Tsougranis v Inspector Carmody [2006] NSWIRComm 133 | Case summary

Industrial Relations Commission (NSW)|1992-06-30|Before: Wright J, Walton J, Staff J, Mr P, Ms P, Haylen J

CITATION: Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133

APPELLANT Luke Tsougranis PARTIES: RESPONDENT Inspector Martin Carmody

CORAM: Wright J President; Walton J Vice-President; Staff J

Criminal Appeal Act 1912 s 5AA Criminal Procedure Act 1986 s 133 LEGISLATION CITED: Evidence Act 1995 s 165 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 1983 s 16 s 17

Fingleton v The Queen (2005) 216 ALR 474 Inspector Carmody v Luke Tsougranis (No 3) [2003] NSWIRComm 281 Inspector Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 & 1213 of 1990, 30 June 1992) Mainbrace Construction Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 R v Kneebone (1999) 47 NSWLR 450 R v Reardon (No 2) (2004) 60 NSWLR 454 CASES CITED: R v Spiteri (2004) 61 NSWLR 369 Tsougranis v WorkCover Authority of New South Wales (Inspector Carmody) (2004) 135 IR 356 Whitehorn v The Queen (1983) 152 CLR 657 WorkCover Authority of New South Wales (Inspector Carmody) v Luke Tsougranis (No 2) (2003) 123 IR 419 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Ltd [2003] NSWIRComm 370 WorkCover Authority of New South Wales v James Hitchcock (2004) 135 IR 377 WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325 WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, matter No CT 1115 of 1995, 8 August 1996)

HEARING DATES: 02/02/2005, 29/03/2005, 23/06,2005, 02/08/2005

APPELLANT Mr T Game SC with Mr P Strickland of counsel Solicitor: Mr B Stavropoulos Stavropoulos Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Crawshaw SC with Ms P Lowson of counsel Solicitor: Mr N Correy Moray & Agnew, Solicitors

CORAM: WRIGHT J, President WALTON J, Vice-President STAFF J

Application by Luke Tsougranis for an appeal against Judgments of Justice Haylen given on 10 April 2003 and 4 September 2003 in Matter No IRC 4365 of 2000

JUDGMENT OF THE PRESIDENT AND STAFF J [2006] NSWIRComm 133

Introduction 1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 ("the IR Act") and s 5AA of the Criminal Appeal Act 1912 ("the CA Act") from decisions of Haylen J, given on 10 April 2003 in WorkCover Authority of New South Wales (Inspector Carmody) v Luke Tsougranis (No 2) (2003) 123 IR 419 (determination of guilt) and on 4 September 2003 in Inspector Carmody v Luke Tsougranis (No 3) [2003] NSWIRComm 281 (determination of penalty) in relation to a charge laid against the appellant pursuant to s 16(1) of the Occupational Health and Safety Act 1983 ("the OH&S Act"). The defendant was fined the sum of $24,300. This led to a charge laid pursuant to s 17(1) of the OH&S Act not being pressed. Grounds of Appeal 2 The appellant filed an amended notice of appeal containing six grounds of appeal as follows:

The verdict cannot be supported having regard to the evidence;
His Honour failed to direct himself properly as to the burden and standard of proof and failed to make findings in accordance with the burden and standard of proof;
His Honour erred in refusing to grant to Mr Papianni a certificate under Section 128 of the Evidence Act 1995;
There was a miscarriage of justice by reason of the conduct of the prosecutor in that: (a) the prosecutor called Michael Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the WorkCover Authority of New South Wales ("WorkCover") under section 15(1) of the Act and that such a prosecution constituted an abuse of process of the Court; and (b) the prosecutor failed to advise the Appellant or his lawyers before Judgment that the proceedings against Mr Papaianni had been withdrawn or dismissed.
(Not pressed.)
The sentence is manifestly excessive.
His Honour erred in that he failed to give himself appropriate warnings, cautions or directions concerning the evidence of Papaianni, Hamilton and Agapiou. 3 As we observe subsequently in these reasons, the appellant also relied on the contention that the prosecution, at first instance, had not proved beyond reasonable doubt that the appellant's worksite was the defendant's place of work. Interlocutory Proceedings 4 In light of the grounds of appeal the appellant filed a notice of motion seeking orders in these proceedings for the issue of three summonses for the production of a large range of documents. This required a determination by the Full Bench of the powers of the Court to admit fresh evidence on appeal. 5 In Tsougranis v WorkCover Authority of New South Wales (Inspector Carmody) (2004) 135 IR 356, the Full Bench held at [70]: …We consider, at this stage of our deliberation, that it may be open to the respondent to test the quality (to use a relatively neutral term) of the material that is proposed to be led from Mr Papaianni prior to the determination of the appeal. Although the appellant has stated the substance of the evidence he expects to obtain from Mr Papaianni, and the significance of that likely evidence to the outcome of the appeal, steps may need to be taken to put his evidence in a suitable form for its reception before the Full Bench, presumably subject to its testing in an appropriate way. There is also the consideration whether Mr Papaianni, or his legal representative, should be heard on the matter. These are matters which will require the Court's directions in due course. Subject to those considerations, the Court may receive fresh evidence as later discussed in this judgment. 6 The Full Bench declined the issue of the three summonses, concluding as follows at: [74] Having regard to the concessions made by the respondent and the foregoing discussion, we consider that the leave the appellant seeks to issue the summonses should be refused. That conclusion should not, however, be taken as determining the appellant's motion. It is clear that the appellant will be entitled to place some further evidence before the Full Bench on appeal. We consider that the material we have referred to satisfies the criteria referred to in the opening words of s 12(1) of the Criminal Appeal Act . We have already adverted to the nature of the material that might be available and also to the need for directions to be made as to certain machinery aspects of that matter. Directions may also be necessary for at least two other purposes; first, to ensure that any further hearing before the Full Bench, which could include the taking of oral evidence, is conducted in a fully efficient way; second, and this aspect in part derives from the first matter, to ensure that any responsive evidence filed by the respondent is filed in a timely way. [75] We make these observations because we apprehend that the material we have determined could be available to be tendered by the appellant raises circumstances which the respondent might appropriately consider require answer because, in the absence of an adequate answer to it, certain conclusions adverse to the prosecution's conduct at trial may follow. 7 The respondent did not rely on any additional evidence despite the Full Bench observing that the fresh evidence proposed to be relied upon by the appellants could result in findings being made against the respondent. Procedural History 8 The procedural history of this matter was conveniently summarised in the Full Bench's interlocutory judgment in Tsougranis at [4] - [10]. 9 Notwithstanding what was said by the Full Bench in the interlocutory judgment (in particular at [75]), the respondent brought no evidence, apparently taking the view that if the matter was decided on a certain basis, other matters would not need to be dealt with by the respondent. 10 Although one may well understand this approach from a tactical point of view, there are risks for a party taking that approach. The Full Bench made it very clear that the certain findings could be made. The Evidence of Mr Papaianni 11 The course of events that unfolded were Mr Papaianni gave evidence in response to a summons served on him by Inspector Carmody. Mr P Strickland of counsel who, at this stage, appeared for the appellant, cross-examined Mr Papainni. 12 Mr Papaianni's evidence was that as at 1998 (the year of the incident) he had been a builder for 14 or 15 years. Mr Papaianni was shown the architectural and engineer's plans for the work that was to be carried out at 730 Bourke Street ("the site") and acknowledged that he was required to follow the plans. Mr Papaianni acknowledged that, based on the architectural plan, it did not require the level of the existing floor of the building to be increased or to be lowered. He stated that Mr G Agapiou, the owner of the building, gave instructions that the level of the floor should remain as it existed. 13 It was acknowledged by Mr Papaianni that he did not have any discussions with Mr Tsougranis about the excavation or the construction work that was going to occur at the rear of the premises where the wall collapsed. Mr Papaianni's evidence was that if the architect's and engineer's plans were taken together with what Mr Agapiou had told him, his instructions were to create a new slab on the rear of the premises which was at the same level as the old floor. Mr Agapiou gave Mr Papaianni the level for the floor from which he worked. He agreed that the architectural and/or engineering plans were consistent with what Mr Agapiou had told him. He agreed that there were no notes on the plans directing him, as the builder, to lower the floor at the area where the wall collapsed. He first stated that if that was required he would have expected to see in the engineer's diagram, a note or diagram illustrating how to underpin and reinforce the existing floor footings. 14 Mr Papaianni was shown a photograph of the site and acknowledged that he had began to dig trenches a few days before 3 September 1998. He stated it was necessary to dig the trenches to create the footings, beams and the slab. His evidence was that the depths of the trenches was determined by the plans. He stated he used a tape measure to determine the depths. Mr Papaianni stated that he wasn't aware whether there was a concrete or timber floor previously where he was going to build a concrete floor. The concrete was due to be poured on 7 or 8 September and Mr Papaianni acknowledged that he was preparing the ground for the concrete to be poured. Mr Papaianni stated that he didn't need any fill as he intended to use the existing soil. He denied that he was intending to lower the floor level. Mr Papaianni agreed that on 3 September 1998, the day the wall collapsed, Mr Tsougranis was not on the site. Mr Papaianni agreed that for the new wall to be supported it needed a footing underneath it, in what would be, generally speaking, wider than the wall. Mr Papaianni stated that he didn't notice a distinct line of plaster which would indicate where the old floor level had been located. He was not involved in removing the old floor from the back area of the site and stated he had no idea where the floor level had been. 15 When he arrived at the site the whole back area had been cleared. He rejected a suggestion that it was very important to accurately discover or find out where the old floor level was located. He stated that he was given a floor level that he had to work with and that's exactly what he did, going by the architect/engineer plans and what he was told by Mr Agapiou. He was given the existing floor level that he had to work off by Mr Agapiou from which he worked from by reference to existing floor level. Mr Papaianni stated that was a reference to the existing internal floor and the reference was given to him by Mr Agapiou. Mr Papaianni agreed that the old floor level must have been above the soil level that he saw when he first arrived on the site. The mark provided by Mr Agapiou was approximately 100 mm above the soil. Mr Papaianni drew a crayon or pencil line at the point shown by Mr Agapiou. 16 Mr Papaianni's evidence was that Mr Agapiou stated that it was necessary to excavate to get a base level which was determined by the finished floor level. If the soil level was 300 mm it was 300 mm that had to be dug. The depth required to be dug was determined by the finished floor down to the base of the footing beam which was to be 400 mm deep. Mr Papaianni acknowledged that in digging he encountered the old sandstone footing which was slightly wider than the wall, perhaps 30 mm to 50 mm. He stated that whilst he was at the site he did not interfere with the sandstone footing. He denied he saw anyone using a mattock (a pick) to trim the old sandstone footing. Mr Papaianni was shown a diagram prepared by an expert called by WorkCover which represented the width of the sandstone bulk footing was the same as the widths of the sandstone footing which he acknowledged the diagram demonstrated. Mr Papaianni was referred to the evidence of an expert, Mr Smee who said he observed fresh cut marks on the sandstone footing. Mr Papaianni's evidence was he did not accept the sandstone footing had been trimmed. Mr Papaianni said he didn't do anything wrong that led to the collapse of the wall. Mr Papaianni stated that Mr Hamilton, a carpenter and partner of his, was not working under his direction at the site. He stated Mr Hamilton never told him that he trimmed the footings and Mr Papaianni never instructed him to do so. Mr Papaianni agreed that he was never given a structural certificate from the Local Council to accompany the structural plans he was given by Mr Agapiou or by Mr Tsougranis. 17 Mr Papaianni agreed that without the certificate from Council approving the engineer's plan, the construction work on the premises could not proceed. He further accepted that the engineer's plan bearing a stamp by the Council must be kept on site at all times which did not happen in respect of this site. Mr Papaianni stated that Mr Tsougranis had indicated in conversation with him and Mr Hamilton that he knew that the engineering plan had not been stamped as Council approved. Mr Papaianni and Mr Hamilton told Mr Tsougranis that they intended to commence the work and that they didn't have any stamped engineering plans. His evidence was that Mr Tsougranis told Mr Papaianni and Mr Hamilton that he would sort it out and to go ahead and that Mr Tsougranis would inspect the works and certify the works when the time arose. 18 Mr Papaianni said that he had never come across a situation before, where he did not have stamped engineer's plans. He stated that he had asked Mr Agapiou about the stamped engineering plans and was told to ask Mr Tsougranis about them. Mr Papaianni couldn't recall talking about the pouring of the concrete slab with Mr Tsougranis. Mr Papaianni agreed that he read the specifications relating to the architectural plans during his work at the site. Mr Papaianni acknowledged that he didn't take any steps to securely support the wall because from his understanding the wall was secure. He stated that specifications on the plans only applied if the wall was apparently unstable. According to Mr Papaianni, these were general specifications which normally architects and draftsmen put on their plans. Mr Papaianni's evidence was an overall compliance was not required with the plans. Mr Papaianni denied that he had dug 400 mm below the soil level stating that he dug exactly the amount that was required. He disagreed with a report from an expert, Mr Turner. Mr Papaianni's evidence was that he worked in accordance with the plans. He stated that, to his knowledge, the wall didn't need supporting and there was nothing on any of the plans or specifications to suggest otherwise. The Evidence of Mr Stavropoulos 19 Mr T Game SC, who later appeared with Mr P Strickland for the appellant, tendered an affidavit of Mr B Stavropoulos, the appellant's solicitor. Mr Stavropoulos who was first instructed by the appellant on 15 May 2003 was required for cross-examination. Mr Stavropoulos' evidence may be summarised as follows: (a) On 28 May 2003, Mr Stavropoulos received the appellant's file from Gadens Lawyers ("Gadens"). On 3 June 2003, Mr Stavropoulos received a facsimile from Gadens together with other correspondence and an affidavit of Mr D Glinatsis which related to costs in the interlocutory proceedings before Haylen J. (b) Although Mr Stavropoulos read the affidavit of Mr Glinatsis and saw the reference to the dismissal of the proceedings against Mr Papaianni, he did not appreciate the significance of that fact until some time after Haylen J delivered his decision on penalty. Mr Stavropoulos' evidence was that neither Moray & Agnew, solicitors for the prosecutor, nor Gadens informed him that the withdrawal of the prosecution against Mr Papaianni meant that Mr Papaianni may have become available as a witness in the proceedings. (c) The hearing of argument in respect of the costs was originally listed for hearing on 27 June 2003, but was adjourned, by consent, to 15 August 2003 for hearing. On 7 August 2003, Mr Stavropoulos briefed Mr Strickland of counsel to appear on sentencing. Mr Strickland was not briefed to advise or appear generally. Mr Strickland requested that Mr Stavropoulos ask the prosecutor why the charges against the builders, Mr Papaianni and Mr Hamilton had been withdrawn. (d) On 13 August 2003, Mr Stavropoulos telephoned Ms R Sutton, a solicitor with Moray & Agnew to enquire why the prosecutions had been withdrawn. The enquiry was confirmed in writing. On 14 August 2003, Ms Sutton wrote to Mr Stavropoulos advising that she was seeking instructions. (e) The hearing in respect of penalty took place on 15 August 2003 before Haylen J and a decision was delivered by his Honour on 4 September. (f) Mr Stavropoulos then retained Mr Game SC and Mr Strickland to advise on the prospects of an appeal. (g) On 23 September 2003 Ms Sutton advised Mr Stavropoulos that the proceedings against Mr Papaianni were dismissed by consent on or about 9 February 2003. A copy of the consent orders were forwarded by Ms Sutton. (h) By letter dated 24 September 2003, Mr Stavropoulos wrote to Ms Sutton seeking certain further documentation including a notice of motion and affidavit filed on behalf of Mr Papaianni seeking dismissal of the proceedings against him. On 29 September 2003 Ms Sutton forwarded various documents to Mr Stavropoulos including a copy of the notice of motion filed 30 August 2002 on behalf of Mr Papaianni. Mr Stavropoulos' recollection was that the affidavit in support of the notice of motion sworn by Mr Gilatsis on 7 February 2003 was enclosed. These documents were forwarded to Mr Strickland on 30 September 2003. 20 During cross-examination, Mr Stavropoulos agreed that the file received from Gadens contained the interlocutory judgment of Haylen J. It was Mr Stavropoulos' evidence that it was not until some time around sentencing that he married the fact that there was an interlocutory judgment where Mr Papaianni's evidence was not allowed in full with the knowledge of the dismissal of Mr Papaianni's matter. His evidence was that counsel had married the two issues together. Mr Stavropoulos acknowledged that as of June 2003 he had correspondence that would have enabled him to know that the proceedings against Mr Papaianni had been dismissed and Mr Papaianni's evidence had been restricted before Haylen J. However, the thrust of Mr Stavropoulos' evidence was he did not recall these matters until Mr Strickland raised them in the context of lodging an appeal against the decision of Haylen J. 21 In re-examination, Mr Stavropoulos' evidence was that each of the requests contained in the various pieces of correspondence from him were genuine requests for further information in respect of the appellant's matter. Consideration 22 The principal issue that emerged during the course of argument in the appeal was whether the verdict and conviction of the appellant could be supported having regard to the evidence. In order to deal with this ground of appeal, it is necessary to set out the charge and the particulars. 23 The summons alleged that on 3 September 1998, at a construction site situated at 730 Bourke Street, Redfern, the defendant, being an employer, failed to ensure that persons not in his employment and, in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoca and Carl Hamilton, were not exposed to risk to their health or safety arising from the conduct of his undertaking, to wit, the provision of structural engineering advice, directions and drawings for use at the premises by those persons whilst they were at his place of work.

The alleged offence was particularised in the following way: 1. The defendant on or about late May or early June 1998 was engaged by George Agapiou, the owner of the premises ("the owner"), to provide structural engineering advice, directions and drawings for use by persons engaged by the owner, for the conduct of certain works involving renovations to the existing structure and the addition of a new structure at the premises.

Pursuant to the defendant's engagement with the owner, the defendant provided structural engineering advice, directions and drawings for use by the builders in pursuance of that engagement.

At all material times on and prior to 3 September 1998 there was a free-standing double brick wall ("the wall") in the rear northern boundary of the premises which was:

(i) not fully bonded into the cross wall at the rear of the front section of the premises to which it abutted;

(ii) was not a party wall fully bonded into the cross walls of 728 Bourke Street, Redfern, the adjoining premises. 4. On and prior to 3 September 1998 works were carried out by Michael David Papaianni and Carl Mark Hamilton ("the builders"), and their employee Jim Zaronias at the premises, pursuant to the builders' contract with the owner, in reliance on the structural engineering advice, directions and drawings provided by the defendant.

In the provision of such structural details and advice the defendant: (a) had not investigated the depth of the base or structural integrity of the footings of the wall;

(b) had not made a detailed assessment of the structural integrity of the wall itself;

(c) had not provided any requirements in his design to provide appropriate temporary support for the wall; 6. At all material times on and prior to 3 September 1998 the defendant failed to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure it was not at risk of toppling prior to any of the works being conducted.

On 3 September 1998 Jim Zaronias sustained fatal injuries and Michael David Papaianni sustained serious injuries when the wall toppled and fell upon them.

24 The prosecution was required to prove beyond reasonable doubt that the risk to persons not in the appellant's employment arose from "the conduct of his undertaking, namely, the provision of engineering advice, directions and drawings for use at the premises by the persons whilst they were at his place of work". 25 The appellant's submission is that it was not open to his Honour to find beyond reasonable doubt that the appellant's failures as particularised above occurred at the relevant time whilst the relevant persons were at the appellant's place of work. 26 The only relevant or material times where a breach of s 16(1) could have occurred was 1 to 3 September 1998 because any acts or omissions before those dates are time barred by virtue of s 49(1) of the OH&S Act. This section provides that proceedings must be instituted within a period of two years after the act or omission alleged to constitute the offence. The application for summons was filed on 1 September 2000. 27 Haylen J made the following observations in respect of the place of work issue in Inspector Carmody v Tsougranis (No 2): [221] It is appropriate at this point to repeat the terms of s 16(1): Every employer shall ensure that persons not in the employer's employment are not exposed to risk to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. It is apparent from the submissions made on behalf of the defendant that it is not in contest that the work site was, in the relevant sense, the defendant's place of work. The focus of attention appears to be on an identification of what was the defendant's "undertaking", as that term is used in s 16(1) of the Act. The notion of a "place of work" and an "employer's undertaking" have been broadly construed and for understandable reasons. Thus, in Inspector Clarke v W C Meinhardt and Partners Pty Ltd it was held that the "place of work includes every area which may be affected by the work being done". Similarly, the place of work includes the immediate environs which may have been affected by the conduct of the business (see Inspector Page v Woolworths Ltd, unreported Peterson J, CT93 /1044, 9 September 1994).

[222] The Full Bench in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 262 was of the view that, under s 16(1) of the Act, an employer's "undertaking" and "place of work" were appropriate to be dealt with separately. In relation to the expression "undertaking" in s 16, the cases suggest that it is necessary to consider the contract or arrangement involving the defendant. Thus, in Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58, Cahill V-P was of the view that, although the work undertaken by the defendant was coming to an end, it had not concluded until there was a handover to the proprietor upon satisfaction that the work had been properly completed. Similarly, a Full Bench in Mainbrace Constructions focused on the contractual or other arrangements involving the defendant. These considerations informed the conclusion reached by Walton J, Vice-President in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison. 28 It will be observed that before Haylen J, the appellant accepted that the worksite was the defendant's place of work and his Honour accepted the correctness of that concession. Nevertheless, senior counsel for the appellant submitted as the matter involved a question of jurisdiction the Full Bench should re-determine the matter. 29 It was submitted by Mr Crawshaw SC, who appeared for the respondent with Ms P Lowson of counsel, that even if the appellant succeeds in his argument that the trial judge's finding in relation to place of work cannot be supported having regard to the evidence at first instance, there will still be a need to determine whether an offence under s 17 was committed by the appellant. Such an offence was also the subject of charges which were only pressed in the alternative if the s 16 charge was not established. Haylen J was satisfied that the defendant was an employer in the relevant sense and at a relevant time, and that it was therefore unnecessary to consider the alleged breach of s 17(1)(a) of the Act. Mr Crawshaw further submitted that in relation to the "place of work" issue there would need to be a re-determination if the Full Bench accepted the appellant's argument that the trial judge did not make a finding in relation to "place of work". 30 Although his Honour rejected some of the appellant's evidence, the following evidence was not the subject of any adverse finding by his Honour. 31 The appellant first met Mr Agapiou on 1 June 1998. Mr Agapiou had said that he wanted the appellant to prepare structural plans for some proposed building work. Mr Agapiou showed the appellant some architectural drawings. The appellant said he had drawn some freehand sketches on the architectural plans for Mr Cassimatris to input into the computer. The appellant met Mr Agapiou on 27 July 1998 at the site and finalised the architectural plans some time between 27 and 31 July 1998. The appellant's evidence was that he had a meeting with the builders on 31 July 1998. Mr Hamilton's evidence was that the meeting occurred a day or two after work commenced. 32 Mr Papaianni's evidence was that the meeting occurred towards the end of one week and that work commenced the following week. Both of the builders believed that it occurred in early August. The appellant's evidence was that when the builders left his office, he was waiting to hear from them. According to the builders they intended to contact him to inspect the formwork prior to concrete being poured for the footings. The appellant's evidence was he heard nothing more from the builders until the accident on 3 September although his telephone message book recorded a message from Mr Hamilton which was left on either 2 or 3 September 1998 at 11.00 am requesting the appellant's attendance to inspect the formwork the following day. 33 The appellant's evidence in respect of his costs for the work, which was accepted by his Honour, was: The plans will cost you $800, which will include the preparation of the plans and three site inspections during the construction phase in order for me to certify the end product. Because South Sydney Council no longer carries out inspections on structural matters and I have to inspect the reinforcement prior to pouring the footings; at the first floor and roof framing prior to planning, and the complete product. So that I can complete the second part there is a special form that South Sydney has which is a two part certification in order for me to complete the second part that the work has been completed in accordance with the plans. As far as the first part is concerned when you pick up the drawings I will have to fill in the first part so you can lodge the plans with Council. 34 Mr Papaianni gave evidence (also accepted by his Honour) that he was first approached by Carl Hamilton to do some building work on the premises about three months before the accident. He stated that he first attended the premises about six weeks before the accident. He stated that when he first went into the premises, Mr Agapiou gave him some architectural plans. Mr Papaianni stated that on the second occasion he attended the premises, he and Mr Hamilton provided Mr Agapiou with a quote. He stated he received the structural plans from Mr Agapiou either on the day he formulated the quote, or later on. Mr Papaianni stated that he found out from the structural plans the name, the phone number and the details of the structural engineer, the appellant. He stated that after he received the structural plans, he telephoned the appellant. Mr Papaianni, Mr Hamilton and the deceased went to see the appellant a couple of days before they actually commenced work on the premises. 35 The appellant submitted that, in the circumstances, the site could not be the appellant's place of work. The appellant's argument was that even conceding that Mr Tsougranis had an undertaking which largely produced design work for engineering specifications in relation to the particular site, that is a finding about the nature of the undertaking, but does not make the site Mr Tsougranis' place of work. It was submitted that there has to be a temporal aspect for that to be Mr Tsougranis' place of work. 36 The term "place of work" is defined in s 4 of the OH&S Act as "premises or any other place, where persons work" and "premises" is defined as: (a) any land, building or part of any building; (b) any vehicle, vessel or aircraft; (c) any installation on land, on the bed of any waters or floating on any waters; and (d) any tent or movable structure. 37 It is clear that the phrase "place of work" should not be confined to a geographically fixed or central office or place: Mainbrace Construction Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at 94 - 98. 38 There is a considerable body of authority in this Court which establishes that the Court must determine beyond reasonable doubt that the place in question was the "employer's place of work" at the time of the accident or when the breach of the OH&S Act occurred. In WorkCover Authority of New South Wales v James Hitchcock (2004) 135 IR 377, Walton J Vice-President held at [307]: The issue is not, in a conceptual sense, where the place of work begins or ends but whether the place in question was in fact the employer's place of work at the time of the accident. 39 In WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, matter No CT 1115 of 1995, 8 August 1996) Maidment J observed at pages 6 - 7: The issue of construction in this case is one which, it would seem, has not previously been considered by a court. The nearest issue decided in this Court is probably that decided by Fisher CJ in Inspector Clarke v WL Meinhardt & Partners Pty Ltd concerning prosecutions under ss.15 and 16 of the Act. The defendant employer had designed a facade support system which was required to enable the facade of an historic building to remain safe whilst being incorporated into a new building on the same site. The facade collapsed. The support system was constructed by a different employer. Fisher CJ rejected a no case to answer submission which was based upon the contention that the site was not the defendant's place of work, it being argued that the defendant employer's engineering office was its place of work. At the time the facade collapsed two employees of the defendant employer were on site for the purpose of inspecting timber packing which was integral to the facade support system.

Every employer shall ensure the health, safety and welfare at work of all his employers.

I consider the phrase "at work" in s.15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving a site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties cast upon him by the Act.

With respect to the duty under s.16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed. As I understand this decision his Honour identified the temporal aspect of s.15(1), however, it being unnecessary to his decision, he did not determine the temporal obligations under s.16(1). The use by his Honour of the phrase "work being done" in the last sentence of the excerpt does not appear to me, in its context, to represent a concluded expression of view as to any temporal aspects of s.16(1).

It would seem to me to be inconceivable that a passenger in the inclinator would consider himself, in the ordinary and natural sense of the words, to be "at the defendant's place of work" just as, upon entering his year old home, he would not consider it to be the builder's place of work.

On the other hand I would think that a factory or a building site would, in the ordinary and natural sense of the words, be considered to be the occupier's or builder's place of work during downtime such as weekends, in each case its character as a place work having an obvious continuance.

40 On 3 September, the appellant had no employees at the site and the appellant did not enter or leave the site on that day . 41 The respondent contended that the work of the appellant continued on the site on 3 September 1998 even though he was not physically present, because his plans were still being used to construct the footings. 42 As Fisher CJ observed in respect of s 15(1) of the OH&S Act, in Inspector Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 & 1213 of 1990, 30 June 1992) the phrase "at work" has temporal connotations. Similarly, in our view, in respect of the duty under s 16(1), it is necessary to determine the temporal obligations on 3 September 1998 of the appellant.. The legislation does not require the appellant to ensure the product of his work, his advice, directions and drawings, were devoid of hazard. No actual work was being performed or "being done" in the conduct of his undertaking at the site. In other words, the appellant was not giving advice, giving directions, or making drawings.. The OH&S Act is directed to workplaces and does not impose an obligation to ensure that the product of that work is free from hazard: Boral Elevators Clearly, the site was the builder's place of work, but there was no evidence before his Honour of a continuance of the work of the appellant. The obligation falls upon the prosecutor to demonstrate that the elements of s 16 have been proved unless there is a clear admission which there was not in this case. 43 In Boral Elevators, Maidment J found that the obligation cast upon the defendant by s 16(1) was confined to the periods during which maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work within the sense of s 16 of the Act. 44 We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1). 45 In WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325, Walton J Vice-President considered s 16(1) of the OH&S Act and extensively reviewed the authorities that had considered s 16. His Honour said at [48] - [60]: [48] The Full Bench in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 262 considered that when dealing with issues raised under s16(1) as to an employer's "undertaking" and "place of work", it was appropriate to deal with the two aspects of the section separately.

[49] The phrase "place of work" is defined in s4 of the Act to mean "premises, or any other place, where persons work". The question of whether a particular location in which an accident occurs is an "employer's place of work" for the purposes of the Act is a question of fact to be determined on all the facts and circumstances of a particular case: Technical and Further Education Commission (at 262).

[50] What is properly to be considered an employer's "place of work" for the purposes of s16 of the Act was considered by Fisher CJ (then Chief Judge of the former Industrial Court of New South Wales) in Inspector Richard Clarke v W. L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos. 1212 & 1213 of 1990, 30 June 1992). That case involved prosecutions under ss15 and 16 of the Act arising from the collapse of a heritage building facade which was being maintained as part of a large redevelopment operation in Hunter Street, Sydney. The defendant, in that matter, was a firm of engineers contracted to design the system of support for the heritage facade during the redevelopment. The facade collapse resulted in injury to both employees of the defendant who were involved in inspections on the site (giving rise to the prosecutions under s15 of the Act) and employees of other contractors on the site (giving rise to the prosecutions under s16 of the Act). The defendant pleaded not guilty, contending that the definition of "place of work" in s4 of the Act and the reference to the "employer's place of work" in ss15 and 16 of the Act should be construed as referring to the defendant's general office, being a site over which the defendant exercised "control", as opposed to the various construction sites which the defendant as a firm of engineers was periodically required to attend. Fisher , CJ in rejecting that submission, stated (at 11):

I consider that this specialised Act should be interpreted in industrial terms as a practical document applying to the customary organisation and industrial circumstance of the building and construction industry, of which Parliament would have been aware.

Today, working on building and construction sites, are many classes of employees, manual workers, tradesmen, contractors, sub-contractors, skilled operators, engineers, consultants and professionals. They come in many categories of contractor, sub-contractor, and manufacture and erection contractors. Commonly they may work on one or more sites a day. Even this facade retention contract required four separate firms (see par.3 of the Statement of Facts) and many classes of labour for its completion.

In the sense advanced by Mr Gee, their "place of work", even though they may see it for only a few minutes a day, might be an office, a builders yard, a warehouse store or factory. Mr Gee's submission would on many sites, disqualify at any one time the greater part of the work force from the concept of being "at work" while attending the site to work.

I consider the phrase "at work" in s15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving the site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties case upon him by the Act.

With respect to the duty under s16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the site collapsed. [51] The decision in Inspector Charles v Meinhardt and the phrase an "employer's place at work" in s16 of the Act were considered by a Full Bench of this Court in Mainbrace Constructions Pty Ltd v Workcover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84. In that case, the defendant was the principal building contractor, who had been engaged, amongst other things, to demolish and reconstruct an interior wall of a building. That wall had attached to it, iron angle support brackets for a trafficable ceiling above, cable trays and thermostats as well as other things. The wall itself and the iron brackets provided physical support to the trafficable ceiling above. For the removal and attachment of the cable trays and thermostats the defendant engaged a contractor, Kennedy-Taylor. During the demolition and reconstruction, temporary supports were put in place. With the reconstruction of the new wall all but complete, and after the removal of the temporary supports, employees of Kennedy-Taylor accessed the trafficable ceiling for the purposes of determining the appropriate location for the reattachment of the thermostats. The ceiling collapsed and the men were injured. The defendant, at no time, was required to perform work on the ceiling itself nor did it have control of access to the ceiling.

[52] The parties were agreed, and the Full Bench was satisfied, that the first two elements of the offence under s16(1) had been established. That is, the defendant was an employer and the persons whom the prosecutor alleged had been exposed to the relevant risk were not in the defendant's employ. The questions on appeal were whether the risk to safety and the consequent manifestation of that risk by the collapse of the trafficable ceiling occurred at the defendant employers "place of work" and, further, whether it arose from the defendant's undertaking.

[53] With regard to the expression 'place of work', the Full Bench said at [48] - [52]: 48 It is our view that the work carried out by the appellant so affected the ceiling and was in such proximity to it that the ceiling space, including the trafficable suspended ceiling, must be regarded as the defendant's place of work for the purposes of s16(1). To place an interpretation on "place of work" by, for example, limiting it strictly within the lines on an architect's drawing or to the construction of a wall but not the ceiling to which it is attached and the space above it, would relieve the appellant of any liability in respect of any area in the "immediate environs" that may be affected by the acts or omissions of the appellant. Such an approach would, we believe, defeat the objects of the statute.

49 In WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 the Court ( Wright J, President, Walton J Vice President, Hungerford J) said at 261: The decided cases make it plain that the question of whether the "employer's place of work" ingredient in s16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example, Inspector Clarke v W L Meinhardt and Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Ltd ). 50 In Inspector Clarke v Meinhardt the question arose as to whether the public footpath and roadway onto which the facade of a city building collapsed were within the defendant's place of work. Fisher CJ held: With respect to the duty under s16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed. 51 In Inspector Page v Woolworths Ltd (unreported, Peterson J, 9 September 1994) his Honour adopted the approach of Fisher CJ in Inspector Clarke v Meinhardt in opting for a broad construction of "place of work" in s16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.

52 While each case will indeed be a question of fact, we consider that a broad construction of the term "place of work" in s16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case. [54] As to the expression 'undertaking' in s16 of the Act, the Full Bench in Mainbrace Constructions stated, relevantly to this matter, (at [19]): The issue comes down to whether the re-connection of the thermostats to the newly erected northern wall was part of any contract or arrangement between the appellant and Kennedy-Taylor, and whether the three employees were in the ceiling space pursuant to that requirement . (emphasis added) [55] In that case, the Full Bench considered there was no evidence indicating that the reattachment of the cable trays and thermostats was part of the defendant's contract and, therefore, was not to be considered a part of the defendant's undertaking. That aspect of the prosecution in Mainbrace failed.

[56] A similar consideration of the expression 'undertaking' in s16 of the Act is to be found in the judgment of Cahill J, in Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58. In that case the defendant, a small company operating a demolition and excavation business, was contracted to demolish the Seabreeze Hotel near Tom Ugly's Bridge in the Sydney suburb of Blakehurst. The defendant, in order to prevent debris from falling onto the footpath or roadway of the adjacent Princes Highway, hired a company to erect a hoarding. The hoarding was erected and secured to the face of the building to be demolished. The structural integrity of the hoarding was such that it would not be stable if it were not attached to the building - that is, if it were a free standing structure. The trial judge found that the hoarding, when in that condition, was not stable and was not erected in accordance with the relevant Australian Standards. In due course, the connection between the hoarding and the building was severed by the defendant so as to allow the building to be demolished. No steps were taken by the defendant to contact the scaffolder to have them secure the structure of the hoarding (or remove it) and the defendant took no steps to itself secure the hoarding. Shortly thereafter, during high winds, the hoarding collapsed onto the adjacent footpath and roadway causing damage to passing vehicles and minor injuries to the vehicles occupants.

[57] The collapse of the hoarding occurred on Sunday 6 November 1994. The contract of the defendant was found by his Honour to have been concluded on 8 November 1994.

[58] Counsel for the defendant in that matter did not dispute that the adjacent footpath and roadway were part of the defendant's "place of work", if the defendant did, in fact, have on the day of the collapse, an "undertaking" within the meaning of the Act. What remained in issue was whether, on the day in question, the defendant was conducting an undertaking.

[59] His Honour noted that most of the demolition work had been completed and considered the terms of the defendant's contract. The contract noted that certain work was to be performed by the defendant. At the date of the collapse not all that work had been completed. That work was the subject of discussion between the defendant and its principal on 8 November 1994. His Honour noted that following the discussion on 8 November it was agreed that the remaining work would be completed pursuant to a separate contract with the defendant. His Honour noted a certificate of practical completion was issued to the defendant by its principal and the defendant "handed over" the site to its principal. This brought the defendant's contract to an end. His Honour considered the defendant's undertaking as follows: Having regard to these considerations, I am of the view that the defendant's connection with the site cannot be regarded as being at an end until a handover to the proprietor had been effected in circumstances where the proprietor's project manager signified his satisfaction that the work required had been satisfactorily completed. Until that occurred, the demolisher, in this case the defendant, in my opinion was to be regarded as possessing a place of work, and as conducting an undertaking in relation to that place of work, within the meaning of s.16(1) of the Act. In my view, that handover did not take place until 8 November at the earliest. The date of the collapse of the scaffolding and of the alleged offence was 6 November. (emphasis added). [60] In the present case, the defendant's work involved the construction of the pool. It is evident that the risk arose from the construction of the pool and the fact that the pool was not covered at the time of the accident. The partial filling of the pool with water increased the risks associated with the pool not having been adequately covered or enclosed. Although the majority of the work on the construction of the pool had been completed by the defendant, it was clear that the contract between the defendant and the owners of the property required the defendant to undertake further work, particularly the installation of a filtration system and final cleaning and instructions to the owners. The defendant's undertaking was not finished until the pool was finally completed and ready for use. The defendant understood his further obligations in this respect and, indeed, carried them out upon the owners moving into the completed premises. The site remained a "place of work" in the sense referred to in Meinhardt, namely "every area which may be affected by the work being done" and an undertaking for the defendant at the time of the accident. 46 What can be distilled from his Honour's comprehensive analysis is that the question of whether a particular location in which an accident occurs is an "employer's place of work" for the purposes of the OH&S Act is a question of fact to be determined on all the facts and circumstances of the case. 47 In WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Ltd [2003] NSWIRComm 370, the defendant was charged with a breach of s 16(1) of the OH&S Act as a result of a gas explosion on 4 December 1995 outside an amusement centre located near the Kogarah Railway Station. About two weeks before the explosion, the defendant had removed some pavers and a gas box without first removing a gas pipe or cutting off the gas supply. As a result, the gas line was partially exposed. At that time, construction work at the Railway Station was in progress. 48 Schmidt J held at [167] - [168]: [167] There can be no doubt that the service pipe, which was breached on 4 December always formed a part of the defendant's undertaking. The same cannot be said in relation to the place of work. Work was undertaken by the defendant outside Shop No 7 on 10 November. On the evidence, it was not until 21 or 22 November, that a risk in reality arose, with the removal of the pavers and the exposure of the pipe while footings were demolished. In the circumstances revealed, it is difficult to see that the site was then the defendant's place of work, where those whom it had not employed were exposed to risk, contrary to its obligations under s16. [168] The mere fact that part of the defendant's gas reticulation system there lay in the ground, cannot be sufficient to make it at all times the defendant's place of work. Nor could the fact that at one time, the defendant had there performed work on the pipes, thereafter make that place the defendant's place of work. If that were the test, inevitably the result would be that anywhere that the defendant had at any time ever laid pipes or other parts of its system, would always remain thereafter the defendant's place of work, with ongoing obligations under s16 of the Act resulting. 49 Haylen J's findings concerning the breaches of s 16 of the OH&S Act by the appellant were reached on the basis of the wrong assumptions being made by the appellant in drafting the plans; his failure to note on the plans the need to support or brace the wall and his failure to inform the builders or Mr Agapiou of the need to support the wall. Each of these findings involved omissions by the appellant, which occurred in late July 1998 which period falls outside the two year limitation period in s 49(1) of the OH&S Act. 50 Mr Papaianni's evidence was that after the meeting in the appellant's office in June or July he did not see the appellant again and he did not have any further conversations with him. His evidence was that the appellant "was to be contacted by Mr Agapiou when we were ready for an inspection for that steel work and which we were just at that stage where we were (sic), and it didn't happen because the accident happened that particular day and that was it". 51 Mr Agapiou's evidence was that he met the appellant only twice in relation to the job and those occasions were relatively close in time. He could not recall whether he had any further contract with the appellant after 27 July 1998. There is no evidence that Mr Agapiou had contact with the appellant after 27 July 1998 although he did expect that there would be further contact between the builders and the appellant. 52 Mr Game submitted that two separate enquiries had to be undertaken, the first being in respect of the nature of the undertaking and the second being was that the place of work of the appellant on 3 September 1998. In other words, the question for determination is whether or not the work site could have reasonably been the appellant's place of work on 3 September 1998. 53 The essence of the respondent's submission is that there was some ongoing obligation in relation to the particular aspect of the work on 3 September 1998 and that ongoing obligation establishes the basis upon which it could be found this was at the employer's place of work for the purposes of s 16. The argument was put on the basis that the obligation arises temporally because of the ongoing nature of the participation in the project by the appellant at that particular point in time. 54 The appellant contends that all that the respondent's approach would establish would relate to the undertaking at the particular location or site and not that the site was the appellant's place of business. Although the appellant, Mr Tsougranis, may have had obligations in relation to the premises (that is his undertaking) the site was not his place of work. 55 As the authorities demonstrate, what is properly considered an "employer's place of work" for the purposes of the OH&S Act is a matter of fact determined by the circumstances of each case. In our view, the mere fact that engineering plans were prepared by the appellant and those plans have ramifications for what work was to be done on the site, does not necessarily make the site the engineer's place of work. 56 It would seem to us to be highly unlikely that any builder or contractor or Mr Zaronias would have considered themselves, in the ordinary and natural sense of the words, to be "at the appellant's place of work" between 1 and 3 September 1998. Even if the appellant had a contractual obligation to continue providing advice to Mr Agapiou or the builders as at 1 to 3 September 1998, that does not result in the premises being the appellant's place of work at the relevant times, nor does the fact that the builders had access to the engineering plans at the time of the accident result in the premises being the appellant's place of work at the relevant times. The only remaining contractual obligations that the appellant had as at 3 September 1998 was to carry out an inspection of the work before the builders undertook the concrete pour. It is conceivable that the site may have become, or again become, the appellant's place of work at the time of the inspection. That, however, was not the case at the time relevant to the charge laid against the appellant. 57 The facts here are thus distinguishable from the facts in WorkCover Authority of NSW (Inspector Farrell) v Morrison. In that case, the pool being constructed was held to be the defendant's place of work because the defendant had not completed his contract as there remained work to be done prior to the "handing over" of the completed pool. That is to be contrasted with the facts in this case which are more complex but nevertheless make plain that the appellant had completed all that was required of him until the time of the inspection prior to the concrete pour. 58 It was not reasonably open on the evidence to make the finding of fact that the site was the appellant's place of work on 3 September 1998. 59 We do not find that there is any impediment in this issue being raised on appeal. As observed earlier, Haylen J at [221] - [222] in Tsougranis (No 2) did accept the concession on this point by the appellant. 60 That such an approach is available was recently accepted by the High Court of Australia in Fingleton v The Queen (2005) 216 ALR 474. For example, Gleeson CJ observed at [6]: On that basis, the case being one in which the appellant may have had available to her a point of law which was a complete answer to both of the charges against her, the point may be raised for the first time in this Court, in accordance with the principles stated in Gipp v R and Crampton v R (footnotes omitted). 61 We do not consider that the charge under s 16 has been made out. The preparation and the existence of engineer's or engineering drawings in respect of a particular worksite, do not necessarily result in the worksite becoming the place of work of the author of the drawings when the drawings are acted upon by builders on site. In some circumstances, the fact or existence of an engineer's or architect's drawings may assist to demonstrate that the worksite is the engineer's or architect's place of work where the engineer or architect undertakes the supervision or some supervision of the work. The fact that in this case Mr Tsougranis visited the site prior to the incident does not make it his place of work on 3 September 1998. 62 We conclude that the appellant is not guilty of the charge. In reaching this decision we consider that decisions such as Hitchcock are distinguishable from the present case having regard to their respective facts. 63 In Hitchcock, Walton J Vice-President examined the meaning of "employer's place of work". The issue in the case was whether an articulated lorry driven by an employee of the defendant and the relevant exposure to risk occurred at the employer's place of work, that being, the lorry. 64 As we have already observed, the matter argued before the Court in Hitchcock was whether the lorry (and every area which may be affected by the work being performed in it) was the company's place of work as opposed to the company's place of work being limited to its depot. His Honour found that the lorry was the employer's place of work observing at [315] - [316]: [315] I have already found that it is incontrovertible that lorries (and any area which may be affected by the work undertaken in them) are places of work: no other conclusion could be supported in the light of the Act's definitions and decided cases such as Inspector Clarke v W L Meinhardt. [316] If one considers the purposes of the Act in the context of this case, it becomes clear that those purposes would be subverted by a finding that the lorry was not the Company's place of work. The Company's undertaking encompassed transport of goods by lorries, and little, if anything, else. The defendant accepted that the relevant work being performed at the time of the accident arose from the conduct of the Company's undertaking for the purposes of s 16 of the Act, a concession which was plainly correct. Further, the performance of almost all of its work took place in or around the lorries, wherever they may be: from transporting goods from A to B and loading or unloading goods to the logistical aspects (drivers were directed to their next job remotely, while they were far from the depot, in their lorries). In a very real sense the Company depended upon work being carried out in the lorries: drivers would work for days at a time without visiting the depot and almost all of their work was performed elsewhere, in their lorries. Of course, it is the performance of work which may give rise to risks to members of the public (particularly where the performance of work involves driving on public highways in what may amount to a dangerous manner) and it is precisely those risks the Act seeks to counter. 65 The appellant submitted that if it was found the site was his place of work, the appellant did not have control of the workplace as that term is found in s 17 of the OH&S Act. We have already found the site was not the appellant's place of work but we propose to consider the s 17 charge, as in light of his Honour's finding, he found it not necessary to do so. Section 17 provides as follows:

17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of:

(a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to:

(a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 66 In McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464, the Full Bench considered a charge laid under s 17(1)(b) of the Act. In that case, the defendant, an engineer, provided advice to an engineering company in relation to work carried out on a particular site and the safety of plant equipment. The engineer provided incorrect advice about the safety of that plant equipment. The unsafe equipment collapsed and injured some people. The engineer contended that he gave his advice on 16 March 1994 and further advice on 21 May 1994. When the accident occurred on 6 July 1994, he no longer had any control over the plant or substance over which he had given advice. The prosecutor contended (at 477) that the engineer's submission "ignores the fact that the control exerted by the appellant to any extent did not arise until some act in reliance upon the admittedly erroneous advice" and that "it ignores the continuing nature of the obligation contractually assumed by the appellant". 67 The Full Bench held at 478: The answer to the problem, on our approach, requires determination as to whether the concept of "control" in s 17 comprehends a continuing liability to ensure safety beyond the actual giving of the advice. If it does, then the prosecution here is sustainable as being within time; if it does not, then the charge must be dismissed as being statute barred. 68 Later, at 481, the Court stated: Put another way, control must be shown to have been present on 6 July 1994 when the operative act or omission constituting the offence occurred. 69 The appellant contended that the analysis in McMillan Britton and Kell is relevant in this case to determine the interplay between s 17(1) and s 49(1) of the Act. The appellant submitted the operative act or omission constituting the offence as found by his Honour did not occur between 1 to 3 September 1998. 70 At the time of the accident on 3 September 1998 or at 1 or 2 September 1998, the appellant was not present at the premises. He had not been at the premises since 27 July 1998. In our view, he had no control at all over the premises or what was happening at the premises. He had not spoken to the builders or Mr Agapiou since 31 July 1998. Mr Papaianni's evidence was that the appellant was to be contacted by Mr Agapiou when the builders were ready for an inspection of the steel work. Mr Papaianni's evidence in the appeal proceedings is that he had never spoken to the appellant about the fact that there was to be an excavation in the rear of the premises. The appellant had no input into the activities being undertaken at the premises for the weeks prior to the accident. He had not been asked to provide any advice at any time after the work on the premises had commenced, nor had he provided any advice since the work on the premises had commenced. We therefore find that between 1 and 3 September 1998, the conduct of the appellant's undertaking had no real or substantial connection with the premises. We consider that the s 17 charge is therefore not made out. 71 The second ground of appeal advanced by the appellant was that his Honour failed to direct himself properly as to the burden and standard of proof and failed to make findings in accordance with the burden and standard of proof. 72 The essence of the appellant's criticism in respect of this ground of appeal is the language used by his Honour. In particular, the appellant pointed to his Honour's use of the word "prefer" submitting that such language is strongly suggestive of and consistent with findings on the civil standard but not the criminal standard. However, it seems to us that his Honour was clearly cognisant of the appropriate standard of proof and indeed found matters proved to that standard. In this regard, his Honour observed at [218]: … These are the primary findings, which satisfy me, to the requisite standard, that a breach of s 16 against the defendant has been made out. 73 Furthermore, in written submissions provided to his Honour, the appellant submitted "[i]n order to succeed under s 16(1), the prosecution must prove, beyond reasonable doubt". The defendant submitted "[t]he elements of the offence created by this section, which must be established to the criminal standard of proof …". 74 His Honour made specific reference to the prosecutor's submissions in this regard at [139]. 75 This ground of appeal is not made out. 76 The next ground of appeal was that there had been a miscarriage of justice in that: (a) the prosecutor called Michael Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the WorkCover Authority of New South Wales ("WorkCover") under s 15(1) of the OH&S Act and that such prosecution was an abuse of process of the Court; and (b) the prosecutor failed to advise the appellant or his lawyers before judgment that the proceedings against Mr Papaianni had been withdrawn or dismissed. 77 In order to deal with this ground of appeal, it is necessary to briefly set out the history of the proceedings against Mr Papaianni. 78 On about 10 March 2000, proceedings were brought by Christine Zaronias and her two dependent children in the Compensation Court of New South Wales. The proceedings were brought under section 25 of the Workers' Compensation Act 1987 ("the WC Act"). The application sought a declaration that Mr Zaronias ("the deceased") was a "worker" within the meaning of the WC Act. WorkCover was the second and fourth respondent to those proceedings because the first and third respondent, Michael Papaianni and Carl Hamilton were uninsured. WorkCover filed answers to the Application in which it denied that it was liable to pay the applicant the compensation claimed upon the ground that it did not admit that the deceased was a worker or a deemed worker within the meaning of the WC Act. At the hearing of the Application, Mr Candy, who appeared for WorkCover, called evidence from Andrew Lazars the effect of which was that the deceased was only a volunteer rather than a worker when he appeared at the premises on 3 September 1998. 79 On 28 May 2001, Acting Judge Burke found there was no contract of service between the deceased and Mr Papaianni, and therefore the applicant was not entitled to an award under the WC Act because he was a volunteer and not a worker. 80 On 31 July 2002, the Court of Appeal dismissed an appeal by the applicant. In his reasons Meagher JA (with whom Forster AJA and Ipp AJA agreed) held that the findings of fact made by Burke AJ were entirely open to him and were unsurprising. His Honour held at [8] that "once his Honour made his primary findings of fact by believing what Mr Papaianni said, the question "employee or volunteer" could only be answered one way, i.e. volunteer". 81 In separate proceedings on 1 September 2000, the respondent in this matter, Inspector Carmody, commenced proceedings against Mr Papaianni under section 15(1) of the OH&S Act. In the application for summons, it was alleged that Mr Papaianni employed the deceased to work as a general hand/labourer at the premises between 27 July 1998 and 2 September 1998. In the supporting affidavit by Inspector Carmody sworn on 31 August 2000, Mr Carmody deposed that "during the period on and prior to 3 September 1998 the builders employed Jim Zaronias (the "worker") as a casual labourer to work at the premises". 82 On 13 September 2000, Hungerford J ordered Mr Papaianni to answer the offences alleged by the prosecutor. 83 On 30 August 2002, Mr Papaianni sought orders that the summons against him under section 15(1) of the OH&S Act be dismissed as an abuse of process. 84 The appellant contended that WorkCover adopted two totally conflicting positions in relation to the legal relationship between Mr Papaianni and Mr Zaronias. In the Compensation Court proceedings, its position was that Mr Papaianni was not an employer and there was no contract of service between Mr Papaianni and the deceased. In the proceedings before the Industrial Relations Commission of New South Wales in Court Session, WorkCover took the opposite position. 85 Nextly, it was argued that his Honour had fallen into error by refusing to give Mr Papaianni a certificate under s 128 of the Evidence Act 1995. 86 On 25 March 2002, the hearing of the prosecution against both the Appellant and Mr Papaianni commenced. On the first day of the hearing, Mr Papaianni appeared without legal representation. His Honour adjourned the matters against Mr Papaianni to enable him to obtain legal advice. The matter was adjourned until 14 June 2002. Mr D Sibtain, who appeared as counsel for the appellant, applied for Mr Papaianni to give evidence "in relation to these proceedings against my client and for the production of a certificate [under s 128 of the Evidence Act]". …In view of the fact that he was no longer facing prosecution today, I would ask that a certificate be issued". 87 On 29 August 2002, Mr Papaianni was sworn. Immediately, there was a argument as to whether he should be required to answer questions and whether he should be given a certificate under s 128 of the Evidence Act. 88 During the course of argument, Ms P Lowson of counsel, who appeared for the prosecutor stated: Mr Papaianni is called as part of the prosecution case essentially to avoid any inference being drawn from his non-attendance or his not being called because he was a person involved in the building works. …in terms of what we apprehend Mr Papaianni's evidence to be, none of it is directly linked to the prosecution against Mr Tsougranis that arises out of Mr Agapiou but because those various links it was my view that it was necessary to call Mr Papaianni to establish what he was doing and when and what was said when, to avoid any adverse inference being drawn. 89 The next day, Ms Lowson modified her position and stated that the prosecution was calling Mr Papaianni on certain matters to prove certain facts in the prosecution's favour. She cited as an example the issue of the receipt of the structural plans. She also stated that Mr Papaianni may give evidence that will be used to rebut a defence that would otherwise be raised. 90 During examination-in-chief, Ms Lowson began to ask Mr Papaianni questions about what work he had done on the premises. Counsel asked "did you dig the footing trenches in the backyard?" Mr Glover, solicitor, who appeared for Mr Papaianni objected to the question and applied for a certificate to be issued under s 128 of the Evidence Act. 91 There then followed very lengthy debate about whether Mr Papaianni should give evidence and whether he should be given a certificate. Both the prosecutor and counsel for the appellant submitted that it was in the interests of justice for Mr Papaianni to give evidence. Counsel for Mr Papaianni submitted that it was not in the interests of justice. 92 Mr Sibtain's submission was that Mr Papaianni should give evidence and that he should be given a certificate. He said that he would ask questions of Mr Papaianni, and: Those answers to those questions will be fundamental to the issue that needs to be resolved in these proceedings which is the causal connection between the conduct of my client, and risk, which obtained at the site. Now it will be fundamental to any attack that my client will be entitled to make on that causal connection that he can explore other relevant causal matters arising by reason of the conduct of others. That will include the conduct of this witness and the conduct of other witnesses will proceed on a similar basis as Mr Agapiou but they are in a different position by reason of the state of his proceedings but the same necessity obtains in respect of this witness as it did and does with Mr Agapiou. 93 During the course of lengthy argument, Mr Sibtain said that the appellant would suffer prejudice if the evidence of Mr Papaianni and Mr Hamilton could not be given. He said that his Honour should compel the witnesses to give evidence. 94 In the course of his judgment, Haylen J referred to the cross-examination that Mr Sibtain proposed to pursue, which would involve asking Mr Papaianni questions about the work he performed on the site and especially the work performed in digging the trenches in front of the wall that collapsed. 95 Haylen J found that Mr Papaianni had established that he has reasonable grounds for his objection to giving evidence. His Honour also found that it was not "in the interests of justice" that Mr Papaianni should give evidence pursuant to section 128(5) and (6) of the Evidence Act. Withdrawal of proceedings against Mr Papaianni 96 On 12 December 2002 the evidence in this matter concluded before Haylen J. 97 On 11 February 2003, the prosecution against Mr Papaianni was dismissed by consent in proceedings before Staunton J. 98 Haylen J's judgment was delivered on 10 April 2003 when his Honour determined the issue of the appellant's guilt. 99 Neither the appellant nor his instructing solicitors were informed prior to 10 April 2003 that the proceedings against Mr Papaianni had been dismissed. 100 The appellant submitted that the conduct of the prosecution was questionable because in the Compensation Court, WorkCover had submitted that there was no contract of service between Mr Papaianni and the deceased whereas they were required to prove precisely the opposite in the prosecution against Mr Papaianni. First, the appellant contended that it was misconduct to call Mr Papaianni as a witness in the appellant's hearing in circumstances where the prosecutor knew that there was a serious risk that Haylen J would not require him to give evidence. At the very least, it was submitted, the prosecutor's duty of fairness required that the matter should have been canvassed at the commencement of the hearing. If Haylen J ruled that Mr Papaianni was not required to give evidence, the prosecution should have prosecuted Mr Papaianni before it commenced its prosecution against the appellant. 101 Secondly, it was submitted the prosecutor breached its duty to both the Court and the appellant in failing to disclose that the proceedings against Mr Papaianni had been dismissed. 102 The appellant, in effect, submits that the test as to whether the failure to disclose the withdrawal of the proceedings against Mr Papaianni resulted in a miscarriage of justice is whether, as a result of that failure, the appellant lost a fair or real chance of acquittal. 103 The respondent conceded in respect of this ground of appeal that the prosecutor called Mr Papaianni as a witness in the proceedings in circumstances where he was being prosecuted by the prosecutor under s 15(1) of the OH&S Act and that this had the effect of limiting the evidence he gave in the trial and that the prosecutor failed to advise the appellant or his lawyers before the judgment on 10 April 2003 that the proceedings against Mr Papaianni had been withdrawn or dismissed. 104 Furthermore, the respondent conceded that if the fresh evidence given by Mr Papaianni on appeal would have changed the result of the trial, the appellant is entitled to succeed on appeal. 105 In light of the decision that we have reached, it is not necessary for us to determine the issue concerning Haylen J's refusal to issue a certificate under s 128 of the Evidence Act. That issue, in effect, became hypothetical as the appeal developed. The circumstances became quite different to those that existed at the relevant time before Haylen J. There was no longer any prosecution pending against Mr Papaianni and the circumstances have been further overtaken by the Full Bench permitting the issue of a summons requesting Mr Papaianni to give evidence. 106 We now turn to the appellant's allegation of a miscarriage of justice and associated matters raised in the amended notice of appeal concerning the conduct of the prosecution. We have earlier referred to the observations of the Full Bench in the interlocutory judgment and the apparent tactical approach taken by the respondent. However, subject to one matter, and notwithstanding our misgivings as to the respondent not calling further evidence in the appeal, we do not consider the issues raised in this regard by the appellant have been made out. We are concerned at the apparent difference in approach taken by the prosecutor in these proceedings and by the WorkCover Authority in the Compensation Court and the Court of Appeal. Nevertheless, although the prosecutor was an officer of the WorkCover Authority, there is no evidence to suggest that he had any role in the proceedings in the other jurisdictions and certainly had no control over them. In these circumstances, we cannot conclude that the differential approach in the respective jurisdictions involved a miscarriage or prosecutorial misconduct. 107 We do, however, consider that a miscarriage occurred because of the failure to advise the appellant of the dismissal of the proceedings against Mr Papaianni at a time prior to the appellant being either found guilty of the offence alleged against him, or convicted and fined in respect of the offence. Nevertheless, we discern no basis to make any adverse finding against the prosecutor's legal representatives, at first instance, since we understand counsel in these proceedings had returned the brief in the proceedings concerning Mr Papaianni and alternate counsel had been briefed; nor is there any suggestion that counsel was involved in the proceedings in other jurisdictions. 108 It may be appropriate to make some general observations as to the duties of a prosecutor. Those duties were recently considered by the Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450 which summarised various applicable judgments of the High Court, see particularly the observations of Greg James J at [39] - [45] as concurred with by Spigelman CJ). 109 It is well recognised that a failure of a prosecutor to comply with his/her duty as prosecutor (as discussed by the High Court in the cases referred to in Kneebone) may amount, depending on the circumstances, to a miscarriage and the ordering of a new trial. 110 Whilst the cases discussed above dealt expressly with the question of the failure of the prosecutor to call a witness to give evidence, it was emphasised that the responsibility of the Crown prosecutor is to "act with fairness and detachment… and of helping to ensure that the accused's trial is a fair one": see Whitehorn v The Queen (1983) 152 CLR 657 at 663 - 664. 111 Similar considerations also apply when a question of the disclosure to the defence of documentary material in the possession or power of the prosecutor arises and such material would tend to assist the defence case. The deliberate withholding of such material could well constitute a miscarriage of justice when viewed against the conduct of the whole trial and so lead to the setting aside of the conviction: R v Reardon (No 2) (2004) 60 NSWLR 454 and R v Spiteri (2004) 61 NSWLR 369. 112 It may well be important where the prosecutor is a person such as an inspector of the WorkCover Authority of New South Wales and where the Authority is taking a certain, or different, position on the facts and the law in other proceedings which relate even indirectly to the prosecution, to advise a defendant of all relevant circumstances, irrespective of where the proceedings have reached. 113 The remaining ground of appeal seeks to raise whether his Honour erred in failing to give himself appropriate warnings, cautions, or directions, concerning the evidence of Messrs Papaianni, Hamilton and Agapiou. 114 The appellant here relies upon s 133 of the of the Criminal Procedure Act 1986 which provides:

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. 115 The appellant contends that s 133 of the Criminal Procedure Act picks up s 165(1)(d) of the Evidence Act. Section 165(1)(d) relevantly provides as follows: 165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: … (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

… (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.

116 Although the appellant concedes that s 133 does not expressly apply to these proceedings, he submits, by application of s 45(1) of the Criminal Procedure Act, this was an appropriate case for Haylen J to have given himself a warning that: (a) the evidence of Messrs Papaianni, Hamilton and Agapiou may have been unreliable because each of them might reasonably be supposed to have been criminally concerned in events giving rise to the proceedings; and (b) he needed to be cautious in determining whether to accept the evidence given by those witnesses. 117 In our view, there is nothing to support this contention where the legislature has made it clear in two separate provisions that s 133 of the Criminal Procedure Act did not apply to the proceedings before the trial judge. 118 The first provision is s 45(1) of the Criminal Procedure Act, which, consistently with the heading of Chapter 3 ("Indictable Procedure") provides that the Chapter in which s 133 is found applies only to indictable offences other than indictable offences dealt with summarily. 119 The second provision is s 168 of the Industrial Relations Act 1996 which now provides that Pt 5 of Ch 4 of the Criminal Procedure Act ("Summary Jurisdiction of Supreme Court and other Higher Courts") applies to criminal proceedings before the Court. This Part does not include s 133. Section 168 was in a different form at the time of the hearing before Haylen J, and referred to the Supreme Court Summary Jurisdiction Act but still did not extend to the then equivalent provision of s 133 of the Criminal Procedure Act. 120 We therefore reject this ground of appeal; nor do we consider Haylen J's judgment is in error, having regard to what we understand is the substance of this ground. ORDERS 121 We consider that the appellant should have his costs of the appeal and of the proceedings at first instance subject to a deduction therefrom having regard to the consideration that a significant element of the success on appeal related to the "place of work" issue which was conceded at first instance and not raised until late in the appeal proceedings. 122 We therefore propose that the following orders be made in this appeal: 1. The appeal is upheld and the orders made by Haylen J and the conviction recorded against the appellant are set aside. 2. The charges against the appellant (the defendant at first instance) are dismissed. 3. The respondent shall pay 75 per cent of the appellant's costs of the proceedings at first instance, and on appeal, as agreed, or, in the absence of agreement, as determined by the Court. JUDGMENT OF THE VICE-PRESIDENT

123 I have had the advantage of reading the draft judgment proposed by the President and Staff J and agree with their Honours' conclusion that the charge brought against the appellant under s16 of the Occupational Health & Safety Act 1983 should be dismissed as the work site in question was not the appellant's place of work on 3 September 1998 for the purposes of that section. However, I wish to make the following additional comments in this respect. 124 At the time of the accident, the appellant had prepared the structural plans in accordance with his contract. He had yet to conduct the three site inspections required under that contract, and to certify the end product. 125 For the reasons given by the President and Staff J, I agree that the site did not become the appellant's place of work by virtue of his structural plans. Nor could it have become his place of work by virtue of the inspections which had not commenced. It is on this latter basis that WorkCover Authority of NSW (Inspector Farrell) v Morrison (No 1) [2001] NSWIRComm 325 may be distinguished. In that case, the defendant pool contractor had, in performance of his obligations under the contract, commenced work at the site (by constructing the concrete shell of the pool), and had further work to perform at the site under the contract (to complete the pool). I consider that the conclusion may have been different here (and undistinguishable from Morrison) had the appellant commenced the first inspection. In that case, the site may have become the appellant's place of work until his obligations under the contract up to certification had been performed. 126 For the reasons given in the draft joint judgment, I also agree that the charges brought under s 17 of the Act must be dismissed. 127 It is for these reasons, I also agree with the orders proposed in the draft joint judgment. 128 PRESIDENT: The orders of the Court are therefore those set out in para [122] above.

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Tsougranis v Inspector Carmody

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Judgment (58 paragraphs)

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Cases Cited (16)

Cited By (2)