St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW

Appeal - Occupational Health and Safety - Appeal allowed with respect to one particularised offence only - Appeal upheld for purpose of re-sentencing - Whether re-sentencing of appellant appropriate in "interests of justice". CATCHWORDS: Held - Alteration of sentence not necessary - Re-sentencing not appropriate - Appeal dismissed

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Latoudis v Casey (1990) 170 CLR 534 CASES CITED: St Hilliers Contracting Pty Ltd v Workcover Authority of NSW [2007] NSWIRComm 39 Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor [2005] NSWIRComm 454

HEARING DATES: (Written submissions) 1 June 2007

APPELLANT: Ms S Hedley Colin Biggers & Paisley

RESPONDENT: Mr D O'Neil of counsel Carroll & O'Dea

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Thursday 28 June 2007

St Hilliers Contracting Pty Ltd v Workcover Authority of NSW (No 2)

Application by St Hilliers Contracting Pty Ltd for leave to appeal and appeal against the decision of Industrial Magistrate Reiss given on 30 January 2006, and orders made on 10 March 2006, both given in Matter No CIM 20159326/03

1 On 20 April 2007, this Court granted leave to appeal, and allowed the appeal by the appellant, St Hilliers, in certain respects, against the decision and orders of Industrial Magistrate Reiss, both given in Matter No CIM 20159326/03: St Hilliers Contracting Pty Ltd v Workcover Authority of NSW [2007] NSWIRComm 39 ("St Hilliers v Workcover").

2 The background to the appeal is as follows. During 2002, the defendant, St Hilliers, was principal contractor on a building project ("the site"). On 26 July 2002, Mr Openshaw, a contractor, drove a concrete mixer truck into a concrete portal just inside the driveway to the site. Mr Openshaw sustained minor injuries, and his vehicle was damaged, as a result of the incident. The facts of the case are summarised at [4] in our earlier judgment. 3 WorkCover subsequently charged the defendant with an alleged breach of s 8(2) of the Occupational Health and Safety Act (NSW) 2000 ("the Act"), on the basis that it had failed to provide and maintain safe systems of work to ensure safe access to the building site. The "Short Particulars" set out in the Court Attendance Notice initiating the relevant proceedings, outlined two specific particulars of the offence alleged to have been committed by the defendant; namely, (a)(i) a failure to maintain closure of the relevant entrance to the site, and (a)(ii) a failure to pass on proper information and warnings concerning access to the site. 4 On 30 January 2006, Industrial Magistrate Reiss found the defendant guilty, and, on 10 March 2006, entered a conviction against the defendant, imposed a penalty of $25,000, and made other incidental orders. 5 In St Hilliers v WorkCover, the Court granted leave to St Hilliers to appeal the decision and orders of Industrial Magistrate Reiss on the basis that proper consideration was not given by his Honour to the defendant's submissions regarding the availability of statutory defences under s 28 of the Act. The Full Bench then considered the availability of the relevant defences, finding that the defence under s 28(a) of the Act was available to the defendant with respect to the offence of failing to maintain closure of the relevant entrance ((a)(i) (short particulars)). Section 28(a) provides that: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if a person proves that: (a) it was not reasonably practicable for the person to comply with the provision 6 The Full Bench, at [35] - [36], found that it was not reasonably foreseeable, given the context surrounding the events in question, that access to the site would occur as it had in this instance. In determining that the defence under s 28(a) was made out by the appellant, the Full Bench relied upon the decision of Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182, where, at [87]-[88], it was stated that 'if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event'. Ultimately, the appeal was allowed by the Court in this respect only.

7 Having noted that the appellant was successful on appeal with respect to the first particularised offence, the Full Bench then stated, at [76], that there is a real question in these circumstances whether the appeal should be upheld and the related question as to whether, if the appeal is upheld, any re-sentencing is required. We consider that the interests of justice in these circumstances dictate that we uphold the appeal for the purposes of re-sentencing St Hilliers because the basis of the conviction being entered is now substantially different to that originally found.

8 This judgment concerns consideration of whether the appellant ought to be re-sentenced, and whether the appeal ought to be upheld for this purpose. 9 At the conclusion of the judgment, the Court had indicated that it wished to hear from the parties on the question of re-sentencing and costs. The parties having subsequently indicated that they had reached an agreement on these matters, the Court then directed the parties to file and serve written submissions in this regard, with a view to the Court considering, with the consent of the parties, whether to decide the matter on the papers or further hear the parties. Joint written submissions were filed by the parties on 31 May 2007. Having had the opportunity to consider the written submissions, we are satisfied that the matter may be dealt with without further oral hearing. Submissions 10 The parties, in their joint submissions, dealt with both the question of re-sentencing and of costs. 11 Turning first to the submissions made in relation to re-sentencing, neither party sought an alteration of the sentence imposed at first instance. The parties indicated in their written submissions that there was no basis upon which to re-sentence the appellant. Although the appellant has now been found guilty with respect to only one of the particularised offences, the penalty of a fine of $25,000 is "clearly not an excessive penalty", according to the parties. The Court has determined that the appellant had failed to take adequate steps to address the foreseeable risk of unsafe access to the site in question, having found that the appellant did not have any defence available to it under s 28 (at least with respect to the second of the particularised offences; namely, a failure to provide relevant information to Mr Openshaw). The parties also noted that the Court, at [43], had referred to the "gravity of the potential consequences" of failing to inform Mr Openshaw, and indicated that the actual injuries sustained by Mr Openshaw in this instance were not indicative of the "extent of the gravity of the risk", a "risk of serious bodily injury". They further submitted that the fact that the respondent has succeeded with respect to one particular only in this matter provides no basis for re-sentencing, as the respondent "only ever needs to succeed on one particular, not all particulars".

12 We note that, in their written submissions, the parties raised a jurisdictional matter in relation to the power of this Court to sentence in an appeal under s 197 of the Industrial Relations Act 1996. Section 197(2) of the Industrial Relations Act provides that certain provisions of the Crimes ( Appeal and Review) Act 2001 apply to any appeal referred to in s 197(1). The parties submitted that the relevant provisions appear to allow the Court to vary a sentence in an "appeal against sentence" only, but not in an "appeal against conviction". However, the provisions do not preclude the Court from remitting a matter the subject of an appeal back to the Local Court "with such directions and recommendations as it considers appropriate" (s 197(4) Industrial Relations Act). 13 However, the parties contended, in their joint submissions, that this jurisdictional issue does not arise for determination because neither party is seeking a variation of sentence in this instance. We agree with this contention, and do not consider that there is a need to make any further determination in relation to this issue.

14 The parties suggested that the appropriate course for the Court to take, in this instance, "from a jurisdictional view", was to amend order (2) made at [77] of St Hilliers v WorkCover to provide that the appeal be dismissed. 15 The parties also provided submissions as to costs in relation to proceedings at both first instance, and on appeal. They indicated that the costs order made at first instance ought to stand. (We note that at first instance, it was ordered that the defendant pay the prosecution's costs, as agreed, or, in the absence of agreement, as ordered by the court.) 16 The parties, however, submitted that each should bear their own costs in relation to the appeal proceeding. Referring to authority for awarding costs on an "issues based approach" (see McHugh J in Latoudis v Casey (1990) 170 CLR 534 at 569-570), the parties referred to the fact that the appellant had succeeded on appeal on a "significant issue". They further stated that, although it is not the case that a prosecutor is only entitled to an award of costs "if each and every particular is proven", costs may be "apportioned - or reduced - in certain circumstances": WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor [2005] NSWIRComm 454 at [5] to [13], and also noted that there was no "finding of failure on appeal to prove the charge. There was only a failure to prove one of the two particulars". Consideration 17 The first question for this Court remains to be whether the appellant ought to be re-sentenced, given the findings of error set out in the appeal judgment. In that judgment, the Court indicated its concern with ensuring that the "interests of justice" are appropriately served in this matter, given that the conviction then entered by the Court was "substantially different to that originally found". Whilst the Court has had regard to the common position of the parties in this matter, as outlined in their joint submissions, it is necessary that the Court also undertakes its own evaluation of the appropriateness of the penalty imposed upon the appellant, as it now stands, and determines whether the appellant ought to be re-sentenced. 18 In light of the parties' submissions, and having had regard to the factual material at first instance, the decision at first instance and on appeal and the joint position of the parties, we find that it is not appropriate to make any alteration of the sentence originally imposed, nor appropriate to re-sentence the appellant.

19 Further, we accept the submissions of the parties as to costs as being reasonable and appropriate in the circumstances of this case.

20 In all the circumstances, we consider that the appropriate course to take is that set out in para 14 of the joint submissions of the parties; that is, that the second order made in St Hilliers v WorkCover, at [77], be amended to provide that the appeal be dismissed. We therefore make the following orders:- 1. That the second order made on 20 April 2007 in Matter No IRC 842 of 2006, St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39, be varied as follows: The appeal is dismissed. 2. There shall be no order as to costs for the appeal (the costs order for first instance proceeding, entered on 10 March 2006 by Industrial Magistrate Reiss in Matter No CIM 20159326/03, shall stand). ______________

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