Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales

Practice and Procedure - Summons for offence against occupational health and safety legislation - Plea of guilty - Application for leave to withdraw plea - Amendment of summons as to name of defendant - Whether a misnomer or misdescription rather than a misjoinder - Correction of originating summons to cure a defect in substance or in form - Discretion to allow withdrawal of plea - Summons amended - Leave refused for withdrawal of plea. Courts Legislation Amendment Act 2000 Crimes (Sentencing Procedure) Act 1999 s 22 Criminal Appeal Act 1912 s 5AA Fines Act 1996 s 6 Industrial Relations Act 1996 s 168 s 170 s 196 LEGISLATION CITED : Justices Act 1902 s 65 Occupational Health and Safety Act 1983 s 15(1) Supreme Court (Summary Jurisdiction) Act 1967 s 6(1) Industrial Relations Commission Rules 1996 r 89(5) r 148(1) Supreme Court Rules 1970 Pt 20 r 1 Supreme Court Rules (Vic) r 36.01 B & M Quality Constructions Pty Ltd v W G Brady Pty Ltd (1994) 15 ACSR 66 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, (1995) 37 NSWLR 150, (1995) 58 IR 363 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Crothers v Sheil (1933) 49 CLR 399 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Hedberg v Woodhall (1913) 15 CLR 531 J Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441 John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 McLean v Case & Deignan Pty Ltd (1961) 78 WN (NSW) 476 CASES CITED : NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 R v Boag (1994) 73 A Crim R 35 R v Davies (1993) 19 MVR 481 R v Lister (1955) 72 WN (NSW) 491 R v Marchando [2000] NSWCCA 8 R v Murphy [1965] VR 187 R v Sagiv (1986) 22 A Crim R 73 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Stanton v Abernathy (1990) 19 NSWLR 656 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 Whittam v W J Daniel & Co Ltd [1962] 1 QB 271 WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Ltd (2000) 97 IR 51 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 HEARING DATES: 10/26/2000; 11/13/2000 DATE OF JUDGMENT: 08/30/2001

APPELLANT Mr S J Archer of counsel with Ms S C Dowling of counsel Solicitor: Mr J A Leslie Smits Leslie LEGAL REPRESENTATIVES: RESPONDENT Ms A F Backman of counsel Solicitor: Mr J Lucas WorkCover Authority of New South Wales

JUDGMENT: - 52 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Thursday, 30 August 2001

Matter No IRC 2317 of 2000 MANPAC INDUSTRIES PTY LIMITED (FORMERLY t/as PACIFIC CONCRETE & QUARRIES PTY LIMITED) v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR FRANK GLASS) Appeal by Manpac Industries Pty Limited (formerly t/as Pacific Concrete & Quarries Pty Limited) against a decision given by Kavanagh J on 5 May 2000 in Matter No IRC 2364 of 1999 re prosecution under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT OF THE COURT [2001] NSWIRComm 190

1 This is an appeal by Manpac Industries Pty Limited (formerly t/as Pacific Concrete & Quarries Pty Limited) pursuant to s 5AA of the Criminal Appeal Act 1912, made applicable by s 196 of the Industrial Relations Act 1996, against a decision given by Kavanagh J on 5 May 2000 in WorkCover Authority of NSW (Insp Glass) v Pacific Concrete & Quarries Pty Ltd [2000] NSWIRComm 59. Her Honour found the appellant guilty of a breach on 12 January 1998 of s 15(1) of the Occupational Health and Safety Act 1983 and imposed a fine of $160,000. The appeal was against the finding of guilt and the quantum of the fine. The respondent, Frank Glass, as an inspector of the WorkCover Authority of New South Wales and the prosecutor below, resisted the challenge to her Honour's decision and orders.

2 The appeal arises in somewhat novel circumstances in that the defendant at first instance pleaded guilty to the charge and the matter proceeded before her Honour limited to the sole issue of penalty. However, during the proceedings it became apparent that the defendant, to use a neutral expression, was wrongly styled and it sought leave, unsuccessfully, to withdraw the plea of guilty; the prosecutor obtained leave to amend the initiating summons to correctly describe the proper defendant who is now the appellant before us. The issue the subject of the appeal was that the guilty plea was not entered by the appellant but by another corporation yet the appellant was the entity convicted and fined following the amendment to the summons made by her Honour. The argument on appeal was almost wholly concerned with that issue which, if the appellant be successful, would require both the conviction and fine to be vacated; if unsuccessful, the appellant persisted in its appeal on the quantum of the fine on the basis it was manifestly excessive.

3 In dealing with the primary issue of the identity of the proper defendant, it is necessary to trace how the matter developed and this may most conveniently be done by summarising the undisputed facts, as follows - (1) On 15 December 1992, Pacific Concrete & Quarries Pty Limited, with an Australian Company Number of 058 394 237 (the appellant), was registered under the Corporations Law. (2) Mr Anthony Martinelli was employed by the appellant as a truck driver to transport and deliver pre-cast concrete products from its factory premises to building sites. (3) On 12 January 1998, whilst so employed, Mr Martinelli sustained fatal crush injuries when four concrete slabs he was transporting on the appellant's truck became adrift on the brakes being applied and smashed through the driver's cabin pinning Mr Martinelli to the steering wheel and dashboard. (4) In early-February 1998, the prosecutor (the respondent to the present appeal) had discussions with Mr Joseph Tak-Wong Wong, a director of the appellant, at one of the appellant's plants concerning a new method to safely secure product on trucks. An improvement notice under the Occupational Health and Safety Act was thereupon issued to the appellant who implemented the changes required. (5) On 23 June 1998, Mr Wong provided written answers to questions submitted to him by the respondent in the course of the investigation of the incident on 12 January 1998 concerning Mr Martinelli. Presently relevant questions and answers included : 2. Q. What is the registered name and address of the company? A. Pacific Concrete & Quarries Pty Ltd: i. Registered Office: c/- Trood Pratt & Co, Suite 3102, Level 31, Tower Building, Australia Square, Sydney, NSW 2000 ii. Plants: a. Botany, 71 Stephen Road b. Ingleburn, 43 York Road c. Plumpton, 202 Power Street 3. Q. What is your position with the company? A. Managing Director. 4. Q. Do you have the authority to legally speak on behalf of the company? A. Yes. 5. Q. Was the company aware of an accident to Anthony Martinelli on the 12th of January, 1998? A. Yes. 6. Q. Was Anthony Martinelli an employee of the company on the 12th of January, 1998? A. Yes. 7. Q. Did Anthony Martinelli have the accident whilst working as a truck driver for the company on the 12th of January, 1998? A. Yes. (On 19 January 1999, Mr Wong signed a typewritten record of the interview he had with the prosecutor on 23 June 1998, including the above questions and answers in the terms so stated.) (6) On 7 January 1999, the appellant changed its name to Manpac Industries Pty Limited and retained its then existing ACN, namely, 058 394 237. (7) On 7 January 1999, Pacific Concrete & Quarries Pty Limited, with an ACN of 085 780 678 (hereinafter referred to as "the new company"), was registered under the Corporations Law. (8) In addition to his position as Managing Director of the appellant, Mr Wong was the sole director and Secretary of the new company, whose registered office was at the same address as that of the appellant. (9) Even though the corporate restructuring occurred on 7 January 1999, in the above-mentioned record of interview signed by Mr Wong on 19 January 1999 containing the questions and answers as to the identification of the employer as being "Pacific Concrete & Quarries Pty Ltd", no qualification or explanation was made by him in signing the statement; specifically, no mention was made of the respective ACNs of the two corporations or of any details of the corporate changes. (10) On 21 May 1999, the respondent issued four summonses against "Pacific Concrete and Quarries Pty Limited [ACN 085 780 678]" for breaches of s 15(1) of the Occupational Health and Safety Act in respect of the incident concerning Mr Martinelli on 12 January 1998.

(11) On 2 August 1999, the defendant's solicitor filed notices of appearance but the notices incorrectly stated that the solicitor appeared in the proceedings rather than, correctly as it should have been, the name of the corporate defendant. This aspect received no attention or mention in the preparation of the matter or at the hearing itself before Kavanagh J.

(12) On 2 December 1999, the respondent, by consent of the defendant, substituted one summons for the previous four summonses; that fresh summons was directed to the defendant named as "Pacific Concrete and Quarries Pty Limited [ACN 085 780 678]" and charged it with a breach of s 15(1) of the Occupational Health and Safety Act on 12 January 1998 in failing "to ensure the health safety and welfare at work of all its employees and, in particular, Anthony Martinelli" and particulars of the charge were set out. The defendant then entered a plea of guilty to the single charge. (13) In a statement signed by Mr Wong on 27 January 2000, prepared for the purposes of the hearing of the plea before her Honour on 7 February 2000, Mr Wong confirmed he was the Managing Director of the named defendant, that is, "Pacific Concrete & Quarries Pty Limited (ACN 085 780 678) ('PC&Q')". Although in that statement Mr Wong referred to his position as Managing Director by reference to the new company, having in mind the ACN given, he did so by referring to it as "PC&Q" as the defendant in the proceedings. Mr Wong's statement traced the history of the business operations of PC&Q, in delivering concrete panels to building sites, from well before the new company was incorporated on 7 January 1999 but without any mention of the corporate changes made on that date and even though the ACN cited by him was that of the new company. Relevantly for present purposes, Mr Wong said in the statement : 11. ... The deceased, Anthony Joseph Martinelli, was employed first as a permanent casual driver by PC&Q and commenced on 6 March 1997. He subsequently became a permanent employee on the 11th day of June 1997. ...

14. At the time PC&Q employed the deceased, Anthony Joseph Martinelli, PC&Q had 4 permanent drivers. Each of those drivers tied down the loads the same way. The deceased, Anthony Joseph Martinelli, was originally hired in early 1997 by PC&Q to drive concrete mixers. ... He was employed as a permanent casual to drive the concrete mixers. He was later offered a full time position with PC&Q. ...

23. In early February, after discussions with Inspector Glass at the Plumpton Plant, a new method of securing the "A" frames loaded with concrete panels to the trailers was put into place. ...

25. I have not received any complaints from any of the current drivers nor any driver employed since February 1998, that they were unhappy with the new system of work installed by PC&Q relevant to the loading and tying down of the "A" frames loaded with concrete panels. ...

26. PC&Q was first advised of the accident about 1.30 pm on 12 January 1998, when it received a telephone call from a Ms Tomerren from WorkCover, who called PC&Q's Botany office. On learning of the accident, PC&Q staff at Botany immediately arranged for its Production Manager Mark Griffin, its Payroll Officer Arvind Kumar, and Peter Zhou its Commercial Manager, to go immediately to the Eastlake site of the accident to see if they could assist. Another truck driver from PC&Q, Paul Carrington, was also sent to the spot to assist.

28. PC&Q then arranged for Mr Martinell's family to be informed of his death.

31. Following the accident on 12 January 1998, I authorised immediately payment of one week's pay to be paid to Mrs Martinelli on 13 January 1998.

32. On 20 January 1998, the Company paid a further amount to Mrs Martinelli.

33. I have been informed that Mrs Martinelli has not yet made a claim for workers compensation. PC&Q is insured for workers compensation with Mercantile Mutual. I understand there are no outstanding issues.

34. Upon receipt of the Summonses, I caused urgent discussions to take place with the Company's solicitors and after receiving advice and considering that advice, I instructed the solicitors to advise the Court that PC&Q would enter a plea of guilty.

36. PC&Q has no previous convictions under any Occupational Health Legislation. (14) The hearing of the guilty plea for the determination of an appropriate penalty was before Kavanagh J on 7 February 2000 at the conclusion of which her Honour reserved the decision with leave to the parties to file written submissions as to the financial status of the defendant. (15) However, no doubt as a result of researching the financial position, on 8 February 2000, the defendant's solicitor, acting for the new company, wrote to her Honour seeking leave to withdraw the guilty plea and for the amended summons to be dismissed on the basis that the named defendant (the new company) could not be the proper defendant because it was not incorporated until 7 January 1999 after the subject incident concerning Mr Martinelli occurred on 12 January 1998 and on which date he was employed by the appellant who had not been charged. After apologising "on behalf of our client and ourselves for misleading the Court on 7 February 2000", the solicitor stated :

When Mr Leslie prepared Mr Wong's Statement, he prepared it on the basis that the Defendant was the employer. The change of name of the actual employer to Manpac Industries Pty Limited (ACN 058 394 237) and the incorporation of the new company, Pacific Concrete and Quarries Pty Limited (ACN 085 780 678), which subsequently carried on the transport business formerly conducted by Manpac Industries Pty Limited [formerly named Pacific Concrete and Quarries Pty Limited (ACN 058 780 678)] has lead to confusion in our obtaining instructions from Mr Wong and in him giving instructions to us. In preparing the Statement of Mr Wong, we assumed wrongly that the prosecution had commenced proceedings against the correct defendant. If the prosecution obtained a search from ASIC before commencing these proceedings, it should have been obvious that the Defendant in these proceedings was not incorporated until 7 January 1999. (16) The hearing resumed before Kavanagh J on 9 February 2000 when the defendant formally sought leave to withdraw the guilty plea and for the summons to be dismissed. The prosecutor opposed any such order. Her Honour then adjourned the matter for further argument to 21 February 2000 when the prosecutor filed a notice of motion for an order to change the name of the defendant to "Manpac Industries Pty Limited ACN: 058 394 237". (17) The hearing of the motion and of the defendant's withdrawal of its guilty plea were heard by her Honour on 24 March 2000. (18) On 5 May 2000, her Honour gave judgment on the issues and ordered that the amended summons be further amended to name as the defendant "Manpac Industries Pty Limited ACN 058 394 237 formerly t/as Pacific Concrete and Quarries Pty Limited" and rejected the application to withdraw the plea of guilty. Her Honour then proceeded to find the defendant guilty and imposed a fine of $160,000 with a moiety to the prosecutor.

4 Before turning to the primary issues in the appeal, we interpose consideration of an application made by the appellant at the commencement of the hearing to lead fresh evidence in the form of historical extracts detailing the corporate history of the appellant and of the new company as recorded by the Australian Securities and Investments Commission. In support of the application, Mr S J Archer of counsel, who appeared with Ms S C Dowling of counsel for the appellant, submitted that the proposed evidence would demonstrate the two corporations concerned differed not only in their ACNs but also in the number and identity of their directors, shareholders and registered offices; the material, for some inexplicable reason, was available but not referred to Kavanagh J in the proceedings at first instance. Counsel submitted, against the opposition of Ms A F Backman of counsel for the respondent, that "fairness dictates that this Court have before it the whole of the material which makes good the point we wish to rely upon, namely, that although there is a confusion of names, there is a different entity who owns the company so substitution is more than the names, it is all those who are affected by the conviction from what flowed by what her Honour permitted to be done".

5 Section 5AA of the Criminal Appeal Act in sub-s (3) provides that this appeal is to be by way of rehearing on the evidence given at first instance, subject to the ability of the Court under sub-s (3A) to give leave to adduce fresh, additional or substituted evidence "but only if the court is satisfied that there are special grounds for doing so". After hearing Mr Archer, we announced our decision declining leave for admission of the fresh evidence because we were not satisfied special grounds had been established. We affirm that view. As Mr Archer conceded, quite properly and fairly if we may say so, if there had not been some evidence before Kavanagh J of the corporate structure of the new company he would not have made the application to admit evidence of the detailed corporate structure of both the appellant and of the new company - it was, as Mr Archer suggested, a situation at the moment of silence about the appellant's structure but with superficial and incomplete details about the new company so that "all the material should have been before her Honour".

6 It is plain that the appellant and the new company are separate legal entities - so much is clear from their names and respective ACNs and the proposed evidence is unnecessary to establish that. At most, it would show, apart from the commonality of Mr Wong with both corporations, another director and additional shareholders of the appellant, including a corporate shareholder. However, it was not suggested the proposed evidence would enable one to ascertain who owned the corporate shareholder and, indeed, it may well be Mr Wong. It would be unwise, we think, in endeavouring to clarify one aspect to raise confusion about another, particularly when it was common ground that the two corporations were separate entities. The proposed evidence was not before her Honour and, even if admitted on appeal, would not, in our view, further a determination of the essential issue. It was appropriate to decline leave to admit the additional evidence.

7 In the challenged decision, Kavanagh J outlined the facts and the course of the proceedings, including by reference to a comprehensive statement of agreed facts which contained details of the incident concerning Mr Martinelli on 12 January 1998, the terms of the charge under s 15(1) and the detriments to safety which existed in the system of work. Her Honour then referred to the presently critical facts in this way : 6. On the day of the accident, 12 January 1998, Pacific Concrete and Quarries Pty Limited was the name of the company that employed the deceased. Both parties agree to this as a statement of fact. The prosecution proceeded on a summons which refers to Pacific Concrete and Quarries Pty Limited, ACN No of 085 780 678, instead of the correct ACN No of 058 394 237 for the employer company. The company that employed Mr Martinelli, (ACN058 394 237) was incorporated on 15 December 1992. At the date of Mr Martinelli's death the registered office of the company that employed him was called Pacific Concrete & Quarries Pty Ltd and its registered address was c/- Trood Pratt and Co, Suite 3102 Level 31, Tower Building, Australia Square Sydney, with its place of business at 202 Power Road, Plumpton. Mr Joseph Tak-Wong Wong was the managing director.

7. On 7 January 1999 Pacific Concrete and Quarries Pty Limited (ACN 058 394 237) changed its name to Manpac Industries Pty Limited. The change of name had no effect on the ACN number. It stayed the same. However, also on that day, a new company was incorporated. The new company took up the name formerly held by Manpac. The new company received an ACN number of 085 780 678. That is the ACN number that incorrectly appears on the court process.

8. At the time of the commencement of proceedings both Pacific Concrete and Quarries Pty Limited ACN 085 780 678 (the new company) and Manpac Industries Pty Limited ACN 058 394 237 which formerly traded as Pacific Concrete & Quarries Pty Ltd (Mr Martinelli's employer) operated out of the same principal place of business with Mr Tak-Wong Wong as a director of both companies.

8 The issues to be decided were, and as they have been argued on appeal, posed by her Honour in the following questions : 9. ... Have proceedings been commenced against the proper employer and, if proceedings have not been commenced against the right employer, can the prosecutor amend the summons to name the correct defendant and further, in all of the circumstances, should the defendant be given leave to withdraw the plea of guilty?

9 Having heard the parties submissions on the issue of the identification of the true defendant and the ability for the amended summons to be further amended to state the correct name, Kavanagh J was persuaded, by reference to R v Lister (1955) 72 WN (NSW) 491 and McLean v Case & Deignan Pty Ltd (1961) 78 WN (NSW) 476, that "the court must amend the summons as it does not only mis-state the ACN number but mis-states the name of the employer company which was known as Manpac Industries Pty Limited at the time the summons was issued" (par [28]). Her Honour based that view on the following facts : 29. … the employer was named Pacific Concrete and Quarries Pty Limited at the time of the accident; the new company did not exist at that time; Mr Wong was a director of both the new company and the employer; Mr Wong understood the structure of each company yet on his instructions the plea of guilty was entered. Evidence on affidavit reveals the prosecutor conducted a number of inquiries which included a visit to the premises operated by the employer and interviews with staff at the site. The new company, the defendant in the amended summons proceeded upon, had no business premises or staff until a year later. Further, an improvement notice was issued to the employer and acted upon. Mr Wong, with his solicitor, met with the prosecutor and provided written and oral answers to questions from the WorkCover Authority. The tenor of the interview was that the prosecutor was interviewing the employer and the employer was answering questions in that role. No ACN number was referred to at this stage of the investigation. Mr Wong signed his record of interview on 10 January 1999, three days after the incorporation of the new company, and forwarded it to the WorkCover Authority. No reference in the record of interview was made to the change of name of the company to Manpac Industries Pty Limited. No reference was made to the incorporation of a new company. Further, in the hearing of the charge, the employer, having had legal advice, entered a plea of guilty. The prosecution on that plea went to hearing. Mr Wong attended at the court and was instructing his solicitor and counsel as to the plea. He tendered documentation. On the plea the defendant tendered the statement Mr Wong gave to the WorkCover Authority in his defence. His presence at court and the facts in the affidavit reveal he has been served with the summons. The court is persuaded he understood the significance of the charge.

10 Her Honour then found : 30. The court finds when the name of the company was changed from Pacific Concrete to Manpac and a new company was registered as Pacific Concrete, the company and Mr Wong, its director, may not have meant to deceive or mislead, but allowing it was not a deceptive act, it was nevertheless an act by the company which could be misleading and it certainly misled the prosecutor (see McLean's Case ).

11 The amended summons on which the plea of guilty was entered was then further amended to name the present appellant as the defendant.

12 As to the application to withdraw the plea of guilty, clearly on the basis the new company was not but another and separate corporation was the proper defendant, Kavanagh J reviewed certain authorities (see, in particular, R v Murphy [1965] VR 187; R v Sagiv (1986) 22 A Crim R 73; R v Davies (1993) 19 MVR 481 and R v Boag (1994) 73 A Crim R 35) and cited a recent decision in this respect of the Court of Criminal Appeal in R v Marchando [2000] NSWCCA 8, as followed by Wright J, President in this Court in WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Ltd (2000) 97 IR 51. In accepting that leave for the withdrawal of a plea of guilty was to be approached as a discretionary issue, her Honour declined leave on this basis : 34. ... It is clear this was a case of mistake by the prosecutor but no circumstances were put before the court which persuade the court the integrity of the plea as an admission of guilt is challenged. The court finds the plea was entered in full knowledge of all the facts and an awareness as to the charge. The court does not intend to order the plea of guilty be withdrawn.

13 It is crucial in determining this primary issue as to the amendment concerning the name of the defendant, as well as in considering the directly related issue of the exercise of discretion whether to allow withdrawal of the guilty plea, to identify precisely what Kavanagh J was asked to and did in fact do in light of the circumstances as they developed. Although those circumstances, as we have said, were not disputed, the consequences of them were so characterised by each of the parties as to lead to different results.

14 On the one hand, the appellant's position was that her Honour erred by treating the amendment as a correction to the name of the defendant whereas the legal effect of the amendment was the impermissible substitution of an entirely different legal entity and, importantly, where the relevant limitation period to bring the prosecution had expired. Mr Archer, in denying the relevance of the authorities relied upon by her Honour to support the amendment, described the position in terms that "the wrong Defendant has been brought before the Court" in that the person to whom the summons was addressed and the person who committed the offence were not the same legal person; counsel added there was no "legal basis for permitting ... 'amendment' to substitute one legal entity for another as the Defendant in the proceedings". The provisions of s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 had no application to permit amendment of the summons because the substitution of a new defendant was not a "defect" in the summons in the sense covered by the section: reference was made by counsel to support that proposition to various authorities, including Stanton v Abernathy (1990) 19 NSWLR 656, John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 and, in this Court, Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; (1995) 58 IR 363. As to the amendment being allowed by s 170 of the Industrial Relations Act, a section said by Mr Archer to be unavailable due to the operation of s 168(4) of that Act making the provisions of the Supreme Court (Summary Jurisdiction) Act prevalent, counsel said even if it did apply the section "does not extend to permitting the substitution of a different defendant to the charge."

15 On the other hand, Ms Backman described what had occurred as "a classic mis-description case where the true defendant was always intended to be prosecuted and the only problem was the name was incorrect" because "it was only the ACN which was wrongly noted and it could be ignored." Here, counsel submitted, the facts showed : As the investigative process has shown (especially the interview conducted between a WorkCover inspector and Mr Wong ...), it was always the intention of the prosecution to proceed against the true defendant, PCQ (Pacific Concrete and Quarries Pty Ltd). The true defendant, PCQ, has at no time been deceived or misled. In addition to PCQ's involvement during the investigation process, Mr Wong, on behalf of PCQ, entered a plea of guilty on legal advice and attended at Court and instructed his legal representatives on the plea before the Trial Judge. There is no injustice to PCQ since it was at all times aware of the summons and appeared at Court in answer to the charge.

Since the evidence adduced at the hearing established that PCQ was the relevant employer (of Mr Martinelli) on the day of the offence then there is no more than a variance between that evidence and the defendant's incorrect ACN, as nominated in the summons such that no objection can be taken to the summons. Neither could the true defendant, PCQ, have been misled by the variance ... .

16 In the circumstances which occurred, Ms Backman submitted that her Honour's decision to amend the summons to change the defendant's name was based on a misnomer or misdescription as opposed to a misjoinder or substitution. In that situation, it was properly open to apply the remedial provisions of s 6 of the Supreme Court (Summary Jurisdiction) Act and/or s 170 of the Industrial Relations Act.

17 Thus, the appellant claimed Kavanagh J "substituted" a new defendant whereas the respondent's position was that her Honour amended the name of the true defendant, being the entity or person always intended to be prosecuted, to correct a misnomer or misdescription. The distinction in or characterisation of what was done, in the circumstances which occurred, was, of course, crucial. In our view, for reasons which we will develop, if it be the former then the amendment was impermissible whereas if the latter it was quite proper for her Honour to so amend the summons. The real characterisation of what occurred to a determination of the issue of amendment was dealt with by Walsh J in Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 where his Honour allowed leave to amend the name of the plaintiff from "Rainbow Spray Irrigation Pty Limited" to "Rainbow Spray Sales Pty Limited" in an action brought under a contract to which Rainbow Spray Sales Pty Limited was a party. However, the difficulty identified by his Honour was that the documents named the plaintiff as Rainbow Spray Irrigation Pty Limited which was another then existing company. After observing that "it seems to be well settled that the power of amendment may not be used so as to change the constitution of the action, to make it an action between different parties from those that were the parties to it before the amendment", Walsh J added (at p 1441) : If this case ought to be regarded truly as the substituting for one plaintiff of another plaintiff, then I think on the authorities, I would be bound to refuse it, but it is not clear that it ought to be so regarded. …

On what I know of this matter, however, I think this cannot be regarded as a case where Rainbow Spray Irrigation Pty Limited advisedly but mistakenly considered that it had a claim against the defendant, whereas the true fact was that a different company had that claim. … This does seem to me, giving it the best reflection I can at this time, to be a case of the misnaming of the company which at all times sought to enforce this right.

I think I am entitled, in the circumstances of this case, to treat this as a case of correcting an error in naming the true plaintiff, and not as being an attempt to substitute one party for a different party. To put it another way, I think it can be said that one ought to consider the action, from the time of writ onwards, to have been and to have been intended to be an action by Rainbow Spray Sales Pty Limited, but because of someone's error the wrong name was typed on the documents.

In those circumstances, I think the matter comes within the power to amend, and I propose to allow the amendment which has been sought.

18 The importance of the real characterisation of the misdescription in the name of a party, in leading either to the impermissible adding of a new defendant or the available correction of a mere misnomer, was emphasised by Donovan LJ, with whom Danckwerts LJ agreed, in Whittam v W J Daniel & Co Ltd [1962] 1 QB 271 at p 282 where his Lordship recognised that "each case depends upon its own facts".

19 In J Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441, Walsh J (then sitting in the High Court) considered again this type of issue and observed (at p 443) : It has been held, in my opinion correctly, that a misdescription of a corporate body is capable of being regarded as a mere misnomer and of being corrected by amendment in the same way as the misnomer of a natural person (see Whittam v W J Daniel & Co Ltd , [1962] 1 QB 271 and Harstoff v Allen, [1967] Qd R 211). It must be acknowledged, however, that when, as in the present case, there were two companies in existence to which the writ could refer, it is more difficult to regard the name of one of them, set out in the writ, as being a misnomer, than it would be if there were no other entity in existence than the one to which the writ was intended to refer. The importance of this consideration has been recognised in the cases but in my opinion it has not been laid down that it is decisive.

20 It will be apparent that the proper characterisation of what occurred in the particular circumstances is necessary in order to determine the issue of amendment of process. That requires a finding of fact to be made and then to apply that finding to the relevant powers of the court to ascertain what, if any, remedy is available. Here, of course, Kavanagh J decided to amend the summons, in the manner earlier outlined by us, after reciting the facts and making findings thereon. Her Honour found that the corporate restructuring, as involving the change in the appellant's name from Pacific Concrete & Quarries Pty Limited to Manpac Industries Pty Limited and the registration on the same day of a new company also called Pacific Concrete & Quarries Pty Limited, putting aside any question of deception by the appellant and Mr Wong, "was nevertheless an act by the company which could be misleading and it certainly misled the prosecutor". Her Honour relied upon the decision of Richardson J in McLean (78 WN (NSW) at p 478) where his Honour upheld a magistrate's decision to amend the name of the defendant in a summons and information where the defendant's issuing of a cash docket in the wrong name "could be misleading and it certainly misled the informant". On making a comparable finding here, her Honour similarly amended the defendant's name in the summons to reflect the then current position. It is clear to us from a reading of the whole of her Honour's decision that that finding was based very much on the interview signed by Mr Wong on 19 January 1999 (12 days after the new company was registered on 7 January 1999) which set out in terms the information he had supplied to the prosecutor on 23 June 1998 in response to questions put by the prosecutor on 12 January 1998; the material disclosed that the name of the company being investigated as the relevant employer was said by Mr Wong to be "Pacific Concrete & Quarries Pty Limited". The charges were laid by the prosecutor on 21 May 1999.

21 The present appeal is an appeal as of right under s 5AA(1) of the Criminal Appeal Act. The argument on appeal proceeded on the basis that Kavanagh J erred in the finding made and hence in the consequent decision reached. It is necessary to point out, and as s 5AA(3) makes clear, that the proper approach on appeal is not the question whether her Honour so erred but whether the Court sitting on appeal is separately of the same view. As Enderby J (with whom Hunt CJ at CL and Allen J agreed) said in NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 at p 11 : ... it has to be borne in mind that it is not a question for this Court of whether or not his Honour erred in making the findings he made, but whether this Court is independently of the same opinion as his Honour. 22 That an appeal under s 5AA is not a hearing de novo or an appeal in the strict sense but rather a rehearing of the issues on the evidence given at first instance was affirmed by the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 692 per Kirby P. In other words, the Full Bench hearing this appeal is not to determine whether the trial judge fell into error but rather to determine independently the issue of guilt and/or sentence, as the case may be. Full Benches of this Court on an appeal brought pursuant to s 196 of the Industrial Relations Act have repeatedly adopted the same approach as that of the Court of Criminal Appeal to appeals under s 5AA of the Criminal Appeal Act; so much may now be taken as settled: see Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 338; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 75; and Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at pp 622-624, (2000) 99 IR 29 at pp 37-39.

23 However, for completeness but not as applicable to the present appeal, we should mention that the Criminal Appeal Act was amended by the Courts Legislation Amendment Act 2000, effective as to appeals lodged after 25 September 2000, by deleting s 5AA(3) and (3A) so as to remove the requirement that any such appeal is to be by way of rehearing on the original evidence with additional evidence by leave of the court on special grounds only. The effect of such amendment will be a matter for future appeals but not this one.

24 Thus, we approach our present task according to the following statement of principle in Warman International (80 IR at p 339) : It follows from the principles elaborated in those cases that the appellant here is not obliged to demonstrate error of the trial judge. The appeal comes to the Court by way of rehearing and the Court will consider the question of sentence (and conviction) for itself. That does not mean that the appeal bench will of necessity come to a conclusion in relation to penalty (or conviction) different from the sentencing judge. A different result need not necessarily flow from the appeal court's exercise of the sentencing discretion; it must nevertheless exercise that discretion.

25 In addition, and as was stated by the Full Bench in Fletcher Construction (91 IR at p 81) : Although this statement records the approach that should be taken, it is nevertheless appropriate, as a useful analytic device, to have regard to the way in which the matter was approached at first instance.

26 We have separately reviewed the evidence given at first instance and the undisputed facts which emerged therefrom as summarised earlier in these reasons. In that respect, the relevant facts identified by Kavanagh J in the judgment (at par [29] and cited above) on which her Honour's finding and conclusion were based, we are satisfied, accurately stated the position; we affirm the facts so found. The question on appeal, however, is whether those facts, in our independent opinion, properly enabled the amendment to be made to the summons as to the name of the defendant.

27 It is apparent to us that the real difficulty in this case arose from the inclusion in the summons of the ACN of the new company immediately after the defendant was named as "Pacific Concrete and Quarries Pty Limited". That name, putting aside the ACN (and the use of "and" rather than "&") was until 7 January 1999 the name of the employer of the deceased worker and, if the new company had not been registered in that name, in our view it would have been readily open to recognise the change in the employer's name on 7 January 1999 by amending the summons to replace the name stated with "Manpac Industries Pty Limited". So much is clear from sub-s (1) of s 161 of the Corporations Law which provides that a change of company name does not create a new legal entity, affect the company's existing property, rights or obligations or render defective any legal proceedings by or against the company; sub-s (2) thereof enables any legal proceedings begun against the company in its former name to be continued against it in its new name. Even so, Mr Archer made the submission, as he said, that "whatever one might think about the practice, evidently condoned by the Australian Securities and Investments Commission ('ASIC'), of permitting one company to abandon and another company to assume, contemporaneously, an identical name, the facts of this case disclose no attempt whatever on the part of [the employer] in particular, or of [the new company], to mislead or deceive the Respondent (the prosecutor) or to conceal anything from him". In the result, so counsel submitted, "the simple fact is that the Respondent made a serious mistake in bringing proceedings against the wrong company. ... the Prosecutor did not make an ASIC search of the proper Defendant before commencing proceedings." And so it was that Mr Archer submitted the amendment made by her Honour was to substitute another company for the defendant.

28 It is perhaps ironic to consider the judgment of Young J in B & M Quality Constructions Pty Ltd v W G Brady Pty Ltd (1994) 15 ACSR 66 in which the creation of ACN numbers to avoid problems of identity was discussed. There, his Honour dismissed proceedings against a corporation where the effect of a misdescription of a company name in combination with an ACN revealed no such company existed. Relevantly for present purposes, his Honour observed (at p 67) : There is authority for the view that courts should not be over-critical when dealing with situations where a company is misnamed. In Ex parte Ashby; Re Egg & I (Farm) Pty Ltd (1971) 2 PSR 969, the Court of Appeal made it abundantly clear that the law was to disregard trivial misdescriptions of company names and held that, with respect, a magistrate made a ridiculous decision when he dismissed an information against Egg & I (Farm) Pty Ltd because the word "the" was not used in the information. I followed that decision in Allen Properties (Qld) Pty Ltd v Encino Holding Pty Ltd (1985) 10 ACLR 104, and held that a statutory demand was not automatically defective because of a trivial error in a company name. I held that the court would disregard trivial errors and it would only be if on a fair construction of the notice the company (or in this case the creditor) was not named that one would set it aside.

Since those decisions were given the Corporations Law has been amended to include provision that each company should have an ACN; see ss 120, 219 and 372. I would have thought that at least part of the reason for these additions to the Law was to avoid the problem of identity that we now have, so that when one sees a misnomer together with an ACN, one applies the maxim of interpretation falsa demonstratio non nocet and disregards any minor amendment. 29 The said maxim, literally meaning that a false description does not vitiate a document, has application in law to the effect that if a description of something is partly true and partly false then, if the true part describes the subject with sufficient certainty, the false part will be ignored. In conceptual terms, it seems to us, the maxim is apt to apply in the present case because the identification of the defendant was correct in the name but where an incorrect ACN was added. The significance of the point may be seen once one realises that if the summons did not include the ACN then the defendant employer would have been correctly and sufficiently described; all that would have been necessary, and about which no issue was taken on appeal, was for the new name of Manpac Industries Pty Limited to have replaced Pacific Concrete and Quarries Pty Limited in the summons. We should not be seen as holding that the maxim falsa demonstratio non nocet is decisive of the issue as it is but a guide, to be utilised in appropriate circumstances, where a false description may sensibly be rectified if it is in the interests of justice to do so.

30 It is necessary then, having in mind the way in which the appeal was argued, to consider the ability of Kavanagh J to have made the amendment in light of the statutory powers available to the Court. This requires a consideration of the relevant provisions of the Supreme Court (Summary Jurisdiction) Act, the Industrial Relations Act and the Industrial Relations Commission Rules 1996, as follows : Supreme Court (Summary Jurisdiction) Act -

6. (1) No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.

(2) ... Industrial Relations Act -

(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.

(2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 :

(a) to the Supreme Court (except in section 15) - is taken to be a reference to the Commission in Court Session, and

(b) to rules - is taken to be a reference to rules of the Commission, and

(c) to the Prothonotary - is taken to be a reference to the Industrial Registrar.

(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made: (a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. Industrial Relations Commission Rules 1996 -

89(5) [Supreme Court practice and procedure] Where (a) there are no relevant provisions; and

(b) there is no established practice, procedure or usage; and

(c) there is no Rule, order, direction or Practice Direction in force,

the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal.

148(1) [Amendment to document] A tribunal may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in proceedings, in either case in such manner as the tribunal considers to be necessary in the interests of justice.

31 The appellant's argument presented by Mr Archer, as outlined earlier, was directed to s 6(1) of the Supreme Court (Summary Jurisdiction) Act as the relevant empowering provision but which did not enable the substitution of a new defendant after the time-limitation period had expired; counsel said that s 170 of the Industrial Relations Act had a similar operation but that, in the alternative, it did not apply because of its exclusion by s 168(4) of the Industrial Relations Act which restricted any remedial power to s 6(1). Ms Backman too relied upon s 6(1) but submitted that s 170 may be used in addition thereto to enable the summons to have been amended.

32 On the facts as we find them, and notwithstanding the use of the ACN of the new company, we are of the view that the true defendant stated in the summons was the appellant here, the employer of Mr Martinelli at the relevant time on 12 January 1998, and that it was always the intention of the prosecutor, the respondent to the appeal, to charge the employer with the concerned breach of s 15(1) of the Occupational Health and Safety Act. We emphasise, on the facts as we see them, that one is inexorably led to the view that the prosecutor intended to charge the employer, it was the employer who was named as the defendant and the only departure was the incorrect use of the new company's ACN. All that was required, on that finding of fact, was to either delete the ACN or to insert the ACN of the employer. So much was open, we are satisfied, in a proper application of the common law maxim falsa demonstratio non nocet and in the inherent power of the Court, as stated in the authorities of Rainbow Spray Irrigation, Whittam and J Robertson & Co, to correct a mistake in its process.

33 The reasons for our factual finding that it was always the employer who was named as the defendant may be stated quite shortly. The prosecutor investigated the incident and visited the premises of the employer to interview its staff shortly after the occurrence, at a time about 12 months before the new company came into existence, and issued to the employer an improvement notice to remedy the perceived safety risks which gave rise to the incident causing fatal injury to Mr Martinelli. The prosecutor then interviewed Mr Wong as the Managing Director of the employer, again at a time when the new company was not registered, and Mr Wong signed the record of interview confirming the information earlier given, without any correction or explanation by him, even though the document was signed 12 days after the new company was registered. Significantly, during the interview and in the signed record thereof, the employer was stated correctly to be "Pacific Concrete & Quarries Pty Limited". In that situation, we think it to be wholly unsurprising that the prosecutor would have so named the defendant in the summons but one might wonder why the incorrect ACN was used - the answer, we think, is plain in that the corporate restructuring occurred after the investigation identified the employer, the later signed record of interview by Mr Wong did not qualify or change the earlier information and the name of the employer was changed with its original name used by the new company; in that situation, a search of "Pacific Concrete & Quarries Pty Limited" would show that that corporation had the ACN of the new company rather than that of the original employer. That it was therefore the employer of Mr Martinelli so named as the defendant in the summons is the only reasonable conclusion from those facts, particularly when the prosecutor had no reason from his investigation to be aware of Manpac Industries Pty Limited to warrant a corporate search through the Australian Securities and Investments Commission.

34 Further, in our view, it is properly to be concluded that it was the employer who always understood it was the defendant charged and that remained the position up to the end of the substantive hearing before Kavanagh J. Indeed, in a statement prepared by Mr Wong and signed by him on 27 January 2000 for the purposes of that hearing, he referred to his position as Managing Director of Pacific Concrete & Quarries Pty Limited with the ACN of the new company but where the whole of the statement, the relevant parts of which we have outlined earlier in these reasons, referred to that entity as the employer of Mr Martinelli at the time of the incident and where Mr Wong on or about 1 November 1999, about nine months after the corporate restructuring, instructed the defendant's solicitor to enter a plea of guilty to the charge. It was on that basis the matter proceeded before Kavanagh J and, we have to say, one may only reasonably accept that it was the employer who was the true defendant named in the summons, albeit misdescribed with the ACN of the new company.

35 The decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 is authoritative in support of the view we have otherwise reached. Both Mr Archer and Ms Backman relied upon it for their respective propositions, but, we think, Mr Archer's reliance was misplaced. Although, of course, the facts were somewhat removed from those before us, the reasoning of their Honours is instructive in the correction of mistakes in proceedings arising from misnomer and misdescription and, as here on Mr Archer's submission, where the effect of the correction was to substitute another existing entity as a party. The facts arose in a context where the owner of goods damaged in transit by sea sued the company it engaged to carry them and that company sought to join as a third party the owner of the vessel; as it happened, however, the owner had in the meantime chartered the vessel to another company as the carrier of the goods. After the expiration of the limitation period, the company attempted by amendment of process to substitute the carrier as third party in place of the owner. The proposed amendment was unsuccessful as it was held the company had not made a mistake in the name of the party because it had intended to sue the owner of the vessel as the person against whom it considered an action lay.

36 The case was considered in terms of the provisions of r 36.01 of the Rules of the Supreme Court of Victoria which find their counterpart in this State in Pt 20 r 1 of the Supreme Court Rules 1970. In short, the rule relevantly enables the amendment of any document in proceedings to correct a mistake in the name of a party, whether or not the effect is to substitute another person as a party and, if so, the proceeding as to that other party shall be taken to have commenced on the day the proceeding commenced. In light of r 89(5) of the Industrial Relations Commission Rules the effective application of Pt 20 r 1, to the extent necessary, is available here if otherwise the Industrial Relations Commission Rules have no comparable provision in force or, indeed, if s 6 of the Supreme Court (Summary Jurisdiction) Act or s 170 of the Industrial Relations Act were unavailable for some reason to correct a misnomer or misdescription by reason of a mistake, as distinct from the identity, in the name of a party. It will be apparent that there is a plethora of means for amendments to be made to process in this Court. The type of provisions in r 36.01 are, therefore, directly in point.

37 In Bridge Shipping, Toohey J and McHugh J (with whom Brennan and Deane JJ agreed) held that r 36.01 covers not only cases of misnomer, clerical error and misdescription but also those where a plaintiff who intends to sue a person identified by a particular description is mistaken as to the name of the person answering that description. Dawson J held that the rule applies where there is a mistake as to the name, rather than as to the identity, of a party.

38 Toohey J found (at p 252) the application there to amend was not to correct a mistake in the name of a party by substituting another person as a party (within r 36.01) but rather involved the substitution of a person who ought to have been joined in the first place (outside r 36.01). His Honour put it this way (at p 251) : Where an application under r 36.01(4) is resisted, the task for the Court is to characterize the mistake which the applicant claims to have made. In the present case, if Bridge Shipping intended, by its third party notice, to join the carrier of the goods in the proceeding and wrongly concluded Grand Shipping to be the carrier, it is but a short step to conclude that Bridge Shipping made a mistake in the name of the third party. Even on that approach, it would not be right to say that it was a mere case of misnomer. It was more than that but it was still a "mistake in the name of a party" within r 36.01. 39 40 McHugh J reasoned as follows (at pp 260-261) : Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. ...

Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit ... . It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.

41 Specifically as to the question of the substitution of a new party in the process of amending the name, Dawson J said (at pp 238-239) : The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises.

42 His Honour then added (at p 241) : True it is that the correction of the mistake may result in the substitution of another person as a party, but this is permissible only if it is the result of the correction of an error in the naming of the true party. No doubt the substitution of "Rainbow Spray Sales Pty Limited" for "Rainbow Spray Irrigation Pty Limited" as plaintiff in Rainbow Spray Irrigation Pty Ltd v Hoette resulted in the substitution of another party for an existing party, but it was regarded by Walsh J as within the inherent jurisdiction of the court to allow the amendment effecting the substitution because it was the correction of an error in the name of the plaintiff and not in any other sense the substitution of a different plaintiff for an existing plaintiff. It is, as I have endeavoured to explain, the inherent jurisdiction to correct a misnomer or misdescription which lies behind the relevant paragraphs of r 36.01.

43 With reference to the particular circumstances of a case, a matter of importance we have been at pains to emphasise in the present case, Dawson J observed (at p 245) : It may sometimes be difficult to determine whether there is a mistake in name or a mistake in identity. When that is so and an amendment is sought under r 36.01, the question can only be resolved by asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is a misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then that rules does not apply.

44 The parties argued the appeal before us by reference to the directly applicable provisions of s 6(1) of the Supreme Court (Summary Jurisdiction) Act, although during argument the provisions of s 170 of the Industrial Relations Act and r 148(1) of the Industrial Relations Commission Rules were debated. The appellant adopted, as we have said, the position that none of those provisions were available to support the amendment made by Kavanagh J because what her Honour did was to substitute another existing party outside the time-limitation period; the respondent submitted the proper characterisation of what occurred was an intention by the prosecutor to always charge the employer of the injured worker but where due to a mistake, assisted by the information given by Mr Wong, a misnomer or misdescription in the name of the employer occurred capable of correction under s 6(1) and/or s 170. We propose to adopt the preferable course of similarly deciding this matter by reference to the statutory provisions directly relied upon. However, we have to repeat that in terms of conceptual reasoning we have found, as indeed the parties themselves did in their respective arguments, the approach of the High Court in Bridge Shipping to be particularly apt. Importantly, as seemingly occurred here, that reasoning makes clear that although the substitution of another entity as the party may occur as a result of the correction of a mistake, that is permissible where the substitution corrects an error in the name of the true or real party intended to be prosecuted; that is, in the name of the party which was, as a matter of fact, prosecuted.

45 For present purposes, therefore, we focus on the provisions of s 6(1) of the Supreme Court (Summary Jurisdiction) Act and s 170(1) of the Industrial Relations Act as to their ability to enable the subject amendment to be made to the summons, having in mind, of course, our finding of fact as to the characterisation of what occurred. This requires immediately a consideration of Mr Archer's submission that s 170 had no application because of the provisions of s 168(4) of the Industrial Relations Act which, as counsel said, excluded s 170 in favour of s 6(1). We disagree. This issue arose directly for consideration by a Full Bench of the Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 where their Honours said (at p 170) : In view of the similar subject matters dealt with by s 168 and s 196 it is not likely that the different formulations used in s 168(4) and s 196(1) were unintended by the legislature. The latter provision shows a clear intention on the part of the legislature that s 196 applies in such a way as to, in effect, override the other provisions of the relevant Part of the Industrial Relations Act . The legislature has specifically used a different form of words in s 168(4), and thus plainly indicated that the words in that provision were intended to have a different effect. That is, the other relevant provisions in Pt 5 of Ch 4, including s 170, were intended to relevantly apply except where their application was inconsistent with s 168 or the provisions incorporated thereby from the Summary Jurisdiction Act. We do not consider that any provisions in that Act are inconsistent with s 170 and therefore that section applies to proceedings commenced in the Court Session pursuant to s 168 and the Summary Jurisdiction Act. In arriving at this conclusion we have not overlooked s 6(1) of the Summary Jurisdiction Act , which provides relevantly: "No objection shall be taken or allowed to any application referred to in ... section 4 ... by reason of any alleged defect in it in substance or in form ... "

We do not consider that provision should be construed as involving any inconsistency with the operation of s 170.

46 In the result, we are of the view that either or both s 6(1) and s 170(1) may be called in aid to remedy any defect within the scope of those provisions.

47 We are satisfied that the amendment made by Kavanagh J was well within s 6(1) of the Supreme Court (Summary Jurisdiction) Act as the correction of a misnomer or misdescription in the name of the true defendant. As Brennan J observed in John L (163 CLR at pp 529-530) the sub-section "operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications". His Honour relied for that proposition on the since undoubted authorities of Hedberg v Woodhall (1913) 15 CLR 531 at pp 534-535 and Johnson v Miller (1937) 59 CLR 467 at p 478. Having in mind also, as the earlier cited extracts from Bridge Shipping make clear, that provisions of the kind of s 6(1) cover a misnomer and misdescription in the mistaken use in the proceedings of the name of a party, and even if substitution be strictly involved in the correction of any mistake, the availability of s 6(1) to remedy the defect alleged here is plain. In any event, we do not doubt that s 170(1) of the Industrial Relations Act, in its terms and to the extent necessary, clearly would have enabled the amendment to be made in the interests of justice. The appeal on this aspect must fail.

48 The conclusion which otherwise we have reached that the amendment here was within the scope of s 6(1), even though it may have involved the "substitution" of the name of another entity, at least in a technical or notional sense, is supported by the decision of the High Court in Crothers v Sheil (1933) 49 CLR 399. There, an information was laid by an officer of the Milk Board in his own name, described therein as "an officer in the service of the Milk Board duly authorised to prosecute herein", whereas the statute concerned laid down that any information may be taken in the name of the Milk Board by the Secretary or by any other officer authorised by the Board. It was held that s 65 of the Justices Act 1902 (relevantly in the same terms as s 6 of the Supreme Court (Summary Jurisdiction) Act operated to cure as a defect the omission to lay the information in the name of the Milk Board. Rich J (with whom Dixon, Evatt and McTiernan JJ agreed) said (at p 407) : The appellant was the proper officer to lay the information on behalf of the Board and the information shows that he did so prosecute. Where the information fails to comply with sec 80 is that the appellant exercised his authority in his own name and not in the name of his principal - the Board. This, in my opinion, is a defect in the information, and is healed by sec 65 of the Justices Act 1902. I cannot agree with Mr Watt's contention that the information is not defective in substance or in form and that all that is wrong is that the informant has no locus standi . When sec 80 of the Milk Act is looked at with the information what appears is that the right person has proceeded by an appropriate information and in the information has proceeded expressly on behalf of his principal but has drawn up the information in his own but not in his principal's name.

49 As to the appellant's challenge to Kavanagh J rejecting the defendant's application to withdraw its plea of guilty, the appeal on this aspect must fail also in light of our conclusion concerning the amendment of the named defendant to the summons. The plea was entered, as the facts have been found, by the appellant as the employer charged with the offence and consistent with the instructions given to and acted upon by its solicitor on or about 1 November 1999. The purported withdrawal of the plea was made by the solicitor on behalf of the new company by his letter to her Honour dated 8 February 2000; the application so made therein was on the sole basis that the defendant in the proceedings was the new company as incorporated on 7 January 1999 and was not the employer of the injured worker to whom the offence on 12 January 1998 related. The finding made on appeal removes that basis. Similarly, Mr Archer submitted that this matter was irrelevant because it was not the appellant who entered the plea of guilty but the new company so that, on the facts as alleged by the appellant, the plea was patently erroneous. Again, on the facts as found, it was the appellant as the employer who entered the plea.

50 In any event, her Honour referred to the relevant authorities concerning the principles to be applied in considering whether to grant leave for the withdrawal of a guilty plea: see as earlier cited Marchando; Sagiv; Davies; Boag; and RGM Building Services. Her Honour, in exercising the discretion available, concluded : 34. ... It is clear this was a case of mistake by the prosecutor but no circumstances were put before the court which persuade the court the integrity of the plea as an admission of guilt is challenged. The court finds the plea was entered in full knowledge of all the facts and an awareness as to the charge. The court does not intend to order the plea of guilty be withdrawn.

51 That finding was properly open to her Honour and, indeed, we agree with it.

52 Perhaps curiously, on appeal the appellant put no submission, even in the alternative, that should it be found to be the appropriate defendant then it sought leave to withdraw the guilty plea. The sole basis for the appeal, as we have said, was that the appellant was not the named defendant but was improperly made such by the impermissible amendment. Strictly speaking, then, the guilty plea stands as unaffected. Nevertheless, but somewhat inconsistently with the way in which the appeal was argued, the notice of appeal contained the following grounds of appeal : 7. Her Honour erred as a matter of fact and law in refusing to grant the application of the Appellant to withdraw its plea of guilty.

8. Her Honour erred in finding the Appellant guilty of the charge.

53 It is true there may be an appeal against a conviction entered pursuant to a plea of guilty, in which case the principle to be applied on appeal is the same as that applied at first instance prior to sentence where an accused seeks leave to withdraw a plea of guilty: see Davies. In Murphy, the Full Court of the Supreme Court of Victoria held that, save in exceptional circumstances, an appellate court will only entertain an appeal against conviction based on a plea of guilty if it appears the appellant did not appreciate the nature of the charge or did not intend to admit guilt or on the admitted facts the law did not support the conviction. Herring CJ and Adam J observed ([1965] VR at pp 187-188) : A plea of guilty duly recorded provides the strongest evidence of guilt. Accordingly, although this Court may grant leave to appeal on any ground which appears to it "to be a sufficient ground of appeal" (s 567(c) of the Crimes Act), on principle one would expect that in such a case leave would be refused save in exceptional circumstances where the plea of guilty itself has been induced by material mistake or the like. And so it has been held in decisions both in England and in this State. In R v Forde , [1923] 2 KB 400, at p 403; [1923] All ER Rep 477, Avory, J, put the matter thus: "A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged." This statement of the matters relevant to such an appeal was approved and applied by our own Full Court in R v Stewart , [1960] VR 106. While no doubt there are dangers in fettering such a wide discretion as is conferred on this Court by s 567(c) by the formulation of precise rules or tests to meet all circumstances, we consider that the rules as formulated in R v Forde, supra, will be found to provide a sound guide to be followed in most, if not all, cases.

54 We are satisfied, as earlier intimated, that the decision made by Kavanagh J rejecting the application to withdraw the plea of guilty was properly made and we would not decide otherwise. Indeed, our independent review of the facts, particularly those set out in the agreed statement of facts admitted in the proceedings at first instance without qualification or change, satisfies us beyond doubt that the plea of guilty was properly made and accepted by her Honour. In a real sense, of course, in considering the next phase of the appeal concerning the level of the penalty imposed the existence of a guilty plea is of benefit to the appellant, as it was to it as the defendant at first instance. We turn now to a review of that aspect but in the context of a guilty plea having been given by the appellant.

55 The maximum penalty for the offence here was $550,000. The appellant had no prior convictions and entered a plea of guilty. After reviewing the circumstances of the offence and the applicable principles in the sentencing of offenders, Kavanagh J considered the financial position of the appellant and then imposed a fine of $160,000.

56 In support of an order on appeal that the penalty fixed by her Honour be reduced, Mr Archer submitted the following written propositions : 15. The penalty was manifestly excessive. The Appellant had no previous offences ... . Nobody knew how the unfortunate accident occurred ... . The learned Trial Judge appears to have taken into account a lack of commitment on the part of (the employer) to future occupational health and safety (par [48]). There was no evidence that (the employer) was involved in the employment of people in industry or that, if it was, that it had no commitment to such health or safety. The learned Trial Judge erred seriously in taking such matters into account upon the matter of penalty.

16. The learned Trial Judge erred in her consideration, such as it was, of the financial position of the Appellant. Either such financial position is, or is not, a matter to be taken into account in determining the penalty that should be imposed. While Her Honour's judgment seems to have taken into account the Appellant's financial position (par [50]), as was required by decisions such as Ferguson v Nelmac Pty Limited (1999) 92 IR 188, her findings (par [51]) suggest that she set the evidence that was before her at nought. The only evidence before Her Honour was that the Appellant was subject to a Deed of Company Arrangement and was insolvent ... . No relevant principle of criminal law, justifying the imposition of a penalty of $160,000 upon an insolvent company that, on the evidence, appeared no longer to be trading, was adverted to by Her Honour. The penalty seems to have been assessed arbitrarily, without resort to any principle or precedent.

17. While the death of Mr Martinelli was tragic and unfortunate, the circumstances did not warrant the imposition of such a severe penalty upon a company in the particular circumstances and was manifestly excessive.

57 In his oral submissions, Mr Archer focused on the financial position of the appellant and, whilst not suggesting the offence was not serious, put that Kavanagh J mistakenly viewed the documents. Her Honour, correctly submitted counsel, said in the decision (at par [51]) the appellant was subject to a deed of company arrangement commencing on 19 October 1998; under the deed it contributed by five equal instalments from 31 January 1999 to 30 December 1999 a total amount of $500,000 to the deed administration fund. Her Honour found the appellant's statement of assets and liabilities post the deed "suggests the company has a book value of assets of $3.3 million" and "the company has significant financial liabilities". Mr Archer said her Honour's reference to the assets of $3.3 million misunderstood the statement which, although showing that figure as at 31 August 1998, in fact showed as at the relevant date of 31 March 2000 total assets of only $31,000 and total liabilities of $2.37 million - a deficit of about $2.339 million. There was no other evidence in the proceedings testing the financial position of the appellant, such as its disposal of the earlier assets other than, as the statement showed, that a total of about $2.812 million for trade debtors and stock-on-hand was "collected or written off". It followed, on counsel's submission, that "the imposition of a fine of $160,000 on a company with net assets of $31,000 is demonstrably oppressive".

58 Ms Backman, in supporting the appropriateness of the penalty of $160,000 was content to rely on her written submissions in these terms : 23. At paragraph 48 of the Judgment, the Trial Judge commented correctly, that there was no evidence before the Court, either orally or by way of written documentation, which supported, "... any ongoing commitment to occupational health and safety". Nevertheless, the Court accepted assurances from the bar table as to future safety practices. In the same paragraph, the Trial Judge stated in the context of accepting the assurance of counsel that, " ... the evidence before (the Court) of future commitment to safe working (was) sketchy". The effect of this finding, it is submitted, is that contrary to the appellant's Outline of Submissions (at paragraph 15), at least some commitment by the defendant was taken into account on sentence.

24. In relation to the defendant's financial position, the sentencing Court had before it a Deed of Arrangement which commenced on 19 October 1998. ...

25. The Trial Judge noted that the Deed suggested the company had a book value of assets of $3.3 million ... and that company payments up to 30 December 1999 of $500,000 have been paid to the Deed Administration Fund ...

26. There can be no suggestion on this evidence that the Trial Judge "set the evidence that was before her at nought" (see appellant's Outline of Submissions at paragraph 16).

59 Counsel emphasised that the maximum penalty for the offence was $550,000 and, as stated recently by Wright J, President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 at par [40], "existing sentencing patterns are to move in a sharply upward manner, manifested in the most recent significant increases in penalties under the Act".

60 In charging a breach of s 15(1) of the Occupational Health and Safety Act that the appellant on 12 January 1998 being an employer "did fail to ensure the health safety and welfare at work of all its employees and in particular, Anthony Martinelli", the amended summons gave particulars as follows : 1. The defendant failed to provide adequate training and instructions to its employees on how to safely secure loads of concrete slabs onto the truck so as to ensure that the slabs would not shift or move during transportation.

2. The defendant failed to provide and maintain plant and systems of work that was safe and without risks to health. In particular, the defendant failed to: a) ensure that the two "A" frames used to support the load of concrete slabs on the truck were permanently attached to the trailer instead of resting on a steel table top and relying on a steel to steel friction coefficient to prevent sliding.

b) ensure that there were adequate forward or rear restraints to prevent the load of concrete slabs from moving forward or backward whilst being transported by the truck. c) failed to provide adequate matting between the "A" frames to compensate for the design and ensure positive positioning of the "A" frames. d) failed to provide adequate number of chains to be used in securing the load.

3. The defendant failed to adequately supervise the task of loading and securing of concrete slabs onto its trucks to ensure that the load was securely placed and would not shift should the truck apply its brakes during transportation.

61 Those particulars were repeated in terms in the statement of agreed facts.

62 It is apparent from the statement that on 12 January 1998 Mr Martinelli was driving the appellant's truck, loaded with four concrete precast panels each measuring 10.1m x 1.3m x 0.180m and weighing about 5.5 tonnes for delivery to building sites, on a curved downhill section of Southern Cross Drive. The panels rested on wooden blocks and were secured to the trailer of the truck by an 8mm chain approximately 2.3m from the front of the trailer with a rubber mat inserted between the chain and the panels; a second chain was attached for security of the panels approximately 7.1m from the first chain. While so travelling, Mr Martinelli forcefully applied the brakes because of the traffic conditions and thereupon, as the statement records, "the momentum of the concrete slabs travelling at high speed and the opposing forces due to the braking action exerted sufficient force to overcome the coefficient of friction existing between the 'A' frames and the strength of the chain causing the chain restraining the slabs to break. The slabs were then able to slide forward, smash through the driver's cabin and crush the driver". The statement then recorded : 19. Investigations revealed the following: i. The vehicle involved in the accident did not have any major defects that could have contributed to the accident. ii. The load on the truck had been secured by Martinelli in the same manner as was common practice adopted by the defendant for that type of load. iii. The accident occurred on a slight downhill curve with the truck travelling at considerable speed. iv. Only 2 eight millimetre Bradlink 70 chains secured the load to the trailer. v. The two "A" frames used to support the load were not permanently attached to the trailer and were resting on a steel table top, relying on a steel to steel friction coefficient to prevent sliding. vi. There were no forward or rear restraints to prevent the load from moving forward or backward. vii. The load was not secured in accordance with the Load Restraint Guide recommendations issued by the Roads and Traffic Authority of NSW. 20. At the material time the method of securing the load on the truck was inadequate and unsafe. The defendant could have implemented a safer method of securing the load, which was available at the time of the accident. This method consists of placing heavy rubber matting between the "A" frames, increasing the number of chains securing the load, providing fore and aft restraint for the load and providing a check list for the drivers to follow when securing the load. 21. Following the issue of an Improvement Notice on the defendant by Inspector Glass for the defendant to provide positive fixing of "A" frames and to provide sufficient fore and aft restraint to all loads to ensure that such an accident did not recur, the defendant has implemented the method outlined in paragraph 20 above. 22. Investigations further revealed that the poor design of the "A" frames resting on the steel table top of the truck was a contributing factor to the accident. 23. Inadequate training, instructions and supervision were provided on safely securing loads of concrete slabs on the truck. 63 Before Kavanagh J, the matter proceeded by way of the statement of agreed facts, photographs of the truck and its load at the scene of the incident, a publication entitled "Load Restraint Guide" published by the Road Safety Office of the federal Department of Transport and the statement of Mr Wong dated 27 January 2000 (he did not give oral evidence). Counsel addressed on penalty.

64 The prosecutor's then counsel, as to the nature and quality of the offence, put it at a serious level in that "objectively ... the potential risk faced not only by the employees of the defendant but to other road users. But the person most at risk was the driver. There was no rear protection provided between the cabin of the driver and the trailer".

65 The defendant, through its then counsel, put the following submissions in mitigation of penalty : The defendant is a small company employing seven employees. As the last paragraph of Mr Wong's statement makes clear, at the time of the circumstances and I submit that is relevant as to how it might be dealt with on the authorities, at the time of the circumstances the company had not been engaged in the transport industry for a long time. It purchased the business. My friend said it purchased shares in Westco but I think it purchased the business of Westco and it was engaged in transport pre-cast concrete products.

Dealing with the detriment to occupational health and safety, can I immediately say the circumstances were foreseeable. Secondly, can I say the consequences were also foreseeable.

Can I put against that that Mr Wong said in his statement he was not aware of any accident or incident involving the transport of pre-cast concrete. So I would submit the circumstances while they are foreseeable and the consequences were foreseeable, they are relatively unusual in relation to pre-cast concrete.

This is not the worst type of case. There was a system. It was a system of work that was longstanding. It is used apparently in other parts of the industry. There is no suggestion the system that was in place was not enforced and complied with.

There is no suggestion Mr Martinelli was not instructed in the system that was in place.

66 Counsel for the defendant then highlighted the remedial action taken after the incident to prevent recurrences as required by the improvement notice issued by the prosecutor, the early plea of guilty, the obvious contrition as expressed by Mr Wong in his statement for what occurred and, importantly, the co-operation by the defendant with the investigating inspector. Finally, counsel pleaded the defendant's clear record of industrial safety with no prior convictions and the fact it was "really getting out of the industry as a result partly of these experiences". The remaining material relied upon by the defendant was the financial information relating to the deed of company arrangement as referred to earlier.

67 After referring to the applicable principles laid down in the authorities as to the sentencing of offenders for occupational health and safety breaches, Kavanagh J reviewed the parties' submissions and concluded : 47. For an assessment of penalty the court is required to make an assessment of the nature and quality, that is the gravity of the offence, viewed objectively. The Act under a s 49A prosecution requires the court to treat as a single offence more than one contravention of the section in the case of s 15. The contraventions are pleaded as particulars in this summons, namely, the defendant failed to provide a safe system of work as to the loading of the trailer; failed to adequately supervise the loading and securing of concrete slabs and failed to adequately train and instruct its employees in safe loading of concrete slabs onto a trailer. In assessing the nature and quality of the offence, that is the gravity of the offence, I find each contravention is a serious one and the single offence most serious.

48. The court must take into account the subjective features in assessing penalty. The contrition of the defendant has been expressed through counsel and there have been endeavours to ensure a proper and safe system of work for the future has been established. There is now provision for the training of its drivers. The family of the deceased was given care and attention and other staff members were counselled. An early plea of guilty was entered to the charge. However the facts reveal the defendant is attempting to leave the industry and further it is still, through Mr Wong, an employer in NSW. No documentation was tendered to support any ongoing commitment to occupational health and safety. Mr Wong did not give evidence to the Court. The court is required to accept the assurances of counsel as to future safety practices. While it does accept those assurances, it finds the evidence before it of future commitment to safe working, sketchy.

49. The financial status of the company becomes important. While the nature and quality, that is the gravity, of an offence guides the court to the true measure of penalty, in this case there is evidence of absence of prior convictions. The defendant's holding company has since the accident leased two of the plants to another concrete operator and the court was informed is negotiating with a further concrete operator to operate the Plumpton plant. It is taking itself out of this industry. That is no reason for not preparing comprehensive site safety procedures and manuals to eliminate the risk to safety of its workers by the provision of safe systems of work, adequate plant and equipment and proper training of its workers. This type of assurance is not before the Court.

68 As to the financial circumstances of the defendant, her Honour said : 51. After a further adjournment the court has received, without any attached submission, a document purporting to outline the financial situation of Manpac Industries Pty Limited (ACN 058 394 237) formerly trading as Pacific Concrete and Quarries Pty Limited. The documents forwarded to the Court suggest that the company is subject to a Deed of Arrangement which commenced on 19 October 1998. Company payments under the deed, up to 30 December 1999, of $500,000 have been paid to the Deed Administration Fund. The assets and liabilities document post the deed of company arrangement suggests the company has a book value of assets of $3.3 million. The fact there is a deed of arrangement indicates the company has significant financial liabilities. Nonetheless, I am persuaded it is proper in the circumstances to order a significant fine for this offence.

69 In reviewing the total circumstances of the incident in light of the resultant fine of $160,000 imposed by her Honour, we should emphasise that on appeal Mr Archer did not suggest the offence was not serious and added, by reference to the financial evidence, the following submission : A fine of $160,000 would wipe out all the company's assets. Whether that is a fair result is not a matter easily answered having regard to the fact that would be at the lowest end of the scale of penalties for serious offences with mitigating circumstances causing a death.

Her Honour appears to have given no consideration to the early plea of guilty, ...

One looks at the state of affairs at the time of the plea, not what has happened since the lawyers got their hands on the facts. Somebody entered a plea of guilty on the return date of the amended summons. Thereafter matters have taken a different course because of a legal point, ...

The fact the lawyers took a point of substance is not a factor derogating from the advantageous, beneficial or commendable aspects of entering an early plea of guilty.

I understand the course the matter has taken since the plea was entered. The Courts have said a plea of guilty at an early stage is a matter to be taken into account or discount. I put it no more highly than that - and there was a plea by the wrong defendant.

70 The relevant principles to apply in sentencing offenders for offences against occupational health and safety legislation have been oft stated: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at pp 472-476; Fletcher Construction (91 IR 66 at pp 77-81); Capral Aluminium (49 NSWLR at pp 636, 99 IR at p 51); and WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at pp 712-714, (2000) 100 IR 64 at pp 75-76. In Warman International (80 IR at p 339), a Full Bench of the Court stated the fundamental approach, in a manner followed in later cases, in the following way : The approach to the determination of penalty in cases such as these is now well settled. The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high.

The approach to be adopted by a sentencing judge was discussed by the Full Court in Alcatel Australia Ltd v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at pp 106-107. We agree with the observations there made, particularly that in imposing penalty the sentencing judge must have regard to matters such as the making of a plea of guilty, co-operation of the accused with the WorkCover Authority, expressed contrition and measures introduced by the defendant to overcome deficiencies in safety which the accident had highlighted.

71 Whilst the principles may readily be stated, their application in particular cases not infrequently gives rise to difficulties; this is such a case. The difficulty here involves the interaction between, on the one hand, the objective seriousness of the offence, that is its nature and quality, and, on the other, the subjective features in mitigation of what otherwise would be an appropriate penalty. The balance between the two categories in the factual context of a particular offence in terms of the primacy of one over the other was the subject of the following comment by the Full Bench in Lawrenson Diecasting (90 IR at p 475) : As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

72 Those comments from Lawrenson Diecasting were followed with approval in Fletcher Construction (91 IR at p 77); Capral Aluminium (49 NSWLR at p 636, 99 IR at p 51); and Profab Industries (49 NSWLR at p 712, 100 IR at p 75).

73 We have reviewed the reasons given by Kavanagh J for concluding that the subject offence, as her Honour said, was "most serious". We do not disagree. It is plain that what occurred was readily foreseeable, as was conceded before her Honour by the defendant's then counsel, where the appellant failed to provide sufficient and adequate fore and aft restraints to the load and, importantly, where it failed to provide adequate supervision, training and instruction to drivers in the securing of loads to be transported on public thoroughfares. Of course, the manifest dangers and risks to general users of the roads in unsafely secured loads being so transported adds to the seriousness of the offence. We have very much in mind too the submission by the appellant on appeal when Mr Archer put that the fine of $160,000 imposed by her Honour "would be at the lowest end of the scale of penalties for serious offences with mitigating circumstances causing a death". In light of a maximum penalty for the offence of $550,000, we accept the force of counsel's submission. However, Mr Archer identified two areas in which he submitted her Honour erred in assessing the particular circumstances of the defendant, namely, the early plea of guilty and its financial situation.

74 As to the objective seriousness of the offence, and even given the qualitative assessment as being "most serious", we are unable to put it as her Honour seems to have done at about one-third of the maximum fine available of $550,000. In the circumstances, we consider the proper level to be in the order of one-fifth. In doing so, we have in mind that the sentencing process requires an assessment of the relative seriousness of the offence in relation to the worst case for which the maximum penalty is provided: see Camilleri's Stock Feeds (32 NSWLR at p 698 per Kirby P, with whom Campbell and James JJ agreed). Here, we apprehend her Honour reached the higher assessment by viewing the single offence charged in some way as constituting three offences in terms of the separately identified matters in the particulars. As her Honour said - "In assessing the nature and quality of the offence, that is the gravity of the offence, I find each contravention is a serious one and the single offence most serious". True it is her Honour in reasoning the matter referred to "the offence" but in terms of "each contravention" in the particulars. It is true also, as her Honour noted, that "a s 49A prosecution requires the court to treat as a single offence more than one contravention of the section in the case of s 15." Her Honour referred in that respect to the contraventions particularised as being that "the defendant failed to provide a safe system of work as to the loading of the trailer; failed to adequately supervise the loading and securing of concrete slabs and failed to adequately train and instruct its employees in safe loading of concrete slabs onto a trailer". Viewed cumulatively, her Honour clearly elevated the relative culpability of the defendant in assessing the objective seriousness of the single offence and, in our view, thereby fell into error.

75 Section 49A of the Occupational Health and Safety Act provides for present purposes : 49A Multiple contraventions of Part 3 (1) More than one contravention of section 15, ... by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) ... (3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence.

76 It seems to us the error made by her Honour, one which would explain the higher assessment at first instance compared to the lower assessment on appeal, arose from the apparent failure by her Honour to give full weight to the fact that the alleged failures here, as s 49A(1) says, "arise out of the same factual circumstances". In other words, her Honour in assessing the nature and quality of the single offence "double counted" the contraventions found. This type of problem of multiple contraventions was considered recently by a Full Bench of this Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181. There, it should be acknowledged, the issue was common elements in multiple offences under s 15 and s 16 but where each single offence charged contained, as in the present case, multiple failures (or contraventions) and the issue for consideration was the application of the principle of totality. Nevertheless, we think the approach stated by the Full Bench to that problem is conceptually of assistance in resolving the present issue of multiple contraventions being charged as a single offence because, after all, in both situations the aim must be to avoid excessive or double punishment for common elements. It was observed by the Full Bench in that case (at par [36]) that "where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred".

77 Our identification of the essential element in the present charge was the defendant's failure to provide a safe system of work as to the loading of the pre-cast concrete panels onto the trailer of the truck; the elements of failing to provide adequate supervision, training and instruction in the safe loading of product were, in our view, very much subsidiary to the essential element of the system of work itself. So much is established having in mind, as the statement of agreed facts recorded, "the load on the truck had been secured by Martinelli in the same manner as was common practice adopted by the defendant for that type of load". In the challenged decision (at par [43]), her Honour, in finding the system of work to be inadequate, commented that in using the system inherited from the previous operator "very little was done by the defendant to assess the potential risks associated with the inherited loading practices of the trucks which it adopted when it purchased the related company". The fundamental flaw in the system of loading was, therefore, merely perpetuated by supervision, training and instruction, albeit inadequately so, in an unsafe system of work.

78 The approach of Kavanagh J in considering the features subjective to the appellant have been stated above. In our review of them, we are satisfied her Honour properly approached the matter in terms of principle. The two aspects, however, in which Mr Archer said her Honour erred were in respect of the plea of guilty and the assessment of the appellant's financial situation. We deal with each of those in turn.

79 Her Honour explicitly noted (at par [48]) that "an early plea of guilty was entered to the charge". Her Honour then added (at par [48]) : However the facts reveal the defendant is attempting to leave the industry and further it is still, through Mr Wong, an employer in NSW. No documentation was tendered to support any ongoing commitment to occupational health and safety. Mr Wong did not give evidence to the Court. The court is required to accept the assurances of counsel as to future safety practices. While it does accept those assurances, it finds the evidence before it of future commitment to safe working, sketchy.

80 In R v Thomson; R v Houlton (2000) 49 NSWLR 383, the Court of Criminal Appeal formulated guidelines to apply in imposing a sentence where a plea of guilty was entered in respect of an offence against a law of the State. The guidelines so laid down have been adopted by this Court in respect of offences against the Occupational Health and Safety Act: see for example Crown (Department of Education and Training) v Keenan (at par [41] and cases cited therein); see also s 22 of the Crimes (Sentencing Procedure) Act 1999. We affirm the appropriateness of so following the guidelines laid down by the Court of Criminal Appeal, the terms of which are (49 NSWLR at p 419) : (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

... The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate.

81 In this case, we are satisfied the appellant received at first instance full recognition for the early plea of guilty in accordance with the guideline judgment. However, the plea is to be seen in a situation where it was sought, albeit unsuccessfully, to withdraw it and then, on appeal, to challenge the decision refusing its application to do so. We have to say, therefore, that the value of the contrition and utilitarian aspects of the plea is diminished. We are prepared, as we think her Honour did, to give appropriate weight to the guilty plea having been made reasonably early because, as we have said, it was the new company and not the true defendant which sought to withdraw the plea. Whilst we reject Mr Archer's submission that her Honour appeared to give no consideration to the early plea of guilty, we propose to assess it at a level consistent with the circumstances as we have found them.

82 As to the treatment of the financial situation of the appellant, we agree with Mr Archer that Kavanagh J misunderstood the evidence - it is plain, contrary to what her Honour found, that the limited documentation available to her Honour showed the appellant's assets at the relevant time were not $3.3 million but only $31,000. As detailed earlier in these reasons, her Honour seems to have read the wrong column of figures in the statement of assets and liabilities. It emerges from par [51] of the judgment at first instance that her Honour was given inappropriately limited assistance by the appellant as to the financial evidence it relied on at the trial. In the result, and even though her Honour indicated that the appellant had "significant financial liabilities", the finding it was "proper in the circumstances to order a significant fine for this offence" must be tempered. As Mr Archer submitted, "the imposition of a fine of $160,000 on a company with net assets of $31,000 is demonstrably oppressive". Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p 339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p 333; and Profab Industries (49 NSWLR at p 714, 100 IR at p 76).

83 However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp 209-210, Wright J, President observed : ... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...

84 We are of the opinion, in light of the evidence as to the financial situation of the appellant, that the quantum of the fine imposed by Kavanagh J was indeed manifestly excessive and, therefore, the ground of appeal in that respect has been made out.

85 Taking into account our assessment of the nature and quality of the subject offence as being about one-fifth of the maximum degree of seriousness, we would allow a discount for the relevant subjective considerations affecting the appellant in the order of 18 per cent. In the result, we consider an appropriate fine to impose on the appellant for the offence to be $90,000.

86 As to costs, the appellant has been unsuccessful on the primary matters argued on appeal as to conviction, and which occupied so much of the hearing, but has been successful in obtaining a reduction in the sentence to a not insubstantial degree. We have in mind also the financial circumstances of the appellant. Whilst it is appropriate for the appellant to pay the respondent's costs of the appeal, we think it would only be reasonable to limit those costs to 80 per cent of what the costs would otherwise be on a party-party basis.

1. The appeal in relation to the severity of penalty is upheld, otherwise it is dismissed. 2. The fine imposed at first instance is vacated and in lieu thereof a fine is imposed on the appellant, with a moiety to the respondent, of $90,000. 3. The stay of the challenged decision granted on 31 May 2000 is lifted. 4. The appellant is to pay the respondent's costs of the appeal in the amount of 80 per cent of the costs incurred on a party-party basis.

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