Morrison v Powercoal Pty Ltd & Anor.

Morrison v Powercoal Pty Ltd & Anor. - [2005] NSWIRComm 61 - NSWIRComm 2005 case summary — Zoe

[11]

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348 DPP v Esso Australia Pty Ltd [2001] VSC 263 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384. Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Ltd & Anor. (No. 2) [2005] NSWIRComm 6 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342 Morrison v Powercoal Pty Ltd and Anor [2004] NSWIRComm 297 CASES CITED: R v Leonard Raymond Moon [2000] NSWCCA 534 Regina v Way [2004] NSWCCA 131 Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440 Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 Veen v The Queen (No 2) (1988) 164 CLR 465 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122

[55]

29 Schmidt J considered a similar submission to that put by the corporate respondent in this appeal in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245. In rejecting the submission Her Honour observed at [24] - [26]: [24] In my view, two considerations inevitably lead to the conclusion that it is record at the time of conviction, rather than at the time of commission of the offence, with which s 51A is concerned. As noted, inevitably there is a delay between the commission of an offence and conviction. In some cases, as here, the delay can be of a number of years duration. To construe s 51A(1) as being concerned with a defendant's record at a time when the offence in question was committed, requires the introductory words 'A Court that convicts a person of an offence (the 'current offence') against this Act may, if the person has previously been convicted of an offence …", to be read as providing "A Court that convicts a person of an offence (the 'current offence') against this Act may, if, at the time the offence was committed , the person has previously been convicted of an offence". [25] It has long been accepted that it is wrong to read into a statute words which are not there, in the absence of clear necessity: see for example Thompson v Gool & Co [1910] AC 409 at 420. Here, it is impossible to see such a necessity arising. The construction for which the parties contend, would plainly not be necessary, in order to give effect to the purpose of the section. Nor is it possible to regard the inclusion of the words "at the time the offence was committed" as being necessary to give effect to that purpose. It also cannot be concluded that the inclusion of those words are necessary, as involving a "reading down" of words of general description, as discussed, for example, by Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687-688. [26] The second consideration is that the construction for which the parties contend, would appear give rise to consequences which do not accord with the intent of the section. The particular circumstances of this defendant illustrate this point, although obviously questions of construction cannot turn only upon the circumstances of a particular offence or defendant.

[70]

42 In Fox v GIO [2002] 56 NSWLR 512; (2002) 120 IR 401 Walton J, Vice-President reviewed the principles of statutory interpretation. His Honour observed at [45] - [47]: [45] The interpretation of the Victorian equivalent of s15AA of the Acts Interpretation Act 1901 (Cth), s35(a) of the Interpretation of Legislation Act 1984 (Vic), was discussed by Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235 par 19: "[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes." [46] The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. [47] In Langan v Ceramiclab Pty Ltd (2000) 97 IR 80 the Full Bench of this Court referred to the need to interpret provisions in context at 84 - 85 [13]: "However, the submissions of the applicant earlier referred to are subject to another important consideration arising from the need to interpret the subject provisions in context. That is, the need, in appropriate cases, to interpret a word or phrase on the basis that its meaning is to be defined from its context. See, for example, Pearce and Geddes, Statutory Interpretation in Australia , (4th edition, 1996) at 99: '[4.14] Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that a reader will not read the document word by word but will look at whole phrases or sections. Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 put it thus: "Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.'''

[83]

54 The Court of Criminal Appeal considered the approach to be taken in sentencing as to conduct of a defendant subsequent to a guilty finding in R v Boney (unreported, NSW Court of Criminal Appeal, Mahoney JA, Grove and Newman JJ 60342 of 1991, 22 July 1991), where Grove J, with whom Mahoney JA and Newman J agreed, stated at 4: ... His Honour observed that the applicant, who appeared for sentence in 1991, had been before courts in the period since the offences which occurred in 1987. His Honour noted these (which I shall describe as interim) and observed that other persons with whom he had to deal for offences arising out of the Brewarrina incident were in similar situations and commented: "What I have already said applies particularly to him as to his conduct since this event". The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR. 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant." The same approach was manifested in this Court in Reg v Hutchins (1957) 75 WN NSW page 75 where Street CJ said: "I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth." His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence.

[142]

104 In referring to specific deterrence, the Full Bench in Capral Aluminium stated at [77]: 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 105 This is not a case where a defendant had failed to acknowledge that its systems of work were defective and did nothing to remedy those defects. However, the corporate respondent in this case conducted a large enterprise in one of the State's more dangerous industries. In the normal course we would have considered some weight should have been given to the need for specific deterrence, notwithstanding the extensive steps taken by the corporate respondent to improve its approach to occupational health and safety as described in Mr Myors' affidavit. We note, however, that the corporate respondent is no longer an operational entity (its shares were sold to Centennial Coal Company Limited in August 2002), a matter not referred to by either party in the context of specific deterrence. We consider the appropriate course in the circumstances is that we do not include in any penalty an element for specific deterrence.

[152]

115 Senior counsel for the appellant drew our attention to the decision of Cummins J in DPP v Esso Australia Pty Ltd [2001] VSC 263. At [40]-[48] Cummins J considered the question of whether the defendant had accepted responsibility for the "fatal and injurious events" that occurred on 25 September 1998 when an explosion occurred in a gas processing facility at Longford in Victoria and two employers were killed and eight seriously injured. The defendant was prosecuted under s 21(1) of the Occupational Health and Safety Act 1985 (Vic). At [47]-[48] his Honour stated: 47 Then towards the end of plea, after senior counsel rightly had reviewed Esso's otherwise commendable safety record, I asked the following (page 5970, line 2): "I think that leads to this, Mr Titshall. I have no doubt that the many and commendable facts that you have put before me are accurate and true as to your client, but the corollary of what you put to me is this. In relation to the rupture on 25 September and its antecedents, there is a mountain of evidence; a most distinguished former High Court judge with his co-Commissioner made clear and unequivocal findings, as stated in the Royal Commission Report; and a jury of 12 unanimously found proof beyond reasonable doubt of every charge laid against Esso. If Esso is the good corporate citizen you have stated it to be, why does it not accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that, Your Honour," and I replied, "Very well." 48 Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency.

[165]

126 The principle of totality arises for consideration in this case. The corporate respondent was charged with and found guilty of two offences under s 15(1), namely, the assessment charge and the recording and notification charge. The totality principle was recently considered by Full Benches of this Commission in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 and WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. There is no utility in us undertaking any reconsideration of the principle because we consider the exhaustive analyses in the aforementioned cases are correct, except to identify what the principle stands for and that was stated succinctly in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 at [36]-[38] and quoted with approval in Abigroup at [76]: [I]n determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. 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. The principle must also be applied for the reasons stated in Pearce [ v The Queen (1998) 194 CLR 610] and Mill [ v The Queen (1988) 166 CLR 59]. [37] We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. [38] In accordance with Pearce , we must first consider the appropriate penalty for each offence, assessed separately.

[170]

131 The application of s 10 was recently considered at length by a Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259. The Full Bench stated at [57]: [I]t is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s10 of the Crimes (Sentencing Procedure) Act . …Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 58 We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Limited at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal , the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act . Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act , in stark contrast to the matter presently before us where there is a total absence of such reasoning.

[172]

133 In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348, in which Walton J, Vice President determined to apply s 10, his Honour referred to the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38] and [39] where the President considered the construction of s 50 of the Occupational Health and Safety Act: 178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]: Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.

[177]

136 These considerations need to be judged against a number of countervailing facts. First, the opportunity for Mr Foster to became completely familiar with the mine and its operations was limited. Mr Foster did not commence as mine manager until March 1998. The previous manager first briefed him at the mine on 26 March 1998. Consequently, those elements of the charges that refer to periods and/or events prior to March 1998 cannot apply in Mr Foster's case. Second, in relation to the assessment charge, whilst Mr Foster carried out underground inspections he noticed nothing untoward in respect of the state of the roof. He deposed in his affidavit: 57 Prior to pillar stripping commencing in 304 Panel, the first part of this Panel to be extracted was inspected by the Undermanager, Mr Cull. I also inspected this area on 9 July 1998. 58 I was informed by the Undermanager after his inspection that the sequence needed to be changed and pillar one (1) not extracted due to concerns about the poor roof in the roadway adjacent to this pillar. This was discussed with the District Inspector John Beatty on 16 July 1998 and he was quite happy for this minor change in the procedure to occur. 59 My inspection of the face cut-through where the pillar stripping was going to be carried out indicated that the roof was well supported and that there was nothing that would raise any safety concerns with the pillar stripping approach to be carried out. There was nothing to indicate to me at the time the risk posed by the presence of the geological features that created an arch back over 25 cut-through. 60 The pillar stripping method that was carried out in 304 Panel was the same pillar stripping method that was carried out in 7 Northwest Panel (the previous Panel). I had not considered it necessary to perform a risk assessment as the method of mining had not changed from 7 Northwest Panel. This mining method had been introduced prior to my commencement as Mine Manager and was considered safe.

[178]

137 Thirdly, Mr Foster, conscientiously and diligently attended to all of his safety responsibilities in the three and a half months prior to the incident including consultation with Professor Galvin who reviewed the pillar stripping layout for 304 Panel on 3 April 1998 at Mr Foster's request and consultation with Mr Beatty the District Inspector. Further, Mr Foster deposed in his affidavit: 48 The method of partial pillar extraction was already in place prior to my commencement at the Colliery. When I commenced as Mine Manager I satisfied myself as to the safety of the system of extraction being used. I did this by observations and discussions with the previous Manager and the Undermanager. 49 The total pillar extraction method had been utilised at the Colliery for many years, but had been changed to a partial pillar extraction system prior to my commencement as Mine Manager. I understood that the partial pillar extraction method was introduced to minimise the risk to the safety of the miners from wind blasts due to large areas of the roof not falling in total pillar extraction in 5 East Panel. 50 I had previous experience with total pillar extraction methods at Munmorah Colliery, where I had worked for 7 years previously. Partial pillar extraction is a variation of total pillar extraction. I would regard partial pillar extraction as generally a safer system than total pillar extraction which essentially relies on the total collapse of the roof for the future stability of the surface land. 51 On 16 July 1998 District Inspector Mr John Beatty attended the Colliery to discuss the partial pillar extraction approval alterations. We discussed which alterations we could make to the partial pillar extraction sequence without having to formally seek the approval of the DMR. The two changes we intended to make, involved: a) not mining sequence one (1) and b) altering the sequence so that sequence four (4) and five (5) would be mined before sequence two (2) and three (3). 52 Mr Beatty gave his verbal agreement to these alterations. I informed Mr Beatty that an inspection of the roof area of the roadway adjacent to sequence one, by the Undermanager Mr Cull had identified it as having poor roof and was no longer intended to be mined. 53 From observations of the partial pillar extraction system used at Awaba Colliery, it appeared to me to be a very safe system. The breaker props in place appeared to be doing their intended job, up until the time of the incident to Mr Edwards. 54 In my discussions with the employees involved in the partial pillar extraction system prior to the incident, they had indicated to me that they believed that it was a safer system than the previous system of total pillar extraction. 55 In conjunction with the Undermanager and the Mine Surveyor, I reviewed the roof support rules, the break-away rules and the pillar extraction rules for 7 Northwest Panel and prepared rules for mining 304 Panel. As part of this review process a sequence for the partial pillar extraction was developed and these plans and rules were all submitted to the District Inspector on 18 May 1998. To the best of my knowledge the Partial Pillar Extraction method being carried out in 7 Northwest Panel was satisfactory and the same method was to be continued in 304 Panel. 56 At all times prior to the incident I believed at the time of the incident that the intended method of extraction and the support provided by Stook 'X' was adequate to ensure the safety of the crew.

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