The GEO Group Australia Pty Ltd v WorkCover Authority of New South Wales

THE VARIOUS HEARINGS 5Given the brief background outlined above, it is necessary to consider the terms of the judgments that led to the present appeal. The Chief Industrial Magistrate delivered the first judgment in February 2008 in which he determined that the appellant was in breach of s 8(2) of the Act as particularised in the Court Attendance Notice. There was a great deal of evidence as to the appellant's reliance on the knowledge and expertise of the supplier of the Press and the circumstances in which the Press came to be modified, leaving the dies exposed. During the course of dealing with threshold issues, his Honour at [11] noted that the prosecutor had brought one charge under s 8(2) and had not brought two charges in the alternative. The focus had to be on the risk that was present on the date in question and the nature of the offence, which was the failure to ensure that persons were not exposed to such a risk. The risk was identified as a particular hazard to persons not employees of the defendant at the premises. At [15], his Honour noted that the Press had arrived at the appellant's premises with some guarding as part of its original condition but prior to the date of the injury, the guarding had been removed and it was being used in that unguarded state. His Honour noted that the prosecutor alleged that situation constituted a specific particular of the breach, as allegations that the Press was unguarded were not denied. 6His Honour then stated that the second short particular was that the defendant had failed to put in place a safe system of work for bending sheet metal "using the Brake Press" and the third short particular raised the allegation that the inmate did not receive information, instruction and training as to ensure his health and safety while engaged in the task of bending sheet metal "by use of the Press." At [33], his Honour stated that, in the absence of appropriate guarding, the operator of the machine was clearly at risk if, even on one occasion, their co-ordination was less than perfect. Given the lack of guarding it was possible for the machine operator to have their hands within the strike zone of the Press and it was possible for the operator's hands to remain in the strike zone when the foot pedal was depressed. The operator's safety was dependent entirely on perfect concentration and perfect co-ordination. His Honour regarded this as "high risk operation" but the risk had not been identified because no risk assessment had been carried out by anyone, including the appellant. 7Having made these findings, His Honour then went on to state: ... [33] In the absence of a risk assessment, there had been no safe system of work established which was specifically designed to eliminate or control any risks which had been identified. And to the extent that there had been any training or induction afforded to ... or any other operator of the machine, it was clearly not documented as there was no evidence before the Court to support the contention that a training programme existed, and in particular, no training had been provided to Mr ... or to any other person which identified specifically the risks inherent in using the machine in an unguarded state. At its highest, the evidence reveals that when Mr ... was given some elementary instruction in the use of the machine ,,, he was given a general warning that he should be careful where he put his hands. [34] Having considered the submissions made on behalf of the defendant, I find that the prosecutor has established the fundamental ingredients of the offence and this includes the three specific areas of failure identified in the short particulars of the offence set out in the Court Attendance Notice.... 8In August 2009 the Chief Industrial Magistrate delivered Reasons for imposing a penalty upon the appellant. His Honour considered the objective seriousness of the offence, noting that the Brake Press was unguarded and that the appellant had failed to put in place a safe system of work for using the Brake Press and had failed to put in place an adequate system of training and induction in relation to the operation of the Brake Press. It was obvious that the moving parts of unguarded machinery constituted a risk to safety and here the appellant failed to ensure that the Press had been the subject of a specific risk assessment when first commissioned. His Honour stated that the consequence of the failures he found was the creation of "an obviously and readily foreseeable risk to safety." That foreseeable risk could "easily be overcome with remedial steps such as those adopted" by the appellant after the accident. 9His Honour stated that the next step was to ensure the guarding of the machine was not removed. There had been some evidence of the machine operating in such a fashion as to damage the metal: it had been modified but still operated with guarding. After the accident the guarding on the Press had been improved. Such modified guarding was seen as evidence of the simple steps available to the appellant prior to the accident to avoid the risk and the injury that ultimately occurred to an inmate. At [9] his Honour found that the inmate had suffered "a serious amputation injury" with approximately one-third of his thumb being lost. There was "a potential for greater injury" to have been inflicted with his Honour noting that, if the inmate's hand had been positioned further into the machine, there was potential for hand and finger injuries "more extensive than the injury that actually occurred." There was, however, no evidence to suggest that there was a risk of injury to other parts of the operator's body. 10His Honour considered that there was a need for both general and specific deterrence to be reflected in the penalty. In this case there was a need for "a significant general deterrence factor." His Honour noted that he had been provided with evidence concerning the steps taken following the accident and they were described as "impressive" and as indicating a determination on the part of the appellant to ensure that there could be no repeat of the failures found to have occurred in December 2004. In light of this consideration, his Honour was satisfied that there was no requirement for any significant specific deterrence factor to be included in the penalty. 11His Honour then dealt with a number of subjective factors that operated in favour of the appellant by way of mitigation. Those matters included the fact that there had been no prior convictions, the appellant had an excellent industrial record given the size, scope and nature of its operations conducted over a lengthy period and there had been operations in two other States without any convictions under Occupational Health and Safety legislation. The appellant had co-operated with the WorkCover Authority, including providing in-house investigation reports together with a range of factual admissions, demonstrating a willingness to be entirely transparent in response to the incident. The injured person had received immediate first-aid and appropriate medical treatment and the injured person and other inmates had been offered counselling support following the accident. His Honour was satisfied that the appellant was a good corporate citizen providing generous financial and other support to charitable sporting and community groups, not only within the Junee/Wagga Wagga area but also in the broader community. It was accepted that the defendant had demonstrated genuine contrition and remorse. 12His Honour particularly noted that the Junee Correctional Centre ("the Centre") held more than 700 inmates with more than 200 employees. Quite apart from the activities of the industrial section, the core operation involved the accommodation of these inmates, many of whom suffered psychological conditions and many with a history of violence. His Honour was satisfied that the evidence suggested that the safety record of the Centre was "outstanding." The Centre had adopted safety procedures that had received recognition in industry and had received awards as a consequence. Amongst the range of improvements to the safety procedures, the appellant had introduced a specific management role directed to the task of supervising and checking the work of contractors and to ensure that contractors adopted not only acceptable occupational health and safety procedures but complied with those procedures in practice. Those changes satisfied his Honour that the appellant had analysed its failures, pinpointed the gap in its own systems that caused the failures to occur and had devised appropriate improvements to its system to prevent a repetition. In his Honour's view that "laudable response" was entirely consistent with the appellant's general attitude to safety matters evidenced during its operations in New South Wales over some 17 years. 13 It was noted that the appellant had given consideration to safety issues in the contractual arrangements it had made with the supplier of the Press. Those contractual arrangements required the supplier to take a significant role in the preparation of a safe work method procedure and appropriate training and induction to enable inmates to use the machine in an appropriate fashion. Unfortunately, the supplier effectively did nothing in this regard and that was clearly acknowledged by the appellant. His Honour noted that the supplier had not been prosecuted in relation to the unsafe condition of the Press and while that was a matter within the prosecutorial discretion of WorkCover, that fact was "clearly a matter" which could be relevant in the sentencing process. His Honour concluded that this was one of the cases where the non-prosecution of another party gave rise to a valid sense of grievance on behalf of the appellant that should be reflected in the ultimate sentence imposed. 14When his Honour came to fix the amount of the penalty he noted that the maximum fine for the offence was $550,000 but that the Court had jurisdiction to impose a penalty not exceeding $55,000. Having found that the offence was objectively serious and having concluded that there were a number of subjective matters mitigating strongly in favour of the appellant, his Honour imposed a penalty of $65,000 that was reduced to $55,000 in light of the jurisdictional limitation on the Local Court. 15The first appeal proceeded on numerous grounds, including a submission that there had been no contravention of s 8(2) of the Act, there had been an error in dealing with the defences pursued pursuant to s 28 of the Act, that the decision was against the evidence and the weight of the evidence and there had been an error in law in the exercise of the sentencing discretion which "fundamentally miscarried." As to invalidity, the appellant submitted that the charges and particulars did little more than replicate the words of s 8(2) of the Act. At no stage had the prosecutor pleaded or particularised the measures to be taken to avoid the risk. It was accepted that the invalidity ground had not been raised at first instance. It was also argued that the sentence was manifestly excessive having regard to numerous factors raised by the appellant. 16The Full Court accepted that the first particular was valid, holding that the appellant could not have been under any misapprehension as to the measures that the respondent was alleging the appellant should have taken, namely, replacing the guarding that had been removed from the Press. The Full Court characterised the submissions for the appellant as proposing that it had no responsibility for the operation of the Press and that the responsibility lay entirely with the installer and the inmates who were trained by the installer to use the Press. It was suggested by the appellant that it could not have known what measures were necessary to avoid any risk caused by the removal of the guard. 17The Full Court accepted that the second and third particulars were invalid for failing to identify the measure or measures that could have been taken to avoid the risk of injury but that, in any event, the prosecutor was entitled to rely on the first particular which on its own was sufficient to make out the charge. The Full Court then went on to find that the charge was made out on the basis of the first particular and that the Chief Industrial Magistrate erred in finding that the second and third particulars were made out. Apparently, during argument, the prosecutor conceded that the second particular was invalid: the Full Court noted that, on the same reasoning, the third particular was also invalid. 18In relation to the defences, those submissions failed in relation to the first particular. In respect of particulars two and three no submissions were made regarding the defence contained within s 28(a) and the defendant only invoked s 28(b): those defences were no longer relevant in light of the finding of invalidity. 19The consequence of these findings was that the Full Court determined that the Chief Industrial Magistrate had regard to each of the three particulars set out in the charge and as only the first particular survived, the matter was referred back to his Honour for the purposes of re-sentencing, "in light of our decision." In particular, the Full Court noted that the objective seriousness of the offence had to be gauged now by reference to only the first particular. 20In a separate judgment (The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales (No 2) [2011] NSWIRComm 67), the Full Court dealt with the issue of costs and ordered that each party should bear its own costs of the appeal. The Full Court also ordered that the costs order made by the Chief Industrial Magistrate in August 2009 be set aside and the matter of costs of the first instance proceedings be remitted to his Honour for determination. 21In considering the appropriate costs order on the appeal, after citing authority as to the costs discretion, the Full Court noted that the appellant was unsuccessful in having the conviction overturned but was successful in having the sentence re-considered in circumstances where two of the three particulars of the charge (that had been taken into account by his Honour in sentencing) were no longer to be taken into account. The prosecutor had been successful in resisting the overturning of the conviction. That combination of mixed results led the Court to determine that each party should pay their own costs. 22In mid-November 2011 the Chief Industrial Magistrate handed down his decision on the remitted hearing dealing with only the first particular and the penalty to be imposed in light of the fact that the second and third particulars were no longer available to be taken into consideration. In that decision his Honour noted that the prosecutor relied upon the evidence already before the Court with further written and oral submissions. The appellant relied on evidence already before the Court and also relied upon a further affidavit. At [16] his Honour noted that submissions for the appellant included reference to detailed evidence already provided to the Court concerning subjective matters but there had been updated material and developments dealt with in the further affidavit. 23Relying on that affidavit the appellant pressed the significance of the following matters:

• the appellant company was a first offender not only within New South Wales but within Australia where it conducted other Correctional Centres;
• there was extensive co-operation with the WorkCover Authority following the accident;
• the defendant had expressed its genuine contrition;
• the size and nature of the appellant company's undertaking which had grown significantly in the number of employees and inmates since the matter first became before the Court, was emphasised;
• the appellant company was committed to the objects of the Act prior to the accident and significant steps had been taken to put in place new and improved safety procedures after the accident;
• updated material before the Court demonstrated steps taken by the appellant company to conduct itself as a good corporate citizen, including its support for employees and the development of programmes to assist inmates as part of the rehabilitation process and many other steps taken to assist local communities and the broader community with generous participation in a wide range of charitable, educational and sporting activities. His Honour determined that all the previous evidence as to these subjective matters as well as the updated material were to be taken into account in the new sentencing exercise. 24His Honour also noted that, in supplementary oral submissions put for the appellant, the Court was asked to have particular regard to steps it had taken with the supplier/contractor in relation to the use of the Press at the Junee Correctional Centre. It was submitted that the appellant had approached "an external independent expert to provide a Brake Press" and that the arrangements included ongoing maintenance and ongoing responsibilities in relation to the use to be made of the Press. In relation to this submission his Honour stated that, although there was much material as to the contractor during the hearing, he was unable to find any evidence to suggest that the contractor could be described as an "external independent expert." He regarded the failure to call any evidence as to the contractor's expertise as a relevant evidentiary matter. His Honour stated that the conduct of the appellant, in effectively delegating responsibility for the safety of inmates to the contractor, would have been less objectively serious if it had sought and appointed a person with appropriate qualifications and expertise relevant to the technical operation of the Press as well as relevant occupational health and safety procedures appropriate for operating such equipment. 25It was noted by his Honour that, following the first sentencing hearing and at the re-sentencing hearing, submissions for the appellant were to the effect that it was not only entitled to a higher degree of leniency but that it was almost blameless in relation to the offence. It was submitted that the Court had imposed a maximum sentence of $55,000 where that sum represented the jurisdictional maximum. His Honour, however, pointed out that the maximum penalty under the legislation was $550,000 for the first offence and that a fine of $55,000 "might well be described as a penalty at the low end of the scale." Nevertheless, the appellant company submitted that there should be no fine imposed and that the matter be dealt with by way of dismissal pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. 26After recounting these matters at [23] his Honour stated that he was satisfied that the objective seriousness of the offence under s 8(2) was "unaffected by the decision of the Industrial Court of New South Wales on appeal to strike down short particulars two and three of the Court Attendance Notice." Further, his Honour found that, whilst the subjective matters raised by the defendant were made out and were relevant in determining the appropriate sentence to be imposed, there were "no new or significantly altered subjective matters which were not already under consideration and factored in by the Court following the first sentencing hearing." At [24] his Honour said that, having considered the material afresh, he was satisfied that an appropriate sentence in the matter was a fine in the sum of $65,000 that was to be reduced to $55,000 because of the jurisdictional limit. 27His Honour then turned to the issue of costs. The prosecutor had sought costs of the liability hearing, the first sentencing hearing and the current re-sentencing hearing. The appellant submitted that the appropriate costs order would be for each party to bear its own costs in relation to the liability hearing and the first sentencing hearing. Counsel for the appellant noted that the matter had proceeded on two invalid particulars before the Court and therefore the appellant was put to the cost of defending charges that should not have been pursued. The sentencing process had to be repeated because the first sentencing hearing proceeded on two invalid particulars. In relation to the costs for the re-sentencing hearing the appellant would pay the costs of the prosecutor as agreed or assessed by the Court. 28In dealing with these submissions at [28], his Honour noted that the liability hearing found the appellant to be in breach of s 8(2) of the Act. While that finding was the subject of appeal, the finding of liability remained intact. At the first sentencing hearing the Court ordered the appellant company to pay the fine of $55,000 and following a re-hearing on sentence, "the order of the Court remains unchanged." In those circumstances his Honour was of the view that the prosecutor was entitled to an order for costs in relation to the liability hearing, the first sentencing hearing and also the sentencing re-hearing presently before the Court. His Honour then stated: I should indicate that my view of the appropriate exercise of the Court's discretion in relation to costs would have been altered if at the liability hearing and/or the first sentencing hearing, the defendant had raised as issues for determination, the attack on the particulars set out in the Court Attendance Notice which were ultimately upheld on appeal by the Industrial Court of New South Wales. However, those matters were not raised, legal costs were not incurred, and the time of this court was not spent in debating those matters.

CONSIDERATION 29The appellant accepts that, firstly, it is necessary to demonstrate an error in the sentencing exercise undertaken by his Honour, the Chief Industrial Magistrate. The appellant categorises the error as being a constructive refusal to exercise jurisdiction. The appellant developed that argument by reference to the decision of the Full Court that particulars two and three were invalid and the direction to his Honour to re-sentence the appellant having regard to the Full Court's decision. It was submitted that, in failing to make any reduction in the penalty or arriving at a lesser penalty than $65,000, his Honour had not complied with the direction of the Full Court and in that sense had constructively failed to exercise the jurisdiction conferred upon him. 30From a consideration of his Honour's final sentencing decision, it appears that he opted for one of the propositions put in the alternative by the prosecutor. Those alternative propositions proceeded on the basis that the gravamen of the offence was the risk presented by the unguarded Press and that essentially, particulars two and three were subsidiary breaches that did not really add to the gravamen of the offence: particulars two and three were said to be "intrinsically linked" with particular one. It was submitted to his Honour that, in adopting that approach, his Honour was entitled to maintain the original penalty of $65,000 or alternatively, may reduce the penalty to $55,000 which was the effective penalty imposed in the earlier proceedings. 31It was the appellant's submission that this approach was not available. His Honour was required to commence the sentencing process afresh but without considering particulars two and three. That sentencing exercise had to result in a lower penalty than the $65,000 originally set by his Honour and repeated on the re-sentencing hearing. The appellant also rejected the prosecutor's approach that particulars two and three could be treated as being subsidiary to particular one dealing with the failure to guard the Press and that they were clearly different particulars raising issues that stood apart from the failure to guard particular. It was pointed out that, because the measures were not specified in particulars two and three, it could not be asserted that those particulars dealt only with the failure to guard issue or were closely related only to that issue. The result was that there were two very significant particulars that his Honour had taken into account in the first sentencing exercise and when they were not available for the re-sentencing exercise, his Honour could not properly have come to the view that a penalty of $65,000 was still warranted. 32A proper reading of his Honour's first liability judgment, however, does not support the appellant's submission that numbered particulars two and three stood alone and apart from the unguarded Press particular. At [15], his Honour summarised all the particulars and in relation to particulars two and three spoke of both of them in terms of being concerned with the operation of the Brake Press. His Honour described the second particular as a failure to put in place a safe system of work for the bending of sheet metal "using the Brake Press", while the third short particular alleged that there was a lack of information, instruction and training to ensure health and safety while engaged in the task of bending sheet metal "by the use of the Press." His Honour's reference in both particulars to the "Press" used words that did not appear in the Court Attendance Notice (namely, "Brake" in particular 2 and "Press" in particular 3) and is indicative of the manner in which his Honour approached the two numbered particulars. 33Importantly, particular two directly referred to the defendant failing to ensure systems of work for bending sheet metal "by use of the Press" were safe and without risk to health. A perusal of the first liability decision (confirmed by the first sentencing decision) demonstrates that the focus of the case from the prosecution's submissions was the unguarded machine and indeed, particulars two and three were treated as arising in that context. The appellant's approach was to allege that the entity primarily responsible for the accident was the supplier of the Brake Press and considerable time and effort was expended in pursuing that approach. The appellant actually addressed s 28(b) defences in relation to particulars two and three, a quite impossible task if the appellant's general submission is accepted, namely, that particulars two and three stood alone and addressed entirely different matters of which they had no knowledge because of the failure to specify the measures to be taken. 34Quite apart from the matters referred to in the previous para, the appellant's stance on the particulars ignores the structure and content of the Court Attendance Notice as set out in [2] of this judgment. Under the heading "Details of offence", the Notice firstly provided a description of the offence by repeating the provisions of s 8(2) of the Act. The time, date and place of the offence were then set out in the next boxes with the third box setting out "short particulars." That section was introduced by using, in effect, the words of s 8(2), then referring to the time, date and place of the offence and then included details by reference to the injured worker being in the process of bending sheets of steel using the Brake Press and how, inadvertently, he had activated the Press causing the tip of his right thumb to be severed and that failure to prevent exposure to risks to safety arose "by reason that" and then the three numbered paras were set out. That structure of the Court Appearance Notice squarely places the three paras under "short particulars" of the offence by reference to the process that the inmate was involved in, namely, sheet metal bending using the Press. Once that context is understood it is clear that the three numbered paras were all drawn by reference to use of the Brake Press for sheet metal bending and only that process: the essence of the offence was the failure to guard the machine and to take various steps to ensure that the guarding was effective. 35It is difficult, nevertheless, to accept that the two particulars held to be invalid added nothing to the objective seriousness of the offence. For instance, it is clear that a defendant may be guilty of failing to guard a machine but may otherwise have provided information, instruction and training in relation to the operation of a particular piece of machinery. 36His Honour clearly addressed findings in relation to numbered particulars two and three in [33] of the first liability decision. His Honour first noted that this was a "high risk" operation where no risk assessment had been carried out. His Honour observed that, in the absence of a risk assessment, no safe system of work had been established - thus, clearly addressing particular two. His Honour then went on to state that, to the extent that there had been any training or induction, it was not documented. There was no identification of the specific risk inherent in using the machine in an unguarded state - comments addressing particular three. 37Although his Honour's process of reasoning is likely to have treated particulars two and three as submitted by the prosecutor, the fact is that when the Court Attendance Notice particularised three matters and all three matters were taken into account in setting the first penalty, particulars two and three must have added a further element in determining the objective seriousness of the offence, even if they did not substantially add to the monetary penalty to be imposed. For those reasons, we are of the opinion that his Honour erred in not reducing the penalty of $65,000 in recognition of the absence of numbered particulars two and three in the re-sentencing exercise. While it might be a nice question of judgment as to the level of seriousness that might be added to the offence by the presence of particulars two and three, nevertheless, the re-sentencing exercise had to face that necessity: a similar process would apply if the breach was assessed solely by reference to particular one. His Honour was therefore in error in treating the position as being no different to his first sentencing exercise when particulars two and three were no longer available for consideration. 38Although the appellant pressed the point that his Honour was obliged to commence the sentencing process afresh, it seems to the Court that whether his Honour disaggregated the previous penalty because of the absence of particulars two and three in the re-sentencing exercise or whether he started afresh is of no particular consequence. Whatever approach his Honour adopted he had to re-sentence in recognition of the fact that he had concluded that a penalty of $65,000 was warranted in relation to a charge containing three particulars and was now re-sentencing in relation to one particular only, albeit, a particular raising a most serious issue of failing to adequately guard the Press. The difference in the two exercises is likely to be notional. In the event it appears that his Honour took neither course: he certainly does not appear to have begun afresh and there is nothing in the re-sentencing decision that would indicate that course was adopted. It appears that his Honour reached his decision to confirm the $65,000 penalty in accepting one of the alternatives put forward by the prosecutor, namely, that the two invalid particulars were so intertwined with particular one that they added nothing to the objective seriousness of the offence. 39Having accepted that his Honour was in error in not reducing the $65,000 penalty, it does not follow that the effective penalty of $55,000 (recognising the jurisdictional limitation on the Local Court) is manifestly excessive. In his Honour's first sentencing hearing he recognised that, although the injury here concerned the partial amputation of a thumb (one-third loss), his Honour concluded that in fact there was a risk of serious injury to both hands or the whole of a hand and/or fingers although no other part of the body was at risk. The work was described as a "high risk" operation where there was an absence of guarding and that such a risk arose where, even on one occasion, there was less than perfect co-ordination exhibited by the operator. His Honour described the workplace provided by the appellant as containing "a serious and obvious hazard" where there was a foreseeable risk that was easily addressed. This was especially so where the Bench Press had been supplied with guarding but that guarding had been removed and no step was taken to prevent the use of the Press without adequate or appropriate guarding. Further, his Honour found that there was an effective delegation of responsibility for safety to the contractor and a failure to ensure that the contractor was operating safely. The extent of his Honour's finding as to the risk presented by the unguarded Press and that it extended to both hands and/or the whole of a hand was not acknowledged or otherwise recognised in the submissions put on appeal by the appellant. 40The appellant sought to bolster its case by presenting a schedule of decisions in the Chief Industrial Magistrate's Court and in this Court for unguarded machinery, noting the very low levels of penalty imposed in the Local Court and the different penalty regime appearing in the judgments of the Court. The appellant accepted that the schedules contained no details of the cases but submitted that the resultant fines strongly suggested that the penalty imposed in this case by the Chief Industrial Magistrate was far in excess of any other penalty imposed in that jurisdiction. 41The prosecutor, however, was able to direct attention to a decision where a penalty in the order of $44,000 was imposed in relation to unguarded machinery (see U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector De Silva) [2004] NSWIRComm 266). In that case, an Industrial Magistrate had found an unsafe system of work. On appeal the Full Bench noted that the Industrial Magistrate was required to have regard to the statutory maximum penalty rather than the jurisdictional limit: when that approach was adopted, it was concluded that the penalty imposed was not excessive having regard to the fact that it was a serious offence. The Full Bench estimated that, having regard to the 25 per cent discount available for an early plea and a further 10 per cent available for other mitigating factors, the $44,000 final penalty was likely to represent a primary penalty in the order of $68,000. The injury resulting from the unguarded machinery in this case was the amputation of the last joint of the index finger of the worker's left hand and arose from a failure, over a period of time, of prohibiting employees from taking a shortcut in relation to the machinery being used. 42There are other examples. In Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416; [2005] NSWIRComm 123 a Full Bench of the Commission upheld (by consent) an appeal against penalties imposed by an Industrial Magistrate for a breach of s 8(1) and s 10(2) of the Act. That offence involved a workplace injury arising from the use of an unguarded machine: the employee received lacerations to his right arm and was unable to return to normal duties for approximately five days. 43The Full Bench rejected the Magistrate's assessment of the risk to safety as being "more on the low side" and the fines imposed of $2,000 and $500. The Full Bench concluded that there was a risk of serious injury and was plainly foreseeable. It also appeared to the Full Bench that the Magistrate assessed the penalties by reference to the jurisdictional limit on the Local Court rather than by reference to the maximum penalty of $550,000. The penalties were increased to a primary penalty of $20.000, reduced to $13,000, for the discount available. 44This case also demonstrates the error of fixing penalties by reference only to the injury actually received without considering the extent and nature of the risk in establishing the objective seriousness of an offence. Similar errors appear in the submissions for the appellant. 45The Court has frequently warned against a bare comparative exercise in penalties imposed for broadly similar categories of breach without attending to the particular circumstances of each case. The schedules relied upon by the appellant also suffered by being unable to access CIM decisions after 2006. Further, the schedules may contain decisions where Industrial Magistrates had proceeded on the erroneous view that prosecutions in the Local Court were limited to a maximum penalty of $55,000 with that amount being reserved for the most serious level of offences rather than recognising that the general statutory limit of $550,000 applied and that it was only the limit on the jurisdiction of the Local Court that capped its penalties at $55,000. The Court cannot regard this material as assisting its deliberations on this ground of appeal. 46While his Honour was in error in imposing a penalty of $65,000 again in the re-sentencing hearing, the effective penalty was $55,000. We are satisfied that, having regard to all the circumstances of this case, a penalty of $55,000 was within the appropriate range of penalties for this type of offence. It is recognised that proceedings are commenced in the Local Court by the prosecutor in recognition of the lower level of seriousness of charges brought compared with the matters brought before this Court. It is the view of the Court, nevertheless, that an offence that demonstrates a risk of the amputation of one or more fingers and extends to injury to both hands and/or to the whole of the hand is at the higher level of unguarded machinery cases that might come before the Chief Industrial Magistrate. It must also be remembered that his Honour concluded, correctly in our view, that this was a "high risk" operation where the co-ordination and balance of the operation was a factor in the safe operation of the Press. The risk was foreseeable. In addition, in this instance the appellant had effectively delegated to the contractor its responsibility for safety. His Honour was correct to find that this was a serious breach. The Court can find no error in the effective penalty imposed on the appellant and the ground asserting the manifest excessiveness of the penalty must therefore fail. 47It should also be noted that his Honour accepted and took into account the myriad of subjective factors put forward by the appellant. Having considered the submissions, we concur with his Honour that at the re-sentencing the substance of those subjective factors had already been considered by the Court. The appellant's emphasis on these matters tends to suggest that the appellant has elevated the subjective considerations to an unjustified level and has ignored the primary importance of the penalty reflecting the objective seriousness of the offence. It might further be noted that, in relation to subjective factors, his Honour accepted all the appellant's submissions and was satisfied that the appellant, as a general rule, had shown a conscientious and diligent approach to its occupational health and safety obligations. His Honour concluded that the appellant was a substantial employer in a number of States and that the steps taken following the accident were "impressive." There is nothing to indicate that his Honour under-valued in any way the many subjective features raised by the appellant. 48Having regard to the conclusions reached on appeal in finding that his Honour was in error in not reducing the penalty from $65,000 but that the resulting amount of $55,000 was, in any event, within the appropriate range for an offence of this nature, the question arises as to the operation of the Crimes (Local Courts Appeal and Review) Act 2001. In the previous appeal the Full Court noted that there remained an unresolved issue at appellate level whether or not the appellant had a right of appeal pursuant to the Crimes (Local Courts Appeal and Review) Act or whether the appeal was subject to the grant of leave to appeal, as provided by s 188 of the Industrial Relations Act 1996. Reference was made to Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247: there was also a detailed discussion of the issue in Thiess Pty Ltd v WorkCover Authority (NSW) (Inspector Jones) (2009) 184 IR 406 from [56] et seq; [2009] NSWIRComm 77. Again, it is unnecessary to resolve this difficult question: having regard to the nature of the error made by his Honour in the re-sentencing exercise, if leave to appeal is necessary, the Court would grant leave. 49During oral submissions senior counsel for the prosecutor drew attention to the provisions of s 20, s 55, s 65 and s 20 of the Crimes (Appeal and Review) Act and how those provisions may have operation in relation to this appeal. Pursuant to leave granted by the Court, the appellant provided written submissions contesting the use that could be made of those provisions having regard to the way the case on appeal was developed by the prosecution. We do not find it necessary to consider or resolve these differing contentions: the appeal is able to be determined upon an orthodox approach to sentencing appeals and in this case, that course is not affected by the provisions to which attention was drawn. 50The final issue raised by the appellant concerns the question of costs. On the first appeal the Full Court determined that each party should bear its own costs of the appeal and secondly, that the costs order made by the Chief Industrial Magistrate on 11 August 2009 should be set aside and the matter of the costs of the first instance proceedings be remitted to his Honour for determination (see The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales (No 2) [2011] NSWIRComm 67. 51The essence of the Full Court's approach to costs was set out in the following two paras of the costs judgment: 10In relation to the costs of the appeal, the usual order is that costs follow the event: Cretney at [8(e)]. In the present case, the ultimate result was that there was no acquittal of the appellant, but because two particulars going to essential factual elements of the charge were held to be invalid, the matter was remitted to the CIM for his consideration as to what should be an appropriate penalty given that the singular failure by the appellant was a failure to "maintain adequate guarding of the Press in that the guarding was removed and not replaced on the Press". 11In other words, the appellant was not successful in having the conviction overturned, but was successful in having the sentence reconsidered in circumstances where two of the three particulars of the charge, which would have been taken into account by the CIM in sentencing, are no longer to be taken into account. The respondent was successful in resisting the overturning of the conviction. 52On the re-sentencing hearing, having determined to set the penalty for the offence in relation to one particular at the same level as he had previously set (effectively $55,000 because of the jurisdictional limit), his Honour then moved to the question of costs having regard to the orders made by the Full Bench. The prosecutor sought costs in respect of the initial liability hearing, the first sentencing hearing and the re-sentencing hearing presently before the Court. The appellant submitted that an appropriate costs order would be for each party to bear its own costs in relation to the liability hearing and the first sentencing hearing. In oral submissions the appellant argued that the matter had proceeded before his Honour in relation to two invalid particulars and thus the appellant was put to the cost of defending charges that it should not have been required to defend and that the sentencing process had to be repeated because the first sentencing hearing had proceeded on the wrong jurisdictional basis. It was submitted for the appellant, however, that in relation to the re-sentencing hearing, the appellant should pay the costs of the prosecutor as agreed or assessed by the Court. 53His Honour noted that, in the first liability hearing, he had found the defendant guilty of a breach of s 8(2) of the Act and despite the appeal to the Full Court, that finding of liability remained intact. He had imposed an effective penalty of $55,000 and on a re-hearing of that sentence, the order of the Court remained unchanged. In those circumstances his Honour was of the view that the prosecutor was entitled to an order for costs in relation to the liability hearing, the first sentencing hearing and the re-sentencing hearing. His Honour noted that his view of the appropriate exercise of the costs discretion would have been altered if, at the liability hearing or at the first sentencing hearing, the appellant had raised the issue of particulars that were ultimately upheld on appeal by the Full Court. Those matters were not raised at that time, legal costs were not incurred and the time of the Local Court was not spent in debating those matters. 54On the present appeal, the appellant made the following points:

• the appellant had a measure of success in relation to the conviction judgment with the second and third particulars being held to be invalid. This was not taken into account by his Honour in exercising his costs discretion on the conviction judgment;
• the appellant had "the full measure of success" in relation to the first sentencing judgment as it was effectively set aside and his Honour was directed to re-consider the sentence;
• despite these matters, the only reason proffered by his Honour to award costs to the prosecutor was that the validity of the two particulars was not raised at an earlier time. That conclusion was described as "erroneous" in that the prosecutor presented and pursued a charge that did not conform with the mandatory jurisdictional requirements of the Act and ultimately did not succeed in making out all three particulars of the charge with the first sentencing hearing proceeding on an incorrect jurisdictional basis;
• the appropriate order for costs should have been that each party bear their own costs for the conviction hearing (because as originally pleaded it was invalid in respect of two particulars with the prosecutor succeeding only in relation to one particular) and further, the prosecutor should pay the appellant's costs of the first sentencing hearing. (It is to be noted that this is a departure from the submissions put before his Honour on the re-sentencing hearing);
• the respondent should also pay the appellant's costs of the appeal and the second sentence proceedings. 55The appellant accepted that the usual order as to costs was that a successful party would have its costs paid on a party and party basis by the unsuccessful party (Oshlack v Richmond River Council (1998) 193 CLR 72 at [67], (1988) 152 ALR 83; Hansen Yuncken Pty Ltd v Costopoulos (No 2) (2005) 138 IR 118 at 120; [2005] NSWIRComm 52; Kennett and anor v Mayrana Pty Ltd and ors (No 14) [2010] NSWIRComm 64 at [9]). Ordinarily, costs would follow the event and a successful litigant would receive costs in the absence of "special circumstances" justifying some other order (Ruddick v Vadarlis [2001] FCA 1867; (2001) 115 FCR 234, per Black CJ and French J). 56The appellant submitted that those principles had been affirmed by the Full Court in Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 at [8]-[9]. For present purposes it is appropriate to set out the authorities relied upon by the Full Court in Cretney in relation to costs orders in the Court: 8 The principles that apply to the awarding of costs in this jurisdiction, as they are relevant to these proceedings, may be summarised in the following fashion: (a) Costs are in the discretion of the Industrial Court which has power to determine by whom and to what extent costs are to be paid: s 181(1) of the Industrial Relations Act. (b) The powers and discretions of the Court under s 181(1) are to be exercised in accordance with Pt 27 of the Industrial Relations Commission Rules 1996; (c) The discretion must be exercised judicially: Cretazzo v Lombardi [1975] 13 SASR 4; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 96-98 per McHugh J. (d) Costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. The order is not made to punish the unsuccessful party: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 per Mason CJ at 543, per Toohey J at 562 - 563, per McHugh J at 566 - 567. (e) The 'usual approach', the 'general position' or 'ordinary' approach is that costs will follow the event: Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187 at [126]; Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (No 2) [2009] NSWIRComm 33 (2009) 181 IR 395 at [5]; Rose v Meriton Apartments Pty Ltd [2008] NSWIRComm 25; (2008) 171 IR 49 at [8]; WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40; (2003) 124 IR 459 at [19]. (f) A successful litigant is, prima facie, entitled to an award of costs, unless there are special circumstances warranting a departure from the rule: O'Sullivan v Crown in Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303; (2003) 128 IR 158 at [198] - [199]; Powerlan Ltd v Squires (No 2) [2007] NSWIRComm 68; (2007) 162 IR 389; Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 137 at [14]. '[T]he making of an order that a successful party pay his or her opponent's costs requires strong justification and exceptional circumstances must exist before a party will ... be ... required to pay part of the opponent's costs': Arian v Nguyen (2001) 33 MVR 37, [2001] NSWCA 5 at [37]; Hooker v Gilling (No 2) [2007] NSWCA 214 at [21]. (g) Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373, citing New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed) (see also Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 at [38]; Bonic v Pacific General Securities Ltd [2009] NSWSC 1221 at [12]). (h) Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite Protective Personnel, citing Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported) (see also Bostik and Bonic). However, in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Finkelstein and Gordon JJ stated that: Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. See also Hodge v TCN Channel Nine (No 2) [2006] NSWSC 1272 and Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496. (i) A separable issue can relate to 'any disputed question of fact or law' before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] (see also Bostik and Bonic) (j) It may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Elite Protective Personnel, citing Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24] (see also Bostik and Bonic). (k) If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Elite Protective Personnel, citing Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27] (see also Bostik and Bonic). (l) Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2), which in turn cited Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272 (see also Bostik and Bonic). (m) A successful party may, in appropriate circumstances, be ordered to pay the costs of an unsuccessful party where the Court finds disentitling conduct, or misconduct, on the part of the successful party such as to warrant a costs order against it: Anglo-Cyprian Trade Agencies at 874. (n) In determining whether the successful party is guilty of misconduct (or disentitling conduct), the conduct must relate either or both to the litigation and/or the circumstances leading up to the litigation: Oshlack at 97 per McHugh J. (o) A plaintiff who wins nominal or trivial damages ought not necessarily be regarded as a 'successful' plaintiff for the purpose of awarding costs: Anglo-Cyprian Trade Agencies; Alltrans Express. However, regard should be had to the special character of orders under s 106. There is no requirement that a monetary order be sought at all under s 106. Substantive findings of unfairness referred may be sufficient to support the usual order as to costs irrespective of the order for payment of money under s 106(5). 57The appellant's approach to all these questions of costs appears to be substantially coloured by the fact not only that two particulars were found to be invalid but those two particulars were stand alone allegations, not intimately connected to the particular concerning the risk of the unguarded Press (while at the same time asserting that the real content of particulars two and three were unknown because the measures to be taken were not specified). As already indicated, we are unable to accept that analysis: his Honour regarded particulars two and three as directly connected to the operation of the unguarded Press. His Honour's frequent reference to "short particulars two and three" indicates that his Honour found that the gravamen of the offence was the lack of a proper guard on the Press with particulars two and three providing supplementary omissions by the appellant. 58Having regard to the transcript there were good reason for his Honour to approach the matter that way. A significant amount of the case (apart from other preliminary objections), however, was focused upon the circumstances of the supply of the machine by an independent supplier and the relative responsibility of that supplier for the risk of operating an unguarded Press. On appeal the appellant did not provide the Court with a detailed analysis of the transcript to indicate the significance of particulars two and three and the time and effort devoted to those particulars by the appellant or by the prosecutor. In oral submissions on appeal senior counsel for the prosecutor indicated two pages of transcript where the appellant dealt with particulars two and three, representing a vast minority of the argument before his Honour. 59Having regard to the authorities set out in Cretney, it would be inappropriate in this case to merely identify some point or points on which the appellant was successful to justify a departure from the usual course of costs following the events. The Court is unable to accept that the argument and evidence in relation to particulars two and three were so significant that they could be described as "clearly dominant or separable" - the major issue for the prosecutor was the allegation of the operation of the unguarded Press, an issue on which the prosecutor has succeeded at all hearings. The major issue for the appellant that occupied a significant amount of hearing time was the relative responsibility of the contractor, an issue on which it failed at every level. The Court is also unable to accept the submission that particulars two and three took up such a significant part of the trial that there should be some apportionment of the costs. It follows that no grounds have been established to warrant an interference with his Honour's orders as to the costs of the liability or conviction judgment or on the re-sentencing hearing. 60Before departing from this part of the appeal, it is appropriate to make some comment about the appellant's submission that the only reason proffered by his Honour for the costs orders made was the fact that the validity of particulars two and three were not raised at the first liability hearing: that approach was said to be erroneous and failed to take into account the obligation of the prosecutor to proceed only with a valid charge. His Honour's comments in that regard, however, appear to be a reference to the fact that, had the issue of validity been raised and defended by the prosecutor, the significance of that argument would warrant the exercise of the costs discretion in favour of the appellants and that not having occurred, then there was no occasion to consider the time spent on those ultimately successful arguments. That approach by his Honour is a reflection of a perfectly conventional approach to costs as contained in the authorities cited by the Full Bench in Cretney. His Honour's comments in that regard, when properly understood, disclose no general error nor do they result in the type of specific error alleged by the appellant in its submission. 61In relation to the costs of this appeal, the appellants briefly addressed the issue in their written submissions and the Court does not understand that any party sought to reserve its position in relation to the questions of costs of the appeal. In those circumstances, while the appellant has demonstrated error in the sentencing approach of his Honour, the appellant has failed on the significant issue of a manifest excessiveness of the penalty and has failed on the issue of costs orders made by his Honour. The total result of the appeal is that the appellant has failed and applying the normal costs rule, would bear the costs of the appeal. Should the appellant, however, wish to submit brief written submissions with an opportunity provided for the prosecutor to put brief submissions in reply then the Court would be prepared to consider those submissions on the papers in determining the costs of this appeal. If that course is to be adopted, the appellant should notify the Court and the prosecutor as soon as possible and the written submissions for both parties should be filed and served within fourteen days with the appellant given seven days to file and serve its submissions and the prosecutor given a further seven days to file and serve its submissions.

ORDERS (1)To the extent necessary, leave to appeal is granted. (2)The appeal is dismissed. (3)Costs of this appeal reserved. The parties to file and serve written submissions regarding the costs of the appeal, if so advised.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2012