McCarthy v Sell & Parker Pty Ltd [2000] NSWIRComm 273 | Case summary

JUDGMENT OF THE COURT [2000] NSWIRComm 273 1 These proceedings involve an application for leave to appeal and, subject to leave being granted, an appeal against a decision of Ms P O'Shane LCM sitting as an Industrial Magistrate, given on 31 July 2000. 2 The proceedings before her Worship related to a prosecution pursuant to s 15(1) of the Occupational Health & Safety Act 1983 in which it was alleged that the respondent, who was the defendant in those proceedings, being an employer, did fail to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Warren Knight, in that the defendant failed to provide or maintain a system of work that was safe and without risk to health; and further that the defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of the defendant's employees. 3 The particulars of the offence included the following: On the said date at the said site Mr Warren Knight, in company with another employee of the defendant, was attempting to move a forklift truck which had become bogged, by attempting to tow the forklift truck by using a 10 tonne tipper truck. The defendant had not prescribed a safe or any system of work for the carrying out of this task. The defendant had provided no information, instruction and training to Mr Knight as to the safe process in which to carry out the task of towing the forklift. Whilst in the course of attempting to move the forklift truck, the 10 tonne truck reversed squashing Mr Warren Knight between the rear of the forklift truck and the rear of the 10-tonne truck. In the subject accident Mr Warren Knight suffered bruised ribs, crushed muscles, a swollen liver and a large haematoma. 4 The respondent entered a plea of guilty to the charge and the matter proceeded by way of a statement of facts agreed by the parties. In the result her Worship found that the offence was proven but, having deemed it inexpedient to inflict a punishment, dismissed the charge pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. In coming to this decision her Worship made certain observations which included the following: I noted all of the matters that you raised in submissions, Mr Britt. I note the early plea and the co-operation of the company with the WorkCover Authority. I also noted that the company has been in business for a long time and I noted that there are only two matters on the record and those are now of some age. I accept your submission that it [is] an inherently dangerous industry and I certainly note your submission that this is the first time that the business has come to the notice of the authorities under the occupational health and safety legislation. There is only one thing that concerns me with its implementation of occupational health and safety issues. Apart from ensuring that it has a policy with respect to such matters as towing which was at the core of this particular incident leading to this matter coming before the Court and the fact that employees receive a copy of the policy and acknowledge it by means of signing the same, it seems to me that the company could go some distance further in ensuring that not only do employees have a copy of the documents but that they are actually taken through the information so as to ensure that they are fully aware of what the concerns of the company itself are with respect to occupational health and safety. Those measures which the company is hoping to implement in terms of ensuring that all workers abide by the policies, that is, that there is a practice which meets the theory, if you like, the policies in theory, have to [be] implemented in practice and that can only be done provided that the workers are fully aware of those matters and that there is some sort of monitoring of the implementation of those practices and it seems to me that you in fact told me twice about the measures that the company has taken since this incident in an attempt to obviate these sort of circumstances arising again. 5 The appellant, the prosecutor in the proceedings before her Worship, now seeks leave to appeal and to appeal pursuant to s 47 of the Occupational Health and Safety Act and s 197 of the Industrial Relations Act 1996 on three grounds. First, that the penalty was manifestly inadequate having regard to the objective circumstances of the offence. Second, the magistrate in dealing with the matter in the way she did gave undue weight to factors subjective to the defendant. Third, her Worship failed to raise with the prosecution or the defendant that consideration was being given to the exercise of the discretion under s 10 of the statute. Related to the last ground is the consideration that the prosecutor was not called upon to make any submissions on sentence. 6 In support of its application for leave to appeal the appellant in its Notice of Appeal submitted that the appeal raised important issues concerning the procedure to be adopted by a sentencing court when exercising the discretion under s 10 and important issues concerning the role of prosecutor under the Occupational Health and Safety Act . The relief sought in the Notice of Appeal was the quashing of the order under s 10 of the Crimes (Sentencing Procedure) Act and that the Full Bench of this Court determine the appropriate penalty to be imposed in all the circumstances. 7 When the matter came before the Court for the purpose of directions counsel for the appellant indicated that she was also mentioning the matter for the respondent. The Court was informed that the respondent had advised the appellant in writing through its representative, the Australian Industry Group, that it consented to the decision and orders at first instance being quashed and the matter remitted to another industrial magistrate for the rehearing of the plea. 8 In light of the requirement in the Industrial Relations Act for leave to appeal being granted in matters such as the present: see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246, the parties subsequently filed proposed consent orders, together with an appeal book as to the proceedings at first instance. These documents were filed in furtherance of the submissions of counsel at the directions hearing that the parties were prepared for the Court to deal with the appeal without a formal hearing in light of the unusual situation arising from the respondent's consent to the appeal being upheld. The consent orders proposed by the parties are: 1. That the order under Section 10 of the Crimes (Sentencing Procedure) Act 1999 in matter no. 20080028/00/2 be quashed. 2. The matter be remitted to another Industrial Magistrate for a re-hearing of the plea and determination of penalty. 3. That the Respondent and the Appellant each pay their own costs of and incidental to these proceedings. 9 We have given consideration to the decision made by the learned magistrate and to the evidence and submissions before her Worship. We have also taken into account the fact of the consent orders proposed by the parties, and the nature of the orders proposed having regard to the parties being represented by experienced counsel and advisors. Giving those matters due weight and also having regard to the objective circumstances of the offence as revealed in the proceedings at first instance, and notwithstanding the pertinent subjective factors referred to by her Worship which the respondent was entitled to rely on, we conclude that the sentencing discretion at first instance miscarried and the appeal should be upheld. A Full Bench of this Court has recently considered the approach that should be adopted by judges of this Court in considering whether the benefit of the now repealed s 556A of the Crimes Act 1900 should be provided to defendants in proceedings under the Occupational Health and Safety Act : WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. It was concluded that the exercise of the discretion under s 556A must be considered as extraordinary and highly exceptional. Although that observation was made in relation to proceedings before this Court it should be also considered generally the approach appropriate in proceedings before an Industrial Magistrate pursuant to s 47 of the Occupational Health and Safety Act . The replacement of s 556A by s 10 of the Crimes (Sentencing Procedure) Act has not altered the approach in principle, although by its very nature the discretion must be exercised in the light of all the relevant individual circumstances before the Court in the particular matter. 10 However, because of the rare circumstances in which the benefit of s 556A would have been considered in occupational health and safety prosecutions in the past, and the similar rarity with which s 10 might now be applied, it would be inappropriate for a judicial officer to consider the application of the provision without alerting the prosecution to the possibility that the Court might proceed under it. The circumstances illustrated by this appeal also show that as a matter of prudence the defendant should also be alerted to that possibility because the inappropriate exercise of the discretion under s 10 in favour of the defendant may be a crucial concern to the defendant because it may, as it did in Profab and has in this case, lead to an appeal which was only necessary because of the incorrect approach taken at first instance. 11 It is finally to be observed that the offence to which the respondent entered a plea involved objective circumstances of some seriousness. It is inappropriate to express any detailed view on this matter because the matter will have to be considered afresh by another Industrial Magistrate. However, the proceedings involved a breach of the safety laws involving the use of a forklift truck and proceedings arising from the use of such equipment occur with some frequency. The relevance of that situation to the objective seriousness of the offence requires no restatement: see, for example, the judgment of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Limited (1998) 82 IR 80. 12 We accordingly make the following orders in determination of these proceedings: 1. Leave to appeal granted and appeal upheld. 2. The decision of the Industrial Magistrate and the order under Section 10 of the Crimes (Sentencing Procedure) Act 1999 of 31 July 2000 in Matter No 20080028/00/2 are quashed. 3. The matter is remitted to another Industrial Magistrate for rehearing of the respondent's plea of guilty and for determination of penalty. 4. The respondent and the appellant each pay its own costs of and incidental to these proceedings.

McCarthy v Sell & Parker Pty Ltd

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