WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr GM Watson SC with Ms JL Fredman of counsel SOLICITORS: Colin Biggers & Paisley

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

1 This judgment deals with a notice of motion filed by the defendant on 19 July 2001, in which orders dismissing the prosecutions were sought, on the basis that they had been brought out of time, having regard to the provisions of s49 of the Occupational Health and Safety Act 1983 ('the Act'). The prosecutions had been brought under ss15 and 16 of the Act.

2 By consent, the hearing of the motion was deferred until judgment was given in the appeal from the judgments in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales & Others (2001) 101 IR 271) given on 29 August 2000 ('No 1') and WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales & Others [2001] NSWIRComm 120 given on 31 May 2001 ('No 2'). This agreement reflected that the prosecutions in these proceedings, like those considered in the State Rail Authority cases, had also arisen from the explosions and fire which occurred at Railway Parade Kogarah, in December 1995 and had been commenced after proceedings before the Coroner, in which the causes of those explosions had been considered.

3 The appeal judgment was given on 27 May 2002 (WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd and Ors (2002) 116 IR 128), upholding the appeal. The Full Court held that the proceedings had been commenced with the summonses filed by the prosecutor in those proceedings. It was also concluded that it had been premature to consider whether the prosecutions had been brought out of time, having regard to the provisions of s49(4) of the Act, the summonses required to be issued by a judge of this Court pursuant to s4 of the Supreme Court (Summary Jurisdiction) Act 1967, not having been issued at that point, I having declined to do so for reasons given in the second judgment. The Appeal Bench further concluded that the question of whether the prosecutor had failed to show how it appeared from the material relied upon, that the offences charged had been committed had been considered 'on a wrong premise'. (at p157) This was the question which arose for consideration pursuant to s49(4) of the Act and should not have been considered prior to the issue of the summons.

4 After the appeal judgment, the parties sought the relisting of these prosecutions, together with a fourth prosecution of the defendant brought under s15 of the Act, in matter number IRC 5428 of 1999. Consideration was then given as to whether summonses should be issued, in each case, in accordance with the provisions of s4 of the Supreme Court (Summary Jurisdiction) Act 1967. Summonses in all four matters were issued on 23 July 2002 and the defendant's motion listed for hearing.

5 At the hearing of the motion, Mr Skinner of counsel, appearing for the prosecutor, announced that it wished to discontinue the prosecution in matter number IRC 5428 of 1999. The defendant consented to the discontinuance and that matter thereupon came to an end, with no order for costs being sought.

6 The cases argued had two aspects. The parties developed submissions as to which aspects of a number of the judgments earlier referred to had been correctly decided, as to matters going to the proper construction of s49(4) of the Act.

7 The case of the defendant was that the prosecutions remaining had each been commenced out of time and hence should be dismissed. The prosecutor's case was that the prosecutions had been brought within the time prescribed by s49(4) of the Act, relying upon particulars which had been provided to the defendant as to those parts of the Coroner's report and the proceedings before the Coroner, which it submitted made it appear that the offences charged had been committed. The defendant's case was that material did not support the charges laid.

8 It was common ground between the parties that State Rail Authority (No 1) had been correctly decided, where it was held at p288: 41 …if it appears from the Coroner's report or the proceedings that an offence under the OH&S Act has been committed, then 'proceedings in respect of that offence' may be instituted within 2 years after the date the report was made or the proceedings concluded. These latter words of s49(4) plainly contemplate a prosecution in respect of 'that offence' proceeding and no other. 42 Adopting that approach to the construction of s49(4), with which I agree, it follows that contrary to the construction urged for the prosecutor, a prosecution may only be launched in the time prescribed by s49(4), if it appears from the Coroner's report or the proceedings that the offence with which the defendant has been charged, namely 'that offence', has been committed.

9 Section 49(4) of the Occupational Health and Safety Act 1983 provides: 49. Time for instituting proceedings for offences

(4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

10 Mr Watson SC appearing with Ms Fredman of counsel for the prosecutor, advanced various submissions as to the proper approach to be adopted to the construction of s49 of the Act, to support the view that Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 was wrongly decided, in so far as s49(4) had been construed as not requiring that something must emerge from the Coroner's report or proceedings for the first time, if the extended limitation period is to be available to a prosecutor. These submissions went to the proper approach to construction of a penal statute. I do not propose to detail those submissions.

11 It was further submitted that Walco did not, in any event, here apply, because s49(4) required that what must appear from the Coroner's report or proceedings was that there had been satisfaction, to a prima facie level, (based upon evidence which would be admissible in criminal proceedings), that the offence charged had been committed. It was submitted that State Rail Authority (No 1) was wrongly decided in so far as I there concluded, at p294, that I was bound to follow the conclusion in Walco (at pp289-91), that it was not necessary for the prosecutor to establish, when relying on s49(4) that 'a prima facie case on the charges was put before the Coroner or was contained in his report' (p293). It was further submitted that State Rail Authority (No 2) was wrongly decided, in so far as I there concluded, at pp44-45, that the prosecutor is not limited to evidence in a form admissible at a criminal trial, when seeking to establish from the Coronial material, that the offence charged appeared to have been committed.

12 It was further argued that an implicit requirement of s49(4) was that there had to be an identification of the particular party who committed the offence in the coronial proceedings. A complaint was also advanced that in this case, 'at no time has the Prosecutor attempted to identify the matters which would satisfy this requirement as against AGL.' This argument, too, had been rejected in State Rail Authority (No 1) at p288. It was formally submitted that the decision was wrong, in so far as this point had been decided against the defendant.

13 It was further submitted that State Rail Authority (No 1) was wrongly decided, (at pp294-5), in that I had not concluded that if the prosecutor relied upon what had been revealed in the inquest or inquiry, as opposed to what appeared in the Coroner's report, the summonses were launched out of the extended time provided by s49(4). This followed because those proceedings had concluded in May 1997 and the prosecutions had not been launched until October 1999, a period of more than 2 years.

14 Submissions were also advanced as to how it was that the Coronial material relied upon, did not provide a basis for the conclusion that the offences charged appeared to have been committed. I do not propose here to outline the details of those submissions.

15 The case of the prosecutor was that Walco was correctly decided, as was State Rail Authority (No 1), which applied it. In this respect, it was submitted that the appeal judgment in TMG International was incorrect, in finding that I had erred in holding that had I 'required to be satisfied that a prima facie case had been established on the material before' me 'by the prosecutor demonstrating the offence with which the defendant was to be charged was an offence which appeared to have been committed'. (at p155) To the contrary, it was submitted that I had correctly applied Walco in State Rail Authority (No 1) at pp288 and 294.

16 The prosecutor further submitted that I had been correct in holding in State Rail Authority (No 1) at p295: 'It follows that in considering whether it appears that an offence has been committed under the OH&S Act, s49(4) permits regard to be had to both the proceedings and the report, if both are present in a particular case and only the proceedings, if no report is made by the Coroner.'

17 The prosecutor also submitted that State Rail Authority (No 2) had been correctly decided, when the view was reached at pp44-45, that it was not only evidence before the Coroner in admissible form, which could be relied upon by the prosecutor.

18 The prosecutor also relied upon the orders made in State Rail Authority (No 1), that it provide particulars of the material in the Coroner's report and the proceedings on which reliance was placed in order to demonstrate, in these cases, that it appeared from that material that the offences here charged had been committed. I do not here outline the detail of the submissions advanced about that material so supplied.

19 The arguments advanced in this case carried with them the unusual feature that the prosecutor not only here argued that State Rail Authority (No 1) and (No 2), had been correctly decided in various identified respects, and relied upon the reasoning there outlined to support that submission, but further, that the appeal bench in TMG International, had erred, at least in one identified respect, when overturning State Rail Authority (No 1). The defendant, on the other hand, accepted that some parts of State Rail Authority (No 1) had been correctly decided, but argued that other identified aspects had been wrongly decided.

20 The prosecutor in both State Rail Authority and in this case, was the same, Inspector Maltby, of the WorkCover Authority, although represented by different counsel in the two proceedings. Whether this explains the seemingly different approaches taken by the prosecutor in the various first instance and appeal proceedings was not explored. Nevertheless, the fact that both State Rail Authority judgments have been overturned on appeal, but were here extensively relied upon by the prosecutor and indeed, the orders made in State Rail Authority (No 1) were here voluntarily followed by the prosecutor, are facts which simply presented themselves and thus arise to be dealt with.

21 I turn then to the issues which here require determination. In State Rail Authority (No 1), I observed not only that I was bound by the Full Bench decision in Walco, but that I agreed with it. Walco was referred to, but not reconsidered in either WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited & Ors (2002) 112 IR 332 or TMG International. It follows that any departure from what was decided in Walco is not available to me in these proceedings. The defendant's arguments, to the contrary effect, which I have earlier outlined and do not repeat at this point, must be rejected. I do not repeat the reasoning in State Rail Authority (No 1), as to those matters, but adhere to it.

22 Having in mind the appeal judgment in TMG International and the cases developed by the parties, I have concluded that I must adhere to the conclusion which I reached in State Rail Authority (No 1), at pp287 to 288, that s49(4) of the Act does not require that the Coroner's report or the proceedings identify the offender, but that rather, that it is concerned with the appearance of the offence with which the defendant has been charged. I note that this was not a matter dealt with in Walco, but which arose for decision in both State Rail Authority (No 1) and again here. I have not been persuaded that I erred in the conclusions which I earlier reached and adhere to them.

23 Likewise, the question of whether s49(4) permits regard to be had to both the proceedings before the Coroner and the Coroner's report, given that the proceedings concluded in May 1997 and the report was not given until October 1997. In State Rail Authority (No 1), this issue was decided contrary to the construction here urged by the defendant. For the reasons given at p295 of that judgment, I take the view that a restriction of an appearance that an offence has been committed to the report of the proceedings, in circumstances such as these, does not reflect a correct approach to the proper construction of the section. Again, I have not been persuaded that I erred in the conclusions which I there reached.

24 I have also not been persuaded that the conclusion reached in State Rail Authority (No 2) at para [92] was wrong. I adhere to what I there said, for the reasons given: 'I take the view that the argument that the prosecutor could not rely upon all of the evidence before the Coroner, for the purpose of forming a view as to whether the prosecution was within time under s49(4), but only the evidence which was in admissible form, must be rejected.'

25 In State Rail Authority (No 1), I ordered that the prosecutor provide the defendants 'with particulars of any prosecution which will be pressed, identifying the part or parts of the Coroner's report or proceedings at the inquest or inquiry from which it appears that the offence charged has been committed.' (p295) As I noted earlier, it was unnecessary in this case to consider that issue, because the prosecutor had already provided that information to the defendant prior to the hearing of the motion. At the hearing the parties directed their submissions to whether or not, on the basis of the material relied upon by the prosecutor, it had been demonstrated that the prosecution had been brought within the time fixed by s49(4).

26 Even though both the decisions in State Rail Authority (No 1) and (No 2) were overturned on appeal, nothing in the decision in TMG International suggested that this approach was wrong, nor was there an issue between the parties as to the correctness of that approach. I propose therefore to adhere to it, in this case.

27 I turn then to the evidence. The prosecutor relied upon an affidavit of Ms Tankard, to which was annexed not only the particulars provided, but the material in the coronial proceedings referred to in the particulars, on which reliance was placed, at this point of the proceedings, to demonstrate the appearance of the offence required by s49(4). The prosecutor relied upon all of that material, but especially that referred to in the particulars. For reasons which I will outline, I am satisfied that it appears from that material that the offences with which defendant was charged, were committed. Whether or not the prosecutor will be able to establish, in due course, to the criminal standard, that the defendant committed those offences, is a different question, which does not arise for consideration at this point.

IRC 5427 of 1999 - prosecution under s16 of the Act - re 10 November

28 The offence with which the defendant was charged provided: On or about 10 November 1995 at Kogarah in the State of New South Wales, being an employer did fail contrary to Section 16(1) of the Occupational Health & Safety Act, 1983 to ensure that persons not in is(sic) employment were not exposed to risks to the health and safety arising from the conduct of its undertaking in that the Defendant failed to:

(i) cut and cap the gas supply line to Shop 7 Railway Parade, Kogarah outside an area where construction was designed to occur; (ii) make proper inquiry as to the scope and extent of the works; (iii) take adequate steps to establish the scope and extent of construction work; (iv) take such steps as were necessary to make available to persons engaged in the Kogarah Station Upgrading ("KSU") adequate information about: (a) location of the gas supply line which remained charged; (b) the risks associated with performing work adjacent to the charged gas line; (c) the type of work, if any, that might be carried out adjacent to the charged gas line without risk; (d) the type of work, if any, which could be performed adjacent to any charged gas supply line;

(v) take such steps as were necessary to identify the work to be performed at the KSU; (vi) take such steps as were necessary to identify the extent and boundaries of the work to be performed at the KSU; (vii) disconnect the gas supply line, in a position which was safe and without risks to health of persons on or around the KSU; (viii) remove a gas supply line which remained charged from the KSU; (ix) remove a gas supply line which remained charged from an area which would be subject to earthworks; (x) isolate the supply of gas which charged the line to the KSU. (xi) provide or maintain a system for the adequate protection, identification and warning of gas lines which remained charged on a construction site that were safe and without risks to health.

29 There was no doubt, from the material in the Coroner's report and the proceedings, that AGL was an employer and that its employees were working on 1 November, at the site identified. Nor was there any doubt, that there were persons not in AGL's employment also at that site.

30 The parties were at issue as to whether the Coronial material relied upon, made it appear that such other persons were exposed to risks to their health and safety, as the result of the matters identified.

31 I am satisfied that the material relied upon did provide a sufficient basis for the appearance of the offence charged, as required by s49(4) of the Act, to be established. The Coroner's report dealt with the circumstances in which the gas connected to the site was disconnected on 10 November, accepting the WorkCover Inspector's criticism of the procedures used as inadequate, noting an absence of maps showing the location of the pipes and concluding that 'it was not reasonable to allow pressurised gas pipes to remain in place while demolition work is carried out'.

32 The Coroner's report included a conclusion that "Under no circumstances should a live gas pipe be allowed to exist on the site of major industrial works such as was occurring in this case". The report described how an elbow joint in the gas line later failed, after the pipe was snagged by a worker on site operating an excavator, thus allowing gas to escape, so as eventually to lead to the explosions on 4 December.

33 The Coroner was asked, but declined to make particular recommendations directed to the defendant pursuant to s22A of the Coroner's Act 1980. He accepted that 'sufficient and proper enquiry should be made in any event by the AGL officer when attending to disconnect the gas at the request of the applicant', but nevertheless recommended that 'the AGL officer ought to record in greater detail the extent of his/her 'sufficient and proper enquiry'. One hopes this would include details of the proposed building works so as to enable him/her to make a more informed decision regarding the safety of terminating the service at any particular point.

34 The Coroner's recommendations included that 'AGL maintain an up to date detailed documentary/mapping system identifying the location of all gas service mains, supply control valves and 'shut off valves' and that these records be readily accessible to AGL team leaders.

35 Various material from statements and evidence given in the proceedings was also relied upon by the prosecutor. I do not propose to refer in extensive detail to the material, but note that it included the evidence given by the AGL employee, Mr Princi, who disconnected the pipe in question as to what he did, what discussions he had with the person who had requested the disconnection, Mr Bustamante, a foreman on site and what information he was provided with, and which he provided to Mr Bustamante, about the work performed.

36 I am satisfied from all of the material relied upon by the prosecutor, that it did make it appear that such other persons were exposed to risks to their health and safety, as a result of the matters dealt with in the charge.

IRC 5429 of 1999- prosecution under s15 of the Act - re 4 December

37 The offence with which the defendant was charged provided: On 4 December 1995 at Kogarah in the State of New South Wales, being an employer, did fail to ensure the health, safety and welfare at work of its employees and in particular, Charles Bigrigg, Liugino Galasso, Damian Paul Lindsay, Roy Alvero, Gary Charlewood, Les Emerson and Nuno de Sousa contrary to Section 15(1) of the Occupational Health & Safety Act, 1983 in that it failed to:

(i) maintain availability of sufficient information to enable persons to identify where the gas supply lines were situated in Kogarah CBD; (ii) provide and maintain adequate and up to date records of the location of: (a) gas supply lines; (b) main supply lines; (c) gas valves; (iii) provide or maintain a system for the efficient isolation of gas flows; (iv) install valves which when operated efficiently isolated gas flows.

38 Again, there was no doubt, from the material in the Coroner's report and the proceedings, that AGL was an employer and that its employees were working on 4 December, at the site identified.

39 The parties were at issue as to whether the Coronial material relied upon, made it appear that there was a failure to ensure the health and safety of the employees named, as the result of the matters identified.

40 In addition to the matters referred to above, in relation to the events of 11 November, the Coroner's report dealt with what occurred at this site on 4 December, which included an explosion at 2pm, which caused a number of persons to be injured and the deaths of two other people. A second explosion occurred at 3.30pm, injuring a number of firemen present by that time.

41 Amongst other things, the Coroner's report noted that evidence disclosed that the gas leak had been notified to AGL at 1.55pm and the AGL crew attended at 2.20pm, after the first explosion. AGL employees removed a section of pipe on site at about 2.30pm and further pipe at 4pm. The gas supply on site was not turned off until 4.10 pm, after the second explosion at 3.30pm.

42 The Coroner identified the source of fuel for both explosions as the failed elbow joint in the pipe and described two possible scenarios for the second explosion. The first involved gas continuing to leak from the pipe after the first explosion. The second involved a pool of gas accumulating before the first explosion, but being isolated and unignited at the time of the first explosion. The Coroner was unable to identify which scenario was most preferable.

43 The Coroner found that the time taken for the gas to be shut off 'was a matter of concern, noting that during a delay of over two hours, a second explosion occurred.' He found that the problem was exacerbated by the lack of proper up to date plans of the position of shut off valves; the absence of the AGL team leader on a rostered day off, making his local knowledge of the area and the location of the valves unavailable. He noted the delay in locating what were thought to be four relevant gas pipes and the delay occasioned by the lack of appropriate plans and two unsuccessful attempts to locate the gas line by digging holes in the roadway. The Coroner noted that even after the line was located and shut off, gas was found still to be flowing into a nearby shop at 7:30pm and gangers had to be recalled to shut off a further valve.

44 The Coroner recommended that procedures which provided up to date plans of shut-valves and pies be maintained 'with ongoing rigour'. The Coroner also commended two AGL employees who had acted with courage and commitment.

45 The Coroner found that two persons died as the result of complications of burns sustained on 4 December when gas exploded as the result of a gas pipe being damaged when excavation work was carried out on site.

46 Various material from statements and evidence given in the proceedings, was also relied upon by the prosecutor. I do not propose to refer in detail to the material, but note that it included the evidence given by the AGL employees, who on 4 December responded to the call for assistance with the gas leak and those who attended the site and described what was done on site to locate the valves and pipes in question and the difficulties they encountered.

47 I am satisfied from all of the material relied upon by the prosecutor, that it did make it appear that such other persons were exposed to risks to their health and safety in the manner charged.

IRC 5430 of 1999- prosecution under s16 of the Act - re 4 December

48 The offence with which the defendant was charged provided: On 4 December 1995 at Kogarah in the State of New South Wales, being an employer, did fail contrary to Section 16(1) of the Occupational Health & Safety Act, 1983 to ensure persons not in its employment were not exposed to risk to the health and safety arising from the conduct of its undertaking in that the Defendant failed to:

(i) maintain availability of sufficient information to enable persons to identify where the gas supply lines were situated in Kogarah CBD; (ii) provide or maintain adequate and up to date records of the location of: (a) gas supply lines; (b) main supply lines; (c) gas valves; (iii) provide or maintain a system for the efficient isolation of gas flows; (iv) install valves which when operated efficiently isolated gas flows.

49 There was no doubt, from the material relied upon in the Coroner's report and the proceedings, that AGL was an employer and that its employees were working on 4 December, at the site identified. Nor was there any doubt, that there were persons not in AGL's employment also at that site that day.

50 The parties were at issue as to whether the Coronial material relied upon, made it appear that such other persons were exposed to risks to their health and safety, as the result of the matters identified.

51 For similar reasons to those explained in relation to the s15 offence alleged that day, I am satisfied that the material relied upon, made it appear that the offence charged had been committed.

52 I finally add, that even were the proper construction of s49(4) to require that the material relied upon must make it appear that it was the defendant who had committed the offence charged, in addition to the appearance that the offence itself had been committed, in my view the material relied upon in these cases properly allowed that conclusion to be drawn.

53 For all of these reasons, I order that the defendant's motion be dismissed. I reserve on the question of costs, which the parties did not address. ------------------------

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