Inspector Webster v AGG Concreting Pty Ltd, Darryl Coffey and Steven Stathis

Industrial Relations Commission (NSW)|2008-10-31|Before: Marks J, Mr P

CITATION: Inspector Webster v AGG Concreting Pty Ltd, Darryl Coffey and Steven Stathis [2009] NSWIRComm 55

PROSECUTOR WorkCover Authority of New South Wales

PARTIES: DEFENDANTS AGG Concreting Pty Ltd Darryl Brian Coffey Steven Stathis

CATCHWORDS: OHS prosecution - corporate defendant and two personal defendants directors of corporate defendant - guilty pleas - penalty - corporate defendant failed to ensure persons other than employees were not exposed to risks to health and safety arising from conduct at place of work - offence is a most serious one - inherently dangerous circumstances - culpability of corporate defendant less than that of principal contractor and sub-contractor which employed the victim - deterrent effect - mitigation - guilty pleas at earliest appropriate stage - co-operated fully with investigation - expression of contrition and remorse - sought to make improvements in operations of corporate defendant to ensure compliance with OHS obligations - ultimately the burden of the financial penalty on corporate defendant will fall on the personal defendants only - financial penalty on personal defendants reduced - defendants found guilty - penalties imposed.

Crimes (Sentencing Procedure) Act 1999 s10 LEGISLATION CITED: Fines Act 1996 s6 Occupational Health and Safety Act 2000 s8, s26

Haynes v CI&D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 CASES CITED: Inspector Aldred v Salamander Shores Hotel Pty Ltd & ors [2008] NSWIRComm 102 Inspector Trotter v BBC Hardware Limited and Bunnings Group Limited [2008] NSWIRComm 232 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449

HEARING DATES: 31 October 2008, 9 March 2009

PROSECUTOR Mr C Magee of counsel Solicitor Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Ms A Wong

DEFENDANTS Solicitor Sparke Helmore Mr P Thompson

Inspector David Webster v AGG Concreting Pty Ltd, Darryl Brian Coffey and Steven Stathis

Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

1 The prosecutor, Inspector Webster of the WorkCover Authority of New South Wales, has commenced proceedings against three defendants. The first is AGG Concreting Pty Ltd, the corporate defendant, the second Darryl Brian Coffey and the third Steven Stathis. The corporate defendant is charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). Each of the personal defendants, Messrs Coffey and Stathis is also charged with a breach of the same section of the Act by virtue of s 26(1) of the Act, they being directors of the corporate defendant. 2 Each of the defendants pleaded guilty to offences with which they are charged and this judgment is concerned with the question of penalty only. 3 The prosecutions arise out of a failure by the corporate defendant to comply with the Act by reason of its being an employer on 10 July 2006 at premises at 18 Wilfield Avenue Vaucluse. It is alleged that the corporate defendant failed to ensure that persons other than its employees, and in particular Liam Brewster, were not exposed to risks to health and safety arising from the conduct of its undertaking whilst at that place of work. The particulars of the charge brought against the corporate defendant as contained within a first amended application for order are as follows: (a) The defendant failed to ensure the safety of non employees, and in particular concrete pump linesmen, by permitting them to work at a height of approximately 6 metres on level 2 of building B at the premises without adequate scaffold, handrail or other form of fall protection being provided in front of the leading edge of the formwork deck where there was a risk of falling greater than 1.8 metres. (b) The defendant failed to ensure that the systems of work for pumping and placing of concrete were safe and without risks, as the system used involved non employees working near a leading edge at height without any adequate fall protection in place. (c) The defendant failed to require the provision of a safe work method statement from its subcontractors in relation to work to be performed by non employees, in particular with respect to the task of pumping and placing concrete at heights of more than 1.8 metres. (d) The defendant failed to provide adequate information, instruction and supervision to non employees, in particular in relation to the task of pumping and placing concrete at heights of more than 1.8 metres. 4 The particulars of the charge brought against each of the personal defendants is that each of them was a director of the corporation, with the remaining particulars being in identical terms as brought against the corporate defendant. 5 There was admitted into evidence an agreed statement of facts which was in the following terms: 1. At all material times, Inspector David Webster of the WorkCover Authority of New South Wales, 300 Elizabeth Street, Sydney in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter.

At all material times A.G.G. Concreting Pty Limited [ACN 083 813 432] ("the corporation"), was a corporation whose registered office was situated at 276 Railway Parade, Carlton, in the State of New South Wales.

At all material times the corporation was an employer.

At all material times Steven Stathis ("Mr Stathis") in the State of New South Wales was a director of the corporation.

At all material times Darryl Brian Coffey ("Mr Coffey") was a director of the corporation.

At all material times the corporation operated a business supplying concrete placing and finishing services, and associated labour in the building and construction industry.

Background 7. At all material times the defendant supplied labour, plant and equipment for the provision of concrete placing and associated works in relation to a construction project at 18 Wilfield Avenue, Vaucluse in the State of New South Wales, ("the Premises"). The project involved the construction of a two storey brick building ('building A') at the front of the property and a second two storey brick building ('building B') at the rear of the Premises ('the Project')

The defendant had been contracted to perform work on the Premises by the Principal Contractor, L.E.A.D Group Pty Limited ('LEAD').

At all material times the corporation subcontracted Proline Pumping Pty Limited ("Proline") to supply labour, plant and equipment for the provision of concrete pumping and associated works at the premises, in particular in relation to building B.

At all material times Mr Coffey performed work as a concreter on behalf of the corporation. Mr Coffey was the supervisor in relation to works performed by the corporation on the Project at the Premises.

At all material times Mr Stathis performed administrative and contract management work for the corporation. This included coordination of work performed by the corporation's staff and allocation of work to subcontractors, for the corporation.

At all material times Mr Stathis performed duties in relation to the coordination of the corporation's work on the Project at the Premises, including the retaining of Proline to provide concrete pumping services.

At all material times Proline employed Liam Brewster ("Mr Brewster") as a concrete pump linesman.

The Incident 14. On 10 July 2006, the corporation was undertaking concrete placing and finishing work on the second level of building B at the rear of the Premises.

On 10 July 2006, Proline had been retained by the corporation to provide labour and equipment for the purposes of pumping concrete to the second level of building B.

On 10 July 2006, Mr Stathis attended the Premises to coordinate the days work and went up to the second level of building B prior to the commencement of the concrete pour. Mr Stathis was not at the Premises at the time of the incident.

On 10 July 2006, Mr Coffey was engaged in the task of concrete placing and finishing on the second level of building B, with an employee of the corporation, Mr Lupo Romano ("Mr Romano").

At all material times building B had scaffolding erected partly around the outside of the building up to the formwork deck at level 2 of building B. The front section and the driveway towards the front of building B had no scaffold erected and no other form of fall protection in place. Mr Stathis and Mr Coffey were aware of the deficiency in the scaffolding and lack of fall protection.

On 10 July 2006, Mr Brewster was undertaking concrete pumping work on the second level of building B. Mr Brewster's role included assisting with a concrete pumping hose, which was being used to deliver concrete from an agitator truck at the front of the premises to the second level of building B at the rear of the premises. The task required Mr Brewster to work at a height of approximately 6 metres above the ground below.

After placing the concrete, Mr Brewster was required to assist with the task of cleaning the remnants of concrete from the pumping hose.

This task involved Mr Brewster holding the end of the hose while a cleaning ball was being forced through the hose, under pressure, to clean the remnants of concrete out of the hose.

The Director of Proline, Daniel Joyce ('Mr Joyce'), was holding the hose approximately 2 metres back from Mr Brewster. Mr Joyce was manipulating the pressure in the hose.

Whilst performing this task Mr Brewster was standing within close proximity to the leading edge of the formwork on the second level of building B. Mr Brewster had his back to the leading edge. At this location there was no scaffolding, handrails or any other form of fall protection provided to prevent persons from falling at the leading edge of the second level of building B.

As a result of the pressure in the line, the pumping hose moved suddenly causing Mr Brewster to lose his balance and he fell from the leading edge of building B approximately 6 metres to the ground.

Mr Brewster was still holding the hose as he fell from the leading edge and used the hose to slide down part of the way before letting go and falling approximately 4 to 4.5 metres onto broken bricks and other assorted construction materials which were lying on the ground below.

Mr Brewster sustained serious injuries including a fractured left thumb, fractured right foot and toes, a fractured right kneecap, knee ligament and cartilage damage and a puncture wound to the right thigh requiring two stitches. He was transferred to St Vincent's Hospital by ambulance. He underwent a number of surgical procedures, in particular to repair his fractured kneecap.

As a result of the injuries, Mr Brewster was off work for more than 6 months.

At the time that Mr Brewster fell, Mr Coffey was performing concrete finishing work on the formwork deck of level 2 of building B, in the vicinity where Mr Brewster had been working.

System of Work 29. Prior to work commencing on pumping an placing concrete at the premises the corporation had not undertaken a formal risk assessment of the task of pumping and placing concrete on to Level 2 of building B.

Nor did the corporation require Proline to provide them with a Safe Work Method statement for the task of concrete pumping and/or the process to be used in cleaning the concrete pumping hose.

Mr Brewster had not undertaken any site induction prior to commencing work at the Premises.

The system of work for pumping and placing concrete at the premises involved non employees of the corporation, and in particular Mr Brewster, working near the leading edge at heights greater than 1.8 metres from the ground, without adequate fall protection.

There were no steps taken by Mr Coffey, Mr Stathis, or any one else on behalf of the corporation, to ensure the area, in which persons who were not its employees were working, was safe including the requirement that adequate fall prevention be provided to all areas of level 2 of building B.

Steps taken after the Incident 34. Following the incident Mr Coffey stated that he had talked to the corporation's employees about safety, and that the corporation had taken steps to review its policies, procedures and work methods in relation to occupational health and safety.

Prior OHS Convictions 35. Neither the corporation, Mr Stathis or Mr Coffey have prior convictions under the Occupational Health and Safety legislation.

Cooperation with WorkCover 36. Each of the defendants cooperated with the WorkCover investigation.

Documents 37. The following supporting documentation is annexed: A) 11 Colour photographs taken by Inspector Ron Spence and Inspector David Webster on 10 July 2006 (11 pages). B) Factual Inspection report of Inspector David Webster dated 11 July 2006 (2 pages). C) AGG Work Method Statement - undated (4 pages). D) Trade Specific Hazards, Concrete Placement sheet - undated (3 pages). E) Workcover Prior convictions certificates. 6 Steven Stathis filed two affidavits, one on his own behalf and one on behalf of the corporate defendant and an affidavit of Darryl Coffey, the other personal defendant, was also admitted into evidence. 7 The evidence led on behalf of the corporate defendant was that it was registered on 10 August 1998 and carried on business as a "small company" providing a variety of concrete services. Its turnover for the 2005/2006 financial year was $850,000 and in the two succeeding years, $1.1 million and $980,000. It was incorporated "for the sole purpose of providing a vehicle by which (Stathis and Coffey) could operate our business, enter into contracts, obtain insurance and tender for work. In all other respects, Darryl Coffey and I are AGG." However, the evidence in the proceedings was that although both personal defendants were directors, Mr Coffey was the only shareholder. In his affidavit, Mr Stathis said: "Although Darryl (Coffey) is the sole shareholder, he and I have always operated AGG as an equal partnership. All of AGG's liabilities and profits have always been equally shared between us. Although not formalised in writing, the agreement to share AGG's liabilities equally between myself and Darryl Coffey extends to any fines that may be imposed upon AGG during the conduct of its undertaking. Consequently, should AGG be subject to a fine in relation to the incident, I will be required to pay one half of the fine in accordance with our agreement. I confirm that I will honour this agreement and will meet one half of any fine imposed upon AGG arising from the incident." Monies contributed by Mr Coffey to the company took the form of director's loans. 8 The starting point for the assessment of penalty in these proceedings is the objective seriousness of the offence as committed by the corporate defendant. Having regard to the circumstances in which the incident occurred, I am of the opinion that the offence is a most serious one. 9 Permitting work to be carried out on a building site from a height of six metres in circumstances where there was no or inadequate scaffolding or other appropriate guarding, creates circumstances which are inherently dangerous for persons performing work near the perimeter of the building. 10 Both the prosecutor and the defendants submitted that the culpability of the corporate defendant was, in all the circumstances, less than that of the principal contractor LEAD Group Pty Ltd and the sub-contractor, Proline Pumping Pty Ltd, which employed Mr Brewster and actually required him to work near the perimeter of the unguarded part of the building. I agree with these submissions. 11 In determining penalty, it is also necessary to take into account the deterrent effect of any penalty imposed, both generally within the building industry and specifically for these defendants. 12 There are a number of other matters that it is appropriate to take into account in mitigation. The defendants entered pleas of guilty at the earliest appropriate stage of the proceedings, they co-operated fully with the WorkCover Authority of New South Wales throughout its investigations, they expressed remorse and contrition for what had occurred and have sought to make improvements in the operations of the corporate defendant so as to ensure compliance with its occupational health and safety obligations. I note, however, that the prosecutor drew the attention of the defendants to some shortcomings in a work methods statement which it had prepared after the incident. The defendants have undertaken to remedy those shortcomings. 13 I deal firstly with the appropriate penalty to be imposed on the corporate defendant. The maximum penalty is $550,000. 14 It was submitted on behalf of the corporate defendant that this was a "small company", its financial means were limited and these matters should be taken into account in assessing the quantum of any penalty. This defendant relied, in support of this proposition, on a decision of the Full Bench of the Industrial Court of New South Wales in Haynes v CI&D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455. At p457 and the Court said: "In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind. (See Gordon v MIJO (NSW) Pty Ltd ; Ford v Warrah Ridge Pastoral Company Pty Ltd (unreported, Bauer J, 23 September 1994, Matter No CT1109 of 1993); Robins v CT Plumbing Pty Ltd (unreported, Fisher P, 16 December 1991, Matter No 522 of 1991) and Mauger v Krcmar Engineering Pty Ltd (1993) 47 IR 359). We consider that as precedent has developed there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied." 15 The corporate defendant submitted that it was in fact the corporate manifestation of the partnership between Messrs Stathis and Coffey and that the quantum of the penalty should be reduced to reflect this. 16 No specific submission was made on behalf of the corporate defendant that the provisions of s 6 of the Fines Act 1996 should apply to the assessment of the penalty to be imposed upon it. 17 The prosecutor submitted that such financial information as is available to the Court would not allow the corporate defendant to be characterised as a "small" company nor could it be characterised as being the corporate manifestation of the personal exertion of an individual or his or her family group. The financial records showed that the corporate defendant derived gross revenue in excess of $1.17 million for the 2007 financial year, $1.8 million for the 2006 financial year and of the order of $1.178 million in the June 2008 financial year. The gross profit for the June 2008 year was of the order of $196,000 and for the previous year $256,000. In the 2008 year there was a net trading loss of about $68,000 after allowing for "wages and salaries" of $181,000. In the 2007 financial year, there was an operating loss of about $2,000 after allowing for wages and salaries of $163,000. The evidence was to the effect that there was only one person employed by the corporate defendant so, presumably, the remainder of the "wages and salaries" may be assumed to have been derived by Messrs Stathis and Coffey. There is no documentation produced that would allow any greater analysis of this aspect of the company's operations to be made. 18 Given the size of the turnover of the corporate defendant and that it reflects the activities of two persons, it does not appear to me that I can apply to it the characterisation referred to by the Full Bench in Haynes, to which I have previously referred. Unfortunately, with respect, there does not appear to be any sufficiently detailed consideration of the circumstances of the corporate defendant in Haynes to allow me to have any more specific understanding of the circumstances in those proceedings when compared to the circumstances of the corporate defendant in these proceedings. 19 For this reason, I do not propose to have regard to the size of the business in determining penalty. In the absence of any specific application under s 6 of the Fines Act, it is not relevant that I take any further account of the financial circumstances of the corporate defendant. 20 Having regard to the objective seriousness of the offence, which I have described, and the need to consider the deterrent effect of any penalty, but having regard also to the mitigating factors that I take into account, I assess an appropriate penalty in the sum of $70,000. The prosecutor sought a moiety and an order for costs, neither of which was opposed by the defendants. 21 With respect to the personal defendants, two submissions were made on their behalf for the purpose of securing either a reduced or minimal penalty. 22 Firstly, there was a reliance upon s 10 of the Crimes (Sentencing Procedure) Act 1999. S 10 of that Act is in the following terms: 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 23 The relevant matters for consideration in determining whether the Court should exercise any discretion under s 10 of that Act are to be found in sub-s (3). 24 As the personal defendants readily conceded, there is Full Bench authority in this Court for the proposition that the availability of relief under s 10 is restricted to "rare, limited circumstances" when considering prosecutions under the Occupational Health and Safety Act. I refer to WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 especially at [45] to [47]. 25 In making this submission, the personal defendants have focussed on the fact that the corporate defendant is the manifestation by which they operated a business together, that they will each be responsible for meeting any financial penalty imposed on the corporate defendant and that they are at risk of having their interests punished twice. They also relied on their age (Mr Stathis is 53 and Mr Coffey is 58), the fact that they had no prior convictions over a period of 30 years involvement in what they described as a hazardous industry and that they are otherwise persons of good character. 26 A fundamental difficulty which must confront the personal defendants in connection with such a submission is that the legislature has seen fit to create separate and distinct offences that apply to directors and persons concerned with the management of corporations. S 26 of the Act is in the following terms: 26 Offences by corporations - liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 27 It will be seen that a director of a corporation which has contravened the Act is taken to have contravened the same provision (unless coming within the provisions of s 26(1)(a) or (b)). The creation of a separate and distinct offence under s 26 militates, in my opinion, against acceptance of the submission made by the personal defendants that the Court should take into account their argument based on the fact that the corporate defendant is the manifestation of the means by which they conducted their business together. 28 Having regard to the fact that the breaches of the Act to which they have pleaded guilty were serious ones, for the reasons which I have referred to, I am not persuaded that it is appropriate to apply the provisions of s 10 of the Crimes (Sentencing Procedures) Act. 29 The alternative submission made on behalf of the personal defendants was that any penalty imposed upon them should be substantially reduced because the burden of any penalty imposed upon the corporate defendant would ultimately be borne by them. 30 In considering this submission, I shall accept the evidence of the personal defendants that whilst Mr Coffey is the only shareholder, there is an agreement between them that both of them would make contribution to the funds of the corporate defendant to allow it to meet the payment of the financial penalty imposed upon it. As I have already indicated, that penalty is to be the sum of $70,000. It was submitted also that if the corporate defendant was unable to pay the amount of any penalty imposed and was forced into liquidation, Mr Stathis would suffer in that he would be unable to recover monies owing to him by way of director's loans. I do not intend having regard to this latter submission because the draft 2008 accounts of the corporate defendant indicate that at 30 June 2008, the directors' loans were of the order of $449. No other financial information was made available to the Court that would indicate that directors' loans in the aggregate amounted to any other figure. 31 The prosecutor submitted that there is no warrant for imposing a lesser penalty on individual defendants because of their close connection to a corporate defendant and that there was authority in this Court to reject such an approach. In particular, the prosecutor relied upon the judgment of Backman J in Inspector Aldred v Salamander Shores Hotel Pty Ltd & ors [2008] NSWIRComm 102. At [35] and [36], her Honour said: "35 A further submission put by the defendants was that the two individual defendants who remain as directors of the corporate defendant will bear the burden of any penalty imposed on the corporate defendant because of their close connections to the corporate defendant, and that this circumstance may warrant the imposition of a lesser penalty on the corporate defendant. Reliance for this proposition was said to be found in the dicta of the Full Bench in Haynes v CI& D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 at 457. The submission however, is against the weight of authority in this jurisdiction: see for example WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd (2006) 156 IR 341 and T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85. In the former authority the Full Bench found that the magistrate at first instance had misapplied the principle of totality by treating two corporate defendants as one entity for the purposes of sentencing on the basis that they were closely related entities having a common governance and operations. The principle sought to be relied upon by the individual defendants in Haynes v CI & D is found in the following passage extracted below (at 457): In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind.

36 In Inspector Jones v JT & LC Tippett Pty Ltd and Anor (No 2) [2007] NSWIRComm 306 I made a number of observations (at [39] to [41]) on the passage extracted above, which I adopt in these sentencing reasons. Although the observations in JT & LC Tippett were directed to a submission put on behalf of the defendants in that judgment that the Court may approach the imposition of penalty on a corporate defendant as if it were an individual, facing the lesser statutory maximum, they are equally applicable to the present submission advanced on behalf of the individual defendants in these proceedings. In my view, the passage extracted from Haynes v CI & D involves no more than a consideration of the means of a particular defendant to pay a fine. In addition, the Full Bench, in the passage, draws a clear distinction between a situation where the corporate structure is such that the burden of a fine imposed would fall on one person or one family group which may justify a lesser penalty and, a situation where the corporation has substantial assets which would not justify a lesser penalty. The corporate defendant in the present proceedings falls into the latter category. Nor does the Court know, on the evidence and material placed before it, whether the two remaining individual defendants, Messrs Chang and Herbert, will bear the burden of any penalty imposed on the corporate defendant. The issue insofar as it arises is rather, whether the corporate defendant has substantial assets which would enable it to meet any penalty imposed on it, or whether its financial situation is such that it has limited capacity to pay a penalty." 32 However, the circumstances that applied in those proceedings are relevantly different from those that apply in the context of these proceedings. At [36] Backman J noted specifically that there was no evidence about whether or not two of the three defendants would bear the burden of any penalty imposed on the corporate defendant. The situation that applies to these proceedings is different; as I have already pointed out, each of the personal defendants has established that he will bear a responsibility for the payment of the penalty imposed on the corporate defendant, or alternatively will suffer a loss if the corporate defendant is liquidated. 33 In Inspector Trotter v BBC Hardware Limited and Bunnings Group Limited [2008] NSWIRComm 232, I considered the circumstances of prosecutions instituted against two closely related corporate defendants arising out of the same incident. Having regard to a line of authority which I referred to in the course of my reasons for judgment, I ameliorated the aggregate penalties imposed on each of the corporate defendants because, essentially, ultimately they were to be borne by the same shareholders, namely the shareholders of the ultimate corporate proprietor of each of the defendants. In my opinion, the same approach is applicable in the circumstances of these proceedings. The corporate defendant and the personal defendants were all prosecuted arising out of the same incident. They are all guilty of the same offence. The personal defendants were only susceptible to prosecution because they were directors of the defendant corporation and, by virtue of s 26(1), are taken to have contravened the same section as the corporation. They are, as I have previously noted, either the only shareholder of the corporation or have a commitment to funding the corporation. Accordingly, although the prosecutor is clearly entitled, under the provisions of the Act, to have instituted proceedings against the personal defendants as well as the corporate defendant, ultimately the burden of the financial penalty will fall on the personal defendants only. In that I intend imposing a substantial penalty on the corporate defendant, as I have indicated, it is appropriate, in my opinion, having regard to the principles to which I referred in BBC Hardware that the financial penalty to be imposed on the personal defendants be reduced accordingly. I would emphasise that the approach which I have taken is confined to circumstances where concurrent proceedings are instituted against both the corporate defendant and its shareholders (or persons who are ultimately liable as if they were shareholders) arising out of the same incident and constituting, in effect, the same breach of the Occupational Health and Safety Act. 34 The maximum penalty that applies to each of the personal defendants is $55,000. Having regard to all of the matters to which I have referred, I intend imposing a penalty on each of them of $3,500. 35 The prosecutor sought a moiety of the penalties and costs orders, which were not opposed and, in my opinion, should properly be made. Orders

36 I make the following orders: 1) Each of the defendants is found guilty of the offence as charged and convicted accordingly. 2) I impose a penalty of $70,000 on AGG Concreting Pty Ltd and $3,500 on each of Darryl Brian Coffey and Steven Stathis, with a moiety in each case to the prosecutor. 3) The defendants are to pay the costs of the prosecutor in the proportion in which each of the penalties bears to $77,000, assessed by the Court in default of agreement.

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