts for subjective factors, Quality Formworks should be fined $83,500 for each offence and Mr Saliba should be fined $8,000 for each offence. Upon the application of the totality principle, the total criminality of the offences committed by Quality Formworks is met by a fine of $83,500 and that sum should be equally divided between the two offences. Similarly, in relation to Mr Saliba the total criminality of his offences is met by a fine of $8,000 and that sum should be equally divided between the two offences. 51 A difficult issue then arises as to the application of s 6 of the Fines Act. In McColl v John Watson Building Services Pty Ltd and anor (2004) 137 IR 310 a Full Bench noted that the Court was obliged to take into account the means of a defendant to pay a penalty and that the imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. Importantly, it was said that, where a defendant wished to rely on the provisions of the Fines Act to temper the amount of monetary penalty, that defendant bears the onus of putting such evidence in support of the application as is appropriate and also bears the onus on the balance of probabilities of satisfying the Court as to the truth of such evidence and its relevance to the fixing of a penalty. A corporate defendant is to fully disclose its financial state. In that case, the Court noted that there was no evidence by way of profit and loss statements and no balance sheets provided to the Court so as to satisfy the Court in relation to the current assets and liabilities of the company and to allow an assessment of the impact that a monetary penalty might have on the company's activities and viability. There was no evidence as to whether profit from prior years' activities had been accumulated. A failure to put material of that detail would result in circumstances where the appropriate application of s 6 of the Fines Act could not be undertaken and must fail. 52 The circumstances of this case, however, are different. The prosecutor accepted that the financial circumstances of the defendants are poor. Mr Saliba had not worked for nearly three years and the company had a sizeable taxation debt. Mr Saliba had recently been forced to sell the family home and was unemployed, with rent being paid by his sons who worked a few days a week in the building and construction industry. Mr Saliba was unable to obtain social services because of his involvement in a development project at The Entrance and a downturn in the property market had severely reduced the value of that investment and the vast majority of the units had not been sold. Mr Saliba gave evidence that he owed his accountant $10,000 and that the records of the company and his own personal financial records were refused to him by his accountant and thus he was in no position to present them to the Court. A summons for production had not been issued to Mr Saliba's accountant and no explanation given for not taking that step. While Mr Saliba was cross-examined as to these matters and no suggestion or submission made that he was other than truthful in the answers he gave on his oath, the prosecutor nevertheless submitted that the financial evidence was not sufficient to warrant the exercise of the discretion under s 6 of the Fines Act and that this case was governed by the approach of the Full Bench in McColl. 53 The financial circumstances of the defendants raise a very difficult issue: here the evidence establishes that the company, with Mr Saliba as the sole director, was the means by which he undertook employment and undoubtedly this approach was taken because there was some taxation benefit in conducting his business in that way. It is, nevertheless, a one person business.

Mr Saliba's English was not of a high standard and it was, at times, difficult to understand his oral evidence. He gave evidence of the sale of his home because of his inability to meet mortgage payments but it was not totally clear that this money was used to discharge the mortgage on his home, leaving him only $27,000 after all obligations and expenses were met. He had invested approximately $900,000 in the The Entrance project but appeared to be in debt for $520,000 in relation to that project. It was unclear to what extent he was liable for the development loan of $7 million. There was no valuation attempted of the units owned by Mr Saliba and it was even unclear as to how many units he owned. He said he was the largest shareholder in the 41 unit project but that he owned 7 or 8 of the units and did not explain why he could not state precisely how many units he owned or were attributed to him under the development arrangements. While this level of confusion clouds a full appreciation of Mr Saliba's financial position, the Court is in little doubt that at the present moment he is effectively impecunious and surviving only through the support of his children. 54 While s 6 of the Fines Act requires the Court, in the exercise of its discretion to fix an amount of any fine, to consider such information regarding the means of the accused as is "reasonably and practicably available to the Court for consideration" significant difficulty may arise in determining how that information may properly reduce the amount of the penalty. In Friends of Hinchinbrook Society v Minister for Environment (No 3) (1997) 77 FCR 153 (at 188), Hill J stated: There is always a difficulty when a statute provides that a decision-maker shall 'have regard to' a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and 'take them into account and give weight to them': cf R v Hunt; ex-parte Lean Investments Pty Ltd (1979) 25 ALR 497 at 504 per Mason J, it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: cf Windeyer J in Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 384. Sometimes the statute will, as was the case in Giris, direct regard be had to an indeterminate category of such other matters as the decision-maker may regard as relevant. 55 The New South Wales Court of Criminal Appeal in R v Rahme (1989) 43 A Crim R, per Finlay J (with the concurrence of Studdert J) stated at 86: The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution for its non-payment.

This line of authority was considered by Marks J in WorkCover Authority of New South Wales (Inspector Robinson) v Milltech Pty Ltd (2003) 128 IR 234. At [29], his Honour stated: Some guidance of the appropriate in-principle approach can be gained from the decision of the Court of Criminal Appeal, Western Australia in Sgroi v The Queen (1989) 40 A Crim R 1987. In the course of a judgment with which Rowland J agreed Malcolm CJ said (at 200-201): The purpose of a fine is primarily to punish the offender. Consequently the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that the payment will impose. ... The question whether the amount of the fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine consideration of the offender's financial means of capacity are relevant in determining the amount of the fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate, the objective of general deterrence. 56 More recently, the New South Wales Court of Criminal Appeal in Retsos v Regina [2006] NSW CCA 85 dealt with the application of s 6 of the Fines Act in circumstances where terms of imprisonment together with total fines of $80,000 were imposed in relation to aiding and abetting corrupt solicitation of a pecuniary benefit and breaches of the Independent Commission against Corruption Act 1988. The evidence in the District Court was that the offender was an undischarged bankrupt but reliance had been placed upon a statement in a probation report that simply stated that the defendant had a capacity to pay a fine. Sully J, speaking for the Court, in addressing this aspect of the appeal and quashing the fines, stated: [14] It is clear from his Honour's interchanges with Mr Browne that his Honour was relying 'on the responsible evidence of the probation officer'. If that statement conveys, as it seems to me plainly to do, that his Honour took one terse and wholly unparticularised line in the pre-sentence report as justifying without more a conclusion that the applicant had a capacity, or even a potential capacity, to pay fines totalling $80,000, then in my respectful opinion his Honour has wholly failed to apply his mind in a reasoned and reasonable way to the mandatory requirements of s 6 of the Fines Act. [15] I can see, for my own part, no credible evidence that this is remotely capable of establishing such a capacity to pay. In my opinion the fines cannot be properly supported, and I would, therefore, uphold ground 1. 57 In this Court, and in its predecessors, it has been frequently stated that a fine is not to be oppressive or crushing in its effect but at the same time the exercise of the discretion under s 6 of the Fines Act must result in a penalty that ultimately reflects the objective seriousness of the offence (see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435). There will, of course, be exceptional cases such as in Retsos where the status of the defendant as an undischarged bankrupt will be critical although in that case the $80,000 fine was only part of the penalty, with periods of imprisonment and periodic detention also being imposed. 58 Consideration of the factors referred to above leads to the conclusion that Quality Formworks has no capacity to pay the fine, having no assets and an outstanding taxation bill of $90,000. The position with Mr Saliba is that he has no present capacity to pay a fine and any capacity he has to pay the fine may depend wholly upon any surplus resulting from the sale of the properties constituted by The Entrance project. The financial information about that project is sufficiently unclear to leave some, although remote, possibility that funds may eventually become available although there might be prior calls on such a prospective surplus. That difficult set of circumstances leads the Court to the position of reducing the fine, particularly in relation to Mr Saliba and leaving him to his rights to seek to make appropriate arrangements for time to pay the fine. The position of Quality Formworks is that Mr Saliba has said that he would close down the company but has been prevented from doing so because of an outstanding taxation bill of $90,000. Mr Saliba and the company appear not to have obtained work in the last two and a half years to three years and the company is unlikely to operate again. This is not a situation, therefore, where the livelihood of employees or an important part of a community is placed under threat because of the prospect of a defendant closing its business because of its liability to pay a fine for a breach of the Occupational Health and Safety Act. While questions might arise as to how the prosecutor will recover the fine, there seems little point in significantly reducing the fine to be imposed on Quality Formworks where it has other sizeable debts and is unlikely to operate again: approaching the fine in this way reflects the objective seriousness of the offence and may have the benefit of operating as a general deterrent. The defendant, Quality Formworks, reflecting this approach, should be fined a total of $75,000 with that sum being divided equally between the two offences. The personal circumstances of Mr Saliba, however, warrant a reduction of 50 per cent in the fines to be imposed upon him: the total fine of $8,000 will be reduced to $4,000 and then will be divided equally between the two offences.

59 In relation to Holdmark, there was one breach under s 8(2) of the Act. The defendant accepted the seriousness of the breach but called no evidence in elaboration of its systems of work, the steps taken to address the risk exposed by this incident nor the steps taken to enforce the prohibition on drop-stripping at the site. I am unable to accept the submission that the foreseeability of the risk was somehow reduced because the drop-stripping was taking place at such a distance from the alleged gap in the wire meshing and scaffolding as to make it less foreseeable that drop-stripping would have the consequences that occurred on this occasion. Apart from the lack of clear evidence as to the approximate distances involved, this submission was basically theoretical and was not the subject of any evidence called by the defendant. For this contention to be relevant or of significance, evidence would have to be called to establish that either the drop-stripping had been seen, or seen at a stage when it was too late to reverse the process, and an assessment made that it was too far from any gap in the wire screening to be likely to result in the fall of any construction material on to the laneway below. It can be seen that, if such evidence were given, it would be highly unlikely to have assisted the defendant's case. 60 This submission for Holdmark overlooks at least the following significant matters: · the evidence in each matter, by consent, was evidence in all matters; · the evidence was that the scaffolding had been erected the day before the incident and the wire meshing and shade cloth covering were taking place at the time that Quality Formworks were permitted to commence stripping the formwork, and before the overhead protective structures required by the Regulation had been completed; · that at the time of the incident there was a gap without wire mesh and shade cloth covering immediately above where Mr Fisher's stationary utility was located in the laneway; · that Mr Lee Moore was working on building D1, adjoining building D2 where Quality Formworks were working, and had asked them to stop drop-stripping the formwork because he had "scaffolders in the area" who were erecting the wire mesh and shade cloth. When Mr Saliba said that he could not stop the stripping, Mr Moore instructed his scaffolders to cease work and move away; · Mr Moore noticed formwork protruding out past the corner of the building - he saw workers throwing a bearer at the base jack to cause the formwork to fall; · Mr Marnies had seen the timber falling from an area where no such mesh was present; · Holdmark carried out and supervised the construction project and had engaged a site manager, a senior site foreman, a site safety officer, a site occupational health and safety officer and numerous site foremen to carryout out the role of supervisors; · the evidence supports a finding that Holdmark did not know that drop-stripping was taking place that day in circumstances where the wire meshing work was incomplete - that failure to properly supervise the work in the area was the essence of the charge to which it ultimately pleaded guilty. 61 This is a case where both general and specific deterrence should form a significant part of the penalty. It was accepted by the prosecutor that a guilty plea had been entered after an Amended Application for Summons had been filed in Court but that, prior to that occurrence, a not guilty plea had been entered and a five day hearing set down. The prosecutor accepted that the hearing would involve evidence from a large number of witnesses and thus there was utilitarian value in the plea. The Amended Application for Order omitted one particular and, in the circumstances, it would be appropriate for a 25 per cent discount to be granted. There was co-operation with the WorkCover Authority. The defendant's prior conviction involved a fine of $13,000 imposed by the Chief Industrial Magistrate in quite different circumstances that do not call for a heavier penalty to be imposed. Lastly, while there is not a great deal of difference in the culpability of the corporate defendants, the issue of specific deterrence and the operation of section 6 of the Fines Act leads to different penalties being imposed. Holdmark had an abundance of supervising staff to monitor the workforce and ensure that drop-stripping was not undertaken and, particularly, not undertaken when the overhead protection in the area had not been completed. Having regard to all the matters referred to above, the appropriate fine to be imposed on Holdmark under s 8(2) of the Act is $95,000. ORDERS 62 In relation to Quality Formworks s 8(1) offence: (i) The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 1641 of 2006 to which it has entered a plea of guilty. (ii) The defendant is fined the sum of $37,500 with half that sum to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

In relation to Quality Formworks s 8(2) offence: (i) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 1642 of 2006­ to which it has entered a plea of guilty. (ii) The defendant is fined the sum of $37,500 with half that sum to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

In relation to Mr Saliba's s 8(2) offence: (i) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 by operation of s 26(1) as particularised in Matter No IRC 1643 of 2006 to which it has entered a plea of guilty. (ii) The defendant is fined the sum of $2,000 with half that sum to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

In relation to Mr Saliba's s 8(1) offence: (i) The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26(1) as particularised in Matter No IRC 1644 of 2006 to which it has entered a plea of guilty. (ii) The defendant is fined the sum of $2,000 with half that sum to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. In relation to Holdmarks' s 8(2) offence: (i) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 1645 of 2006 to which it has entered a plea of guilty. (ii) The defendant is fined the sum of $95,000 with half that sum to be paid to the prosecutor by way of moiety. (iii) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court.

QUALITY FORMWORKS PTY LTD and ASSAD SALIBA 1 At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 and empowered under Section 106(1)(c) of the Occupational Health and Safety Act 2000 to institute these proceedings. 2 The proceedings relate to an incident (the incident) which occurred on 23 March 2004 at and around the Auburn Central construction site at Vales Lane and Queen Street, Auburn in the State of New South Wales (the premises). 3 At all material times Holdmark Developers Pty Ltd (ACN 064 424 871) (Holdmark): 3.1 Was a duly incorporated company with its registered office located at Murchisons Services Pty Ltd, Level 2, 53 Berry Street, North Sydney NSW 2060; 3.2 Was engaged in the business of property development and construction at sites around Sydney including the premises; 3.3 Was the developer, builder and principal contractor for the Auburn Central construction site at the premises (Development) ; 3.4 Was an employer of persons including Zafer Maarabani, Project Manager for the Development; 3.5 Engaged various contractors including Quality Formworks Pty Ltd to perform work on the Development in the course of its undertaking; 3.6 Utilised the premises as a place of work. 4 At all material times Quality Formworks Pty Ltd (ACN 101 200 953) (Quality Formworks): 4.1 Was a duly incorporated company with its registered office located at 19 Denmark Street, Merrylands NSW 2160; 4.2 Was engaged in the business of providing formwork services at the premises; 4.3 Provided formwork services at the premises to Holdmark Developers Pty Ltd in the course of its undertaking; 4.4 Was an employer of persons including Assad Saliba, director; 4.5 Utilised the premises as a place of work. 5 At all material times Assad Saliba of 19 Denmark Street, Merrylands NSW 2160 was the sole director and shareholder of Quality Formworks. Incident 6 On 23 March 2004 (day of the incident), Kevin David Fisher, 23 years of age, a member of the public, was driving in his utility on Vales Lane on his way to work. As he was driving along the laneway his utility was obstructed by a truck, and he was forced to stop behind the truck. Whilst waiting, a piece of form ply board approximately 1m x 1.5m fell from the Auburn Central construction site and landed on a ladder mounted on the roof of his ute. A piece of formwork timber approximately 4.8m in length and 100mm x 75mm in dimension also fell from the Auburn Central construction site. The timber struck the windscreen of the ute puncturing the screen and striking the steering wheel column before bouncing and striking the driver's side door. Kevin Fisher sustained numerous small lacerations and abrasions to both hands and his right arm. He also suffered from the effects of a headache. Mr Fisher's father, David Fisher, who had witnessed the incident from another vehicle, assisted his son immediately following the incident. Kevin Fisher was also assisted by Holdmark's Site Safety & First Aid Officer, Roger Kazzi. 7 The form ply board and timber fell from the fourth level of building D2 where formwork stripping was being undertaken by Quality Formworks. Investigation 8 At about 10:15am on Tuesday 23rd March 2004 in company with Inspector Dubois, the Prosecutor attended Vales Lane, Auburn and made the following observations. 8.1 Vales Lane is a one-way public road that runs from South Parade through to Queen Street. The laneway provides rear access for commercial businesses on South Parade and Auburn Road. The laneway runs in a diagonal direction generally north to south. The north-eastern side of the laneway faces onto the rear of the commercial businesses whilst the south-western side forms the north-eastern boundary of Auburn Central construction site. 8.2 Approximately 40 metres along the main section of the laneway near the middle of the road there was a small pile of scattered glass fragments. 8.3 Lying in the rear yard of one of the premises on South parade near the broken glass was a length of timber. The timber had the numbers "4.8" written in black marker pen near one end. The timber was approximately 4800mm x 100mm x 75mm in size. 8.4 On the southern boundary of Vales Lane there was a large multilevel building, building D1-D3 under construction. This building is part of the Auburn Central construction project. · The building occupied the entire length of the laneway on one side. · ·There was a wire mesh fence erected along the edge of the laneway; this fence was incomplete in areas. · Near the broken glass was a driveway entry from the lane into the new building. · Above the driveway was an external concrete wall into which were fitted a number of ventilation shutters. · Above this level was an external scaffold frame. · The scaffold was erected onto I-beam supports that protruded out of the building in a cantilever fashion. · The external scaffold covered the entire horizontal length and vertical height. · The scaffold height was staggered along the length of the building. · There was steel wire mesh screen fitted to the external perimeter wall of the scaffold frame. · There was green coloured shade screen fitted over the wire mesh. This screen did not cover all of the wire and there was section on one side near the top of the scaffold where no screen was fitted. 8.5 There was a section of the scaffold in the area above the location of the broken glass that did not have any shade cloth screen fitted to it. This section was over two vertical scaffold lifts and about 1800mm in width. There was a male person carrying out work on the wire mesh in this section. 8.6 On level 3 of the building, the Prosecutor observed that there is a split at level 3 of building D where one section of the building floor construction has advanced ahead of another section. From this level the Prosecutor made some further observations. · There was a partially completed formwork deck erected on the northern side of level 3. · The formwork deck had been completed but steel fixing, service supply and concreting had not been carried out. · Persons were carrying out work on top of this deck. · The external scaffold frame in this area was fitted with wire mesh but no shade screen. · There were void areas between the external edge of the formwork deck and the internal edge of the scaffold working deck. · These void areas were approximately 300mm to 700mm. · ·The void dropped down approximately 60000-80000mm to level 1 floor level. · There was an area between two scaffold bays near where the person was seen working on the scaffold mesh that was covered by 2 pieces of form ply. The form ply was not secured to the scaffold deck. 8.7 Whilst on level 3 the Prosecutor made the following observations of level 4. · persons were carrying out work on level 4 of building D. · Concrete pouring of the floor of level 5 had been completed. Formwork soffit linings with bearers and formwork frame supports were still in position on level 4. · Diagonal bracing had been removed from a number of the formwork frame supports. · Timber props had been placed between the form ply soffit lining and the floor near the outside edge of the building where no formwork frames were in place. 8.8 Whilst inspecting building D Inspector Dubois and the Prosecutor identified a number of separate safety issues with this building. Those concerns included: · Uprotected outer edges of internal stairway access to the building from level 1 to level 3. · Stairways with no fall prevention in place. · Stairways with fall prevention that was inadequate or unsuitable i.e. Timber handrails and posts not fully secured together or to support structure. · Use of steel tie wire to secure timber together or to support structures. · Elevator shaft penetrations that were open with no fall prevention. · Elevator shaft penetrations that had inadequate or unsecured guarding i.e. Unsecured wooden pallet, unsecured form ply sheet, strips of form ply. · ·Floor penetrations that were not fully covered or secured. · Void areas between perimeter edges of building and scaffold deck. 8.9 No examination was made of the level 4 floor area as stairway access to this area was restricted by formwork support structure. 9 The Prosecutor issued a number of Improvement Notices on Holdmark and Quality Formworks dated 23 March 2004. 10 At about 3.50pm on Wednesday 31st March 2004 the Prosecutor attended M K Smash Repairs at 17 Euston Street, Rydalmere to inspect the Holden Rodeo utility that was damaged in the incident. The Prosecutor took a number of photographs of that vehicle and made the following observations: · The registration number of the vehicle was VQA761. · The vehicle was a white Holden Rodeo, single cab tabletop utility. · The vehicle was fitted with an aluminium box tray on the back. · The vehicle had carry racks fitted to the either end of the box tray. 10.1 The following damage was evident on the vehicle: · The bonnet had a number of dents. · The cab roof also had been dented. · The front laminated windscreen had been smashed and the glass was shattered. · ·A large hole had been punctured through glass. · The top of the dashboard had been damaged and scratched. · Pieces of glass were lying across the dash and throughout the interior of the cab. · The driver's side door window had been shattered. · The driver's side door trim had been smashed and a large section was missing above the door release handle. · The internal doorframe of the driver's side door had been dented and bent out of alignment. · The plastic steering wheel surround had been damaged and split open. · The steering column itself appeared to have been bent out of alignment. Background 11 Holdmark was the developer, builder and principal contractor for the development site known as 'Auburn Central'. This site is a very large commercial and residential development that covers approximately six hectares. The project consists of a number of separate towers of various sizes. The lower levels of the site are for car parking and storage, the ground floor levels are for commercial enterprises and the upper levels are for residential units. The complex is built around a central plaza area. Building D of the project forms one perimeter edge of the site and runs parallel to Vales Lane. At the time of the incident Building D was separated into a number of sub areas known as DI, D2, D3 and D4. 12 The individual sections of the building were at different stages of construction. Section D2 (from where the timber fell) was at a higher level than the adjoining section D1. Section D2 had been built up to level 5, with the level 5 floor slab having been poured and formwork support structure still in position on level 4 (under the ceiling of level 4/floor of level 5). Section D1 of the building was up to level 3 with the formwork deck in position and services and steel reinforcing being put in place. 13 Holdmark carried out and supervised the construction project. Holdmark had approximately 27 employees and engaged a large number of contractors including a number of supervisors and foremen to work on the project. The various scaffolding and formwork contractors at the site included: 13.1 Stretch Building Services Pty Ltd (ACN 102 722 814) (scaffolding); 13.2 SOS Building Services Pty Ltd (ACN 082 330 041) (scaffolding); 13.3 Safeway Constructions Services Pty Ltd (ACN 108 085 007) (scaffolding); 13.4 Lee Moore, subcontractor to Safeway Constructions Services Pty Ltd (scaffolding); 13.5 Arrow Construction (scaffolding); 13.6 Holdmark (Aust) Pty Ltd (ACN 081 233 132) (formwork); 13.7 REI Formworks; and 13.8 Quality Formworks. 14 Quality Formworks was a formwork company involved in the construction industry which employed approximately 10 to 16 employees dependent upon the scope and availability of work. Assad Saliba the sole director of the company was in charge of all company operations. Quality Formworks commenced work at Auburn Central approximately five months prior to the incident. 15 Quality Formworks involvement at the Auburn Central construction project was initially as a subcontractor to GJ Formwork Pty Ltd. GJ Formwork Pty Ltd had a written contract with Holdmark to carry out formwork erection and dismantling for parts of the site. GJ Formwork Pty Ltd subsequently engaged Quality Formworks to assist them in meeting the terms of their contractual agreement with Holdmark. Holdmark subsequently terminated its contract agreement with GJ Formwork Pty Ltd but retained Quality Formworks to continue working at the site. Incident on 23 March 2004 16 On the day of the incident, Quality Formworks was engaged in tasks including formwork stripping, that is, the removal of forms from the surface of hardened concrete. The formwork stripping occurred on level 4 of building D2. The form workers commenced work at approximately 7.00am. 17 Lee Moore, scaffolding supervisor, was engaged on an independent contractor basis at the site by Safeway Construction Services Pty Ltd. Lee Moore received instructions from Roger Kazzi who was engaged by Holdmark in the role of Site Safety and First Aid Officer. 18 On the day of the incident, Lee Moore commenced work at 7.00am and was instructing scaffolders from Stretch Building Services Pty Ltd in the task of erecting wire mesh and shade cloth on the scaffolding that surrounded building D. The scaffold had been raised the day before and the next task was to erect the wire mesh and shade cloth for the purpose of containing materials within the construction site and away from Vales Lane. 19 Lee Moore was initially working with scaffolders on the uppermost level of building D1 (level 3), adjoining level 3 of building D2, when he heard a crash of formwork. 20 Lee Moore walked over towards building D2 (where the scaffolding was not fully enclosed with wire mesh and shade cloth) and saw the form workers using a technique known as drop-stripping. Lee Moore noticed that the formwork was protruding out past the corner of the building. Drop stripping involves the replacement of formwork support frames with timber props. Lee Moore observed that the form workers were using a base jack onto which they had propped a bearer at an angle to the collar of the base jack. They would then proceed to throw a bearer at the base jack causing the formwork above and supported by the base jack to fall. Lee Moore had seen Quality Formworks use the same technique several days before. 21 Lee Moore asked Assad Saliba to cease drop-stripping because he had scaffolders working in the area. Assad Saliba told the Inspector 'They told me to stop drop the stuff, I said that I can't stop now the formwork is going to drop any second please move away.' Lee Moore instructed the scaffolders he was working with to make safe their work and leave the area. 22 The employees of Quality Formworks engaged in formwork activities and drop-stripping on the day of the incident included Assad Saliba, Louis Esho, labourer and Sabah Bani. According to Louis Esho other employees engaged in formwork activities and drop stripping on the day of the incident included Ziad Ballo, Sarkis Saliba and Bakhous Saliba. According to Ziad Ballo he joined Quality Formworks after the incident. According to Sarkis Saliba (19 years of age), foreman, he was not at work on the day of the incident. According to Bakhous Saliba (17 years of age), apprentice carpenter, he was working on the relevant day but was off-site at the time of the incident. 23 At about 8am, Keith Marnies, an employee of Shaya Construction Pty Ltd, was a carpenter working at the site and who was standing near Vales Lane. Keith Marnies was working with his co-worker Jason Twaddle, also an employee of Shaya Construction Pty Ltd, who was unloading the truck behind which Kevin Fisher's utility was stopped. Keith Marnies heard a loud bang and noticed a piece of formply hit the back of Kevin Fisher's ute. Keith Marnies immediately ran out into the centre of the lane to try and caution the workers working directly above the ute. Keith Marnies then noticed a piece of timber falling off the building where there was no wire mesh on the outside of the scaffold. The timber fell straight down and went through the front windscreen of Kevin Fisher's utility. 24 Quality Formworks informed its insurer that Napoleon Esho had accidentally dropped the piece of timber that struck the utility. However, Napoleon Esho was not working on building D on the day of the incident. 25 Following the incident, Louis Esho helped to barricade the Vales Lane side perimeter of building D2 with plywood because the scaffold was not fitted with wire mesh or shade cloth. Holdmark 26 Holdmark had prepared an Occupational Health and Safety Management Plan for the site and had a number of documented policies and procedures set out within the plan. Those documents included site induction register, toolbox talks, deficiency/corrective action reports and site safety inspections. 27 Holdmark had identified that the provision of external scaffold framing fitted with steel wire meshing and shade cloth material was a safe and suitable method of containing materials within the site and for the provision of overhead protection to public and lower level work areas. Holdmark did not have a documented policy or procedure concerning its requirements for erecting this barrier. 28 Clause 231 of the Occupational Health and Safety Regulations 2001 provides, inter alia, for the provision of overhead protective structures during construction work adjoining a public place that will catch, deflect or hold any weight and amount of material or objects that might reasonably be expected to fall on it. 29 Holdmark did not ensure that work was scheduled so that the mesh and shade cloth were fixed to the scaffold framework before work was carried out and formwork dismantled on level 4 of building D2. 30 Holdmark appointed a Project Manager - Zafer Maarabani to oversee the project, and numerous other personnel including, but not limited to: 30.1 Site Manager - Bachar Maarabani (contracting through Mabani Australia Pty Ltd); 30.2 Billy Nassif and Loui Abouhamad (who were identified by Holdmark as Senior Site Foremen); 30.3 Site Foremen - Danny Ibrahim (independent contractor), Sam Touma, Joe Bounossif, Charles Younan (independent contractor), Ahmed Jarouch, Anthony Touma, Simon Touma (contracting through the Simon Touma Family Trust), Maroun Sukkar, Joseph Touma, Tahir Mohamed; 30.4 Site Safety and First Aid officer - Roger Kazzi (independent contractor); and 30.5 Michael Dalzell, Site Occupational Health and Safety Consultant (contracting through Big Safety Pty Ltd ACN 098 838 923). 31 There was inadequate supervision of work conducted on building D2, including work by Quality Formworks, by Holdmark or its representatives on the day of the incident. Bachar Maarabani accepted general responsibility for the site, but was at building A1 at the time of the incident. Bachar Maarabani could not identify the foreman responsible for the work being undertaken in building D1 and D2 on the day of the incident, but thought that Simon Touma may have been responsible. Simon Touma stated that he was responsible for buildings C and E on the day of the incident, and was not responsible for building D. There was no foreman with apparent responsibility for supervising and coordinating work on building D1 and D2 on the day of the incident. 32 Holdmark were actively involved in conducting site safety inspections of the workplace, and issued a large number of verbal and/or written deficiency/corrective action reports to employees and contract companies, including Quality Formworks, in relation to safety issues or non-conformance issues at the site. Holdmark had issued Quality Formworks with written corrective action reports on approximately 14 occasions prior to the date of the incident, none of which related to drop-stripping. 33 Holdmark was aware of a problem with drop-stripping at the site and had issued warnings to formwork contractors. A corrective action report prohibiting drop stripping of formwork dated on or about 10 February 2004 was issued to REI Formwork by Michael Dalzell, Site Occupational Health and Safety Consultant. Michael Dalzell and Bachar Maarabani, Site Manager, had witnessed Quality Formworks engaging in the practice of drop-stripping and had issued warnings. 34 Following the incident, Holdmark prepared a brief incident report but left the investigation of the incident to WorkCover. On 24 March 2004, Holdmark issued a memo to formwork companies at the site advising that if any drop stripping occurs on the job site the company will immediately be requested to leave the site. A similar memo was also issued on the same date to scaffolding companies for scaffolding issues. A second memo was issued on 14 April 2004 to formwork trades regarding further issues with formwork at the site and including drop stripping. There was no apparent change by Holdmark to its systems of work in relation to monitoring or supervision of work activities at the site. Quality Formworks 35 Quality Formworks undertook work in an area where there was missing overhead protection screening on the external scaffolding over a public area. The Code of Practice for Formwork - 1998, provides at clause 4.7 (Prevention of Objects Falling), that perimeter edge protection should be constructed to effectively prevent any materials, tools or objects falling onto persons below. 36 Assad Saliba left the site for a period of time whilst work was being undertaken, leaving his employees with no direct supervision from himself or Holdmark. Quality Formworks had employed a number of new workers of non-english speaking background at the Auburn Central construction site. 37 Clause 3(m) of the Code of Practice for Formwork - 1998, provides at clause 3.3(m) that dismantling of formwork should generally be a reverse of the erection procedure, and that drop stripping is an unsafe practice and must not be carried out. 38 Assad Saliba allowed his two sons to monitor work activities in his absence. Sarkis Saliba, foreman, had no formal qualifications in occupational health and safety, construction or formwork, and his role was primarily to transport men and material to site and assist on occasion as a labourer. Bakhos Saliba was a first year apprentice form worker with two months experience in the construction industry prior to the incident.

HOLDMARK DEVELOPERS PTY LTD 1 At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 and empowered under Section 106(1)(c) of the Occupational Health and Safety Act 2000 to institute these proceedings. 2 The proceedings relate to an incident (the incident) which occurred on 23 March 2004 at and around the Auburn Central construction site at Vales Lane and Queen Street, Auburn in the State of New South Wales (the premises). 3 At all material times Holdmark Developers Pty Ltd (ACN 064 424 871) (Holdmark): 3.1 Was a duly incorporated company with its registered office located at Murchisons Services Pty Ltd, Level 2, 53 Berry Street, North Sydney NSW 2060; 3.2 Was engaged in the business of property development and construction at sites around Sydney including the premises; 3.3 Was the builder and principal contractor and a related company to the developer for the Auburn Central construction site at the premises ( Development); 3.4 Was an employer of persons including Zafer Maarabani, Project Manager for the Development; 3.5 Engaged various contractors including Quality Formworks Pty Ltd to perform work on the Development in the course of its undertaking; 3.6 Utilised the premises as a place of work. 4 At all material times Quality Formworks Pty Ltd (ACN 101 200 953) (Quality Formworks): 4.1 Was a duly incorporated company with its registered office located at 19 Denmark Street, Merrylands NSW 2160; 4.2 Was engaged in the business of providing formwork services at the premises; 4.3 Provided formwork services at the premises to Holdmark Developers Pty Ltd in the course of its undertaking; 4.4 Was an employer of persons including Assad Saliba, director; 4.5 Utilised the premises as a place of work. 5 At all material times Assad Saliba of 19 Denmark Street, Merrylands NSW 2160 was the sole director and shareholder of Quality Formworks. Incident 6 On 23 March 2004 (day of the incident), Kevin David Fisher, 23 years of age, a member of the public, was driving in his utility on Vales Lane on his way to work. As he was driving along the laneway his utility was obstructed by a truck, and he was forced to stop behind the truck. Whilst waiting, a piece of form ply board approximately 1m x 1.5m fell from the Auburn Central construction site and landed on a ladder mounted on the roof of his ute. A piece of formwork timber approximately 4.8m in length and 100mm x 75mm in dimension also fell from the Auburn Central construction site. The timber struck the windscreen of the ute puncturing the screen and striking the steering wheel column before bouncing and striking the driver's side door. Kevin Fisher sustained numerous small lacerations and abrasions to both hands and his right arm. He also suffered from the effects of a headache. Mr Fisher's father, David Fisher, who had witnessed the incident from another vehicle, assisted his son immediately following the incident. Kevin Fisher was also assisted by Holdmark's Site Safety & First Aid Officer, Roger Kazzi. 7 The form ply board and timber fell from the fourth level of building D2 where formwork stripping was being undertaken by Quality Formworks. Investigation 8 At about 10:15am on Tuesday 23rd March 2004 in company with Inspector Dubois, the Prosecutor attended Vales Lane, Auburn and made the following observations. 8.1 Vales Lane is a one-way public road that runs from South Parade through to Queen Street. The laneway provides rear access for commercial businesses on South Parade and Auburn Road. The laneway runs in a diagonal direction generally north to south. The north-eastern side of the laneway faces onto the rear of the commercial businesses whilst the south-western side forms the north-eastern boundary of Auburn Central construction site. 8.2 Approximately 40 metres along the main section of the laneway near the middle of the road there was a small pile of scattered glass fragments. 8.3 Lying in the rear yard of one of the premises on South parade near the broken glass was a length of timber. The timber had the numbers "4.8" written in black marker pen near one end. The timber was approximately 4800mm x 100mm x 75mm in size. 8.4 On the southern boundary of Vales Lane there was a large multilevel building, building D1-D3 under construction. This building is part of the Auburn Central construction project. · The building occupied the entire length of the laneway on one side. · There was a wire mesh fence erected along the edge of the laneway; this fence was incomplete in areas. · Near the broken glass was a driveway entry from the lane into the new building. · Above the driveway was an external concrete wall into which were fitted a number of ventilation shutters. · Above this level was an external scaffold frame. · The scaffold was erected onto I-beam supports that protruded out of the building in a cantilever fashion. · The external scaffold covered the entire horizontal length and vertical height. · The scaffold height was staggered along the length of the building. · There was steel wire mesh screen fitted to the external perimeter wall of the scaffold frame. · There was green coloured shade screen fitted over the wire mesh. This screen did not cover all of the wire and there was section on one side near the top of the scaffold where no screen was fitted. 8.5 There was a section of the scaffold in the area above the location of the broken glass that did not have any shade cloth screen fitted to it. This section was over two vertical scaffold lifts and about 1800mm in width. There was a male person carrying out work on the wire mesh in this section. 8.6 Whilst on level 3 the Prosecutor made the following observations of level 4. · Persons were carrying out work on level 4 of building D. · Concrete pouring of the floor of level 5 had been completed. Formwork soffit linings with bearers and formwork frame supports were still in position on level 4. · Diagonal bracing had been removed from a number of the formwork frame supports. · Timber props had been placed between the form ply soffit lining and the floor near the outside edge of the building where no formwork frames were in place. 8.7 No examination was made of the level 4 floor area as stairway access to this area was restricted by formwork support structure. 9 The Prosecutor issued a number of Improvement Notices on Holdmark and Quality Formworks dated 23 March 2004. 10 At about 3.50pm on Wednesday 31st March 2004 the Prosecutor attended M K Smash Repairs at 17 Euston Street, Rydalmere to inspect the Holden Rodeo utility that was damaged in the incident. The Prosecutor took a number of photographs of that vehicle and made the following observations: · The registration number of the vehicle was VQA761. · The vehicle was a white Holden Rodeo, single cab tabletop utility. · The vehicle was fitted with an aluminium box tray on the back. · The vehicle had carry racks fitted to the either end of the box tray. 10.1 The following damage was evident on the vehicle: · The bonnet had a number of dents. · The cab roof also had been dented. · The front laminated windscreen had been smashed and the glass was shattered. · A large hole had been punctured through glass. · The top of the dashboard had been damaged and scratched. · Pieces of glass were lying across the dash and throughout the interior of the cab. · The driver's side door window had been shattered. · The driver's side door trim had been smashed and a large section was missing above the door release handle. · The internal doorframe of the driver's side door had been dented and bent out of alignment. · The plastic steering wheel surround had been damaged and split open. · The steering column itself appeared to have been bent out of alignment. Background 11 Holdmark was the builder and principal contractor and a related company to the developer for the development site known as 'Auburn Central'. This site is a very large commercial and residential development that covers approximately six hectares. The project consists of a number of separate towers of various sizes. The lower levels of the site are for car parking and storage, the ground floor levels are for commercial enterprises and the upper levels are for residential units. The complex is built around a central plaza area. Building D of the project forms one perimeter edge of the site and runs parallel to Vales Lane. At the time of the incident Building D was separated into a number of sub areas known as DI, D2, D3 and D4. 12 The individual sections of the building were at different stages of construction. Section D2 (from where the timber fell) was at a higher level than the adjoining section D1. Section D2 had been built up to level 5, with the level 5 floor slab having been poured and formwork support structure still in position on level 4 (under the ceiling of level 4/floor of level 5). Section D1 of the building was up to level 3 with the formwork deck in position and services and steel reinforcing being put in place. 13 Holdmark carried out and supervised the construction project. Holdmark has approximately 27 employees and engaged a large number of contractors including a number of supervisors and foremen to work on the project. The various scaffolding and formwork contractors at the site included: 13.1 Stretch Building Services Pty Ltd (ACN 102 722 814) (scaffolding); 13.2 SOS Building Services Pty Ltd (ACN 082 330 041) (scaffolding); 13.3 Safeway Constructions Services Pty Ltd (ACN 108 085 007) (scaffolding); 13.4 Lee Moore, subcontractor to Safeway Constructions Services Pty Ltd (scaffolding); 13.5 Arrow Construction (scaffolding); 13.6 Holdmark (Aust) Pty Ltd (ACN 081 233 132) (formwork); 13.7 REI Formworks; and 13.8 Quality Formworks. 14 Quality Formworks is a formwork company involved in the construction industry which employs approximately 10 to 16 employees dependent upon the scope and availability of work. Assad Saliba the sole director of the company is in charge of all company operations. Quality Formworks commenced work at Auburn Central approximately five months prior to the incident. 15 Quality Formworks involvement at the Auburn Central construction project was initially as a subcontractor to GJ Formwork Pty Ltd. GJ Formwork Pty Ltd had a written contract with Holdmark to carry out formwork erection and dismantling for parts of the site. GJ Formwork Pty Ltd subsequently engaged Quality Formworks to assist them in meeting the terms of their contractual agreement with Holdmark. Holdmark subsequently terminated its contract agreement with GJ Formwork Pty Ltd but retained Quality Formworks to continue working at the site. Incident on 23 March 2004 16 On the day of the incident, Quality Formworks was engaged in tasks including formwork stripping, that is, the removal of forms from the surface of hardened concrete. The formwork stripping occurred on level 4 of building D2. The form workers commenced work at approximately 7.00am. 17 Lee Moore, scaffolding supervisor, was engaged on an independent contractor basis at the site by Safeway Construction Services Pty Ltd. Lee Moore received instructions from Roger Kazzi who was engaged by Holdmark in the role of Site Safety and First Aid Officer. 18 On the day of the incident, Lee Moore commenced work at 7.00am and was instructing scaffolders from Stretch Building Services Pty Ltd in the task of erecting wire mesh and shade cloth on the scaffolding that surrounded building D. The scaffold had been raised the day before. 19 Lee Moore was working with scaffolders on the uppermost level of building D1 (level 3), adjoining level 3 of building D2, when he heard a crash of formwork. 20 Lee Moore walked over towards building D2 and saw the form workers using a technique known as drop-stripping. Lee Moore noticed that the formwork was protruding out past the corner of the building. The form workers were working on level 4 of building D2. Drop stripping involves the replacement of formwork support frames with timber props. Lee Moore observed that the form workers were using a base jack onto which they had propped a bearer at an angle to the collar of the base jack. They would then proceed to throw a bearer at the base jack causing the formwork above and supported by the base jack to fall. 21 Lee Moore asked Assad Saliba to cease drop-stripping because he had scaffolders working in the area. Assad Saliba told the Inspector 'They told me to stop drop the stuff, I said that I can't stop now the formwork is going to drop any second please move away.' Lee Moore instructed the scaffolders he was working with to make safe their work and leave the area. 22 The employees of Quality Formworks engaged in formwork activities and drop-stripping on the day of the incident included Assad Saliba, Louis Esho, labourer and Sabah Bani. According to Louis Esho other employees engaged in formwork activities and drop stripping on the day of the incident included Ziad Ballo, Sarkis Saliba and Bakhous Saliba. According to Ziad Ballo he joined Quality Formworks after the incident. According to Sarkis Saliba (19 years of age), foreman, he was not at work on the day of the incident. According to Bakhous Saliba (17 years of age), apprentice carpenter, he was working on the relevant day but was off-site at the time of the incident. 23 Between approximately 8am and 9am, Keith Marnies, an employee of Shaya Construction Pty Ltd, was a carpenter working at the site and who was standing near Vales Lane. Keith Marnies was working with his co-worker Jason Twaddle, also an employee of Shaya Construction Pty Ltd, who was unloading the truck behind which Kevin Fisher's utility was stopped. Keith Marnies heard a loud bang and noticed a piece of formply hit the back of Kevin Fisher's ute. Keith Marnies immediately ran out into the centre of the lane to try and caution the workers working directly above the ute. Keith Marnies then noticed a piece of timber falling off the building where there was no wire mesh on the outside of the scaffold. The timber fell straight down and went through the front windscreen of Kevin Fisher's utility. Holdmark 24 Holdmark had prepared an Occupational Health and Safety Management Plan for the site and had a number of documented policies and procedures set out within the plan. Those documents included site induction register, toolbox talks, deficiency/corrective action reports and site safety inspections. 24 Holdmark had identified that the provision of external scaffold framing fitted with steel wire meshing and shade cloth material was a safe and suitable method of containing materials within the site and for the provision of overhead protection to public and lower level work areas. Holdmark did not have a documented policy or procedure concerning its requirements for erecting this barrier. 26 Clause 231 of the Occupational Health and Safety Regulations 2001 provides, inter alia, for the provision of overhead protective structures during construction work adjoining a public place that will catch, deflect or hold any weight and amount of material or objects that might reasonably be expected to fall on it. 27 Holdmark appointed a Project Manager - Zafer Maarabani to oversee the project, and numerous other personnel including, but not limited to: 27.1 Site Manager - Bachar Maarabani (contracting through Mabani Australia Pty Ltd); 27.2 Loui Abouhamad who was identified by Holdmark as Senior Site Foreman; 27.3 Site Foremen - Danny Ibrahim (independent contractor), Sam Touma, Joe Bounossif, Charles Younan (independent contractor), Ahmed Jarouch, Anthony Touma, Simon Touma (contracting through the Simon Touma Family Trust), Maroun Sukkar, Joseph Touma, Tahir Mohamed; 27.4 Site Safety and First Aid officer - Roger Kazzi (independent contractor); and 27.5 Michael Dalzell, Site Occupational Health and Safety Consultant (contracting through Big Safety Pty Ltd ACN 098 838 923). 28 There was inadequate supervision of work conducted on building D2, including work by Quality Formworks, by Holdmark or its representatives on the day of the incident. Bachar Maarabani accepted general responsibility for the site, but was at building A1 at the time of the incident. Bachar Maarabani could not identify the foreman responsible for the work being undertaken in building D1 and D2 on the day of the incident, but thought that Simon Touma may have been responsible. Simon Touma stated that he was responsible for buildings C and E on the day of the incident, and was not responsible for building D. 29 Holdmark were actively involved in conducting site safety inspections of the workplace, and issued a number of verbal and/or written deficiency/corrective action reports to employees and contract companies, including Quality Formworks, in relation to safety issues or non-conformance issues at the site. Holdmark had issued Quality Formworks with written corrective action reports on approximately 14 occasions prior to the date of the incident, none of which related to drop-stripping. 30 Holdmark was aware that drop-stripping had occurred at the site and had issued warnings to formwork contractors. A corrective action report prohibiting drop stripping of formwork dated on or about 10 February 2004 was issued to REI Formwork by Michael Dalzell, Site Occupational Health and Safety Consultant. Michael Dalzell and Bachar Maarabani, Site Manager, had witnessed Quality Formworks engaging in the practice of drop-stripping and had issued warnings. 31 Following the incident, Holdmark prepared a brief incident report but left the investigation of the incident to WorkCover. On 24 March 2004, Holdmark issued a memo to formwork companies at the site advising that if any drop stripping occurs on the job site the company will immediately be requested to leave the site. A similar memo was also issued on the same date to scaffolding companies for scaffolding issues. A second memo was issued on 14 April 2004 to formwork trades regarding further issues with formwork at the site and including drop stripping. Quality Formworks 32 The Code of Practice for Formwork - 1998, provides at clause 4.7 (Prevention of Objects Falling), that perimeter edge protection should be constructed to effectively prevent any materials, tools or objects falling onto persons below. 33 Assad Saliba left the site for a period of time whilst work was being undertaken, leaving his employees with no direct supervision from himself or Holdmark. Quality Formworks had employed a number of new workers of non-english speaking background at the Auburn Central construction site. 34 Clause 3(m) of the Code of Practice for Formwork - 1998, provides at clause 3.3(m) that dismantling of formwork should generally be a reverse of the erection procedure, and that drop stripping is an unsafe practice and must not be carried out. 35 Assad Saliba allowed his two sons to monitor work activities in his absence. Sarkis Saliba, foreman, had no formal qualifications in occupational health and safety, construction or formwork, and his role was primarily to transport men and material to site and assist on occasion as a labourer. Bakhos Saliba was a first year apprentice form worker with two months experience in the construction industry prior to the incident. oo00oo

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