WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Edmond Hubert Kuipers and Civil Services Pty Ltd

Industrial Relations Commission (NSW)|2003-04-30|Before: Schmidt J, Philippides J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Kenneth George Martin) v Edmond Hubert Kuipers and Civil Services Pty Ltd [2004] NSWIRComm 393 PROSECUTOR: WorkCover Authority of New South Wales

Civil Services Pty Ltd (IRC 6518 of 2003) FILE NUMBER: 6517, 6518, 6519 of 2003 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecutions under sections 8(2), 9 and 26 - Occupational Health and Safety Act 2000 - non-employee fatally injured - construction of carport/shed at personal defendant's residence - no prima facie case submission - interpretation of "self-employed person" - no evidence personal defendant working as an employee or self-employed person - no evidence risk arose at corporte defendant's place of work or from its undertaking - defendants have no case to answer - no prima facie case submission upheld - charges dismissed Evidence Act 1995 LEGISLATION CITED : Interpretation Act 1987 Occupational Health and Safety Act 2000 Canberra Stereo Public Radio Inc v Australian Broadcasting Tribunal and Anor (1984) 6 FCR 456 Director of Public Prosecutions Reference No 1 of 1988 (1989) 40 ACrimR 461 May v O'Sullivan (1955) 92 CLR 654 Morais v The Minister for Immigration, Local Government and Ethnnic Affairs (1995) 54 FCR 498 CASES CITED : Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297 O'Sullivan v Crown in Right of NSW (Department of Education and Training) (2003) 125 IR 361 Re Riverton Sheep Dip [1943] SASR 343 Syndicate Club Pty Ltd v Queensland (unreported, Supreme Court of Queensland, Philippides J, 30 April 2003) Trzesinski v Daire (1986) 21 ACrimR 247 WorkCover Authority of New South Wales v Police Service of New South Wales (No 2) (2001) 104 IR 268 HEARING DATES: 11/29/2004; 11/30/2004; 12/01/2004 DATE OF JUDGMENT: 12/16/2004

PROSECUTOR: Ms L McManus of counsel

LEGAL REPRESENTATIVES: DEFENDANTS: Ms M Bateman of counsel

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 16 December 2004

Matter No IRC 6517 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KENNETH GEORGE MARTIN) v EDMOND HUBERT KUIPERS Prosecution under s26(1) of the Occupational Health and Safety Act 2000

Matter No IRC 6518 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KENNETH GEORGE MARTIN) v CIVIL SERVICES PTY LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 6519 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KENNETH GEORGE MARTIN) v EDMOND HUBERT KUIPERS Prosecution under s9 of the Occupational Health and Safety Act 2000 JUDGMENT

1 The defendants were charged with three offences under the Occupational Health and Safety Act 2000, arising out of risks to safety which resulted in Gordon Joseph McMullen suffering fatal injuries in November 2001. This occurred while Mr McMullen was present at the home of the defendant Edmond Hubert Kuipers, when a frame for a timber shed and carport was being erected. Mr Kuipers was employed by Civil Services Pty Ltd, of which he was the sole director.

2 In opening, it was explained for the prosecutor that the charge brought under s9 of the Act against Mr Kuipers was the primary charge and the charges brought under ss 8(2) and 26 were pressed in the alternative.

3 The s9 charge alleged: That Edmond Hubert Kuipers, on 15 November 2001 failed to ensure that persons not in the defendant's employment, and in particular, Gordon Joseph McMullen were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, the defendant's place of work.

The s8(2) charge alleged: That Civil Services Pty Ltd (ACN: 055 827 686), the defendant, being an employer, on 15 November 2001, failed to ensure that persons not in its employment, and in particular, Gordon Joseph McMullen were not exposed to risks to their health or safety arising from the conduct of its undertaking, and its place of work.

The s26 charge alleged: That Edmond Hubert Kuipers, on 15 November 2001, being a director of Civil Services Pty Ltd, a corporation which contravened section 8(2) of the Occupational Health and Safety Act 2000 at that place and date in that, being an employer, it failed to ensure that persons not in its employment, and in particular Gordon Joseph McMullen were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work, is deemed to have contravened the same section pursuant to section 26(1) of the said Act.

4 Upon the prosecution closing its case, the defendant submitted that no prima facie case had been made out in respect of any of the charges. The prosecution's case was that there was evidence at a prima facie level to support both the s8 and s9 charges, although the evidence supporting the s9 charge was stronger. The s26 charge depended upon the s8 charge being made out.

5 The test is that discussed by the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658-9 (See also WorkCover (NSW) v Police Service of New South Wales (No 2) (2001) 104 IR 268 and O'Sullivan v Crown in Right of NSW (Department of Education and Training) (2003) 125 IR 361). What must appear from the evidence is that the defendant could be convicted on the evidence, as it stands. Proof beyond reasonable doubt is not, at this point, required. What must be shown is that the defendant has a case to answer.

6 Evidence was given by the prosecuting inspector, Mr Martin, Ms Deborah Burton and Mr Adrian John Glenane. It showed that the accident had occurred at the property jointly owned by Mr Kuipers and Ms Burton, where they lived with their family. Mr Kuipers was a concreter. He and Ms Burton were employed by the corporate defendant Civil Services.

7 Mr Kuipers had engaged Mr Christian MacDonald to erect a large farm shed/carport of some 96 square metres on the property on a 'do and charge' basis. Mr Kuipers had not himself done such work in the past, but the design of the shed was determined by he and Mr MacDonald in consultation. Mr Kuipers had also engaged a bobcat and operator, Mr Glenane, to perform work on the property, preparing the levels for the floor of the structure and other work, such as levelling out gravel. Mr Glenane had in the past performed bobcat work for Civil Services.

8 On the day of the accident, Mr MacDonald was working on the site, erecting timber posts and poles, with the assistance of Mr William Marshall, who had been engaged and was to be paid by Mr MacDonald. The work involved the use of Mr Marshall's crane to lift posts and poles into position. Some of the poles were already at the property belonging to Mr Kuipers and Ms Burton. Others were obtained by Mr MacDonald.

9 Mr Kuipers and Mr Glenane were also present, as was Ms Burton. Mr Glenane was operating the bobcat and Mr Kuipers was directing what the bobcat needed to do and assisting with a shovel, in places where the bobcat could not reach. Ms Burton was not involved in any work connected with the construction of the shed, or what Mr Kuipers and Mr Glenane were doing. Mr Kuipers also assisted Mr MacDonald at one point, by hanging on to the tail rope attached to a post. The holes into which the poles were placed had earlier been made by bobcat. Mr Kuipers had not operated the bobcat. When the holes were prepared was not entirely clear.

10 Mr McMullen, a friend of Mr MacDonald, came to the site in the afternoon and was struck by a heavy horizontal pole which fell from the frame of the shed being erected, where it rested on some vertical posts. The pole had been struck by Mr Marshall's crane. Ms Burton, who was outside the house talking to a neighbour, saw the pole fall and strike Mr McMullen. He later died of his injuries. Neither Mr Kuipers nor Mr Glenane saw the pole fall.

11 Section 9 of the Act concerns the duties of self-employed persons and provides:

A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work.

12 At the close of the prosecution case, it was the defendants' submission that it had not been established, to a prima facie level, that work was being undertaken at Mr Kuipers' place of work; that he was a self-employed person; or that the risks in question arose from the conduct of his undertaking.

13 There was no doubt, on the evidence, that work was being performed at the time in question, by all those present, apart from Mr McMullen and Ms Burton. Given the definitions of 'work', 'employee' and 'self-employed person' in s 4 of the Act, it is apparent that not all forms of work are caught by the provisions of the Act. Those definitions provide: "work" means work as an employee or as a self-employed person. "employee" means an individual who works under a contract of employment or apprenticeship. "self-employed person" means a person who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others.

14 Relevantly, in the case of s9, it must be established that:

non employees were exposed to risk. (This was not ultimately here in contention.)

The exposure to risk occurred at the self-employed person's place of work.

The defendant was a self-employed person - that is, working for gain or reward, otherwise than under a contract of employment

The risk arose from the conduct of the self-employed person's undertaking.

15 The definition of 'place of work' is cast in wide terms, in my view wide enough to include someone's home, if work be performed there. The defendant here accepted that the home of Mr Kuipers and Ms Burton, was the place of work of Mr MacDonald, Mr Marshall and Mr Glenane on the day in question. It was argued not to be Mr Kuipers' place of work, however, because he was not there himself performing work as an employee or self-employed person.

16 Given the evidence of Mr Kuipers' activities at his home that day, it cannot be doubted that he, too, was there performing work. Not all work, however, falls within the statutory definition, because work is not always performed by an employee or by a self-employed person. Others can and do perform work - homeowners (or lessees in the case of leased premises), family members and volunteers, are but some examples. It is only if the work was being done by Mr Kuipers as an employee or self-employed person, that the definition of 'work' could be satisfied.

17 On the evidence, there were at least three possible ways in which Mr Kuipers could have been performing the work he undertook. As a homeowner, as an employee of Civil, or as a self-employed person.

18 I am satisfied that the evidence could not establish that Mr Kuipers was performing the work which he undertook, under his contract of employment with Civil. There was but little direct evidence going to this possibility, but what there was, including Mr Kuipers' own statements to the Inspector, at an interview conducted in accordance with the provisions of the Act, could not establish that Civil was involved in the work being performed that day. In that statement, Mr Kuipers, who has not given evidence in the proceedings, himself described his position as a self-employed concreter. Such a statement could not, of itself, be conclusive of whether or not he was a self-employed person as defined. There was, however, no evidence connecting Civil to the work being performed at the home of Mr Kuipers and Ms Burton, other than that of Mr Glenane.

19 Mr Glenane's evidence was that Mr Kuipers had contacted the agency which he used, to order a bobcat. Mr Glenane got the job from the agency. On past occasions he had been engaged in this way by Civil, to perform bobcat work in its business. After the accident, Mr Glenane made a statement to the Inspector, that he understood that he had been engaged by Civil to perform the work he undertook at Mr Kuipers' home. His evidence in these proceedings was to different effect. He said that he understood that he had been engaged by Mr Kuipers personally, not by Civil, because the job was for Mr Kuipers at his home, not for Civil's business.

20 There was no evidence as to any conversations between Mr Kuipers and Mr Glenane, or anyone else, upon which either understanding might have rested. There was no documentary evidence about the terms of the engagement. Nor was there direct evidence as to who, in fact, was invoiced or paid for the work. What evidence there was, pointed to the work being invoiced to Mr Kuipers. By whom was unclear.

21 Mr Kuipers' statement to the WorkCover Inspector was that he had engaged Mr Glenane. He was an employee and sole director of Civil and the evidence was that it was he who had in the past engaged Mr Glenane for Civil. Whether Mr Kuipers meant that he had engaged Mr Glenane personally, as the statement suggests on its face, or for Civil, was not explored with him at the interview. There was, however, no evidence to suggest that Civil paid for the work, rather than Mr Kuipers, or that it sought to recoup the cost from Mr Kuipers and Ms Burton, who owned the property. Nor did the evidence show that the work was paid for by Mr Kuipers and recouped from Civil.

22 To the contrary, there was in evidence a notice issued under s 62(1) of the Act to 'Mr Edmond Kuipers of Civil Services Pty Ltd', which required the production of invoices, contracts or other documents, receipts, cheque books, butts, bank statements relating to the hiring of Mr Lenane, and the work carried out by Mr Marshall and Mr MacDonald. (It was common ground that the reference to "Mr Lenane" was in error, it was Mr Glenane to whom reference was being made.) Mr Kuipers responded on Civil Services' letterhead and supplied: An invoice relating to the hiring and payment of Mr Lenane for work carried out at 276 Nolans Road, Stokers Siding on and about 15 November, 2001. (Please note the invoice is directed to myself personally as the work was engaged as such).

23 That document was not tendered. Nevertheless, this evidence, such as it was, did not point to the work being undertaken by Civil. Nor was there evidence which suggested that Mr Marshall or Mr MacDonald had been engaged or paid by Civil, rather than by Mr Kuipers himself. Ms Burton gave no evidence about these matters. Her evidence was that she and Mr Kuipers had decided to build the shed/carport at their home, where apart from vehicles, they stored various material, such as saddles and bridles, gardening equipment, paint and other household materials. She gave no evidence as to the conversations which led to this decision.

24 It follows that the evidence could not show that Civil was involved in the undertakings being pursued at Mr Kuipers' and Ms Burton's home on the day in question, or that Mr Kuipers was performing the work on which he was there engaged, as an employee of Civil.

25 What must next be considered was whether the evidence could establish that Mr Kuipers was performing work 'for gain or reward' at his home. Mr Kuipers was not asked about this by the Inspector. Ms Burton gave no evidence about this issue.

26 There has been no consideration by the Court of the meaning of this phrase in the definition of 'self-employed person' in s 4, or its predecessor, although the parties referred to consideration given by other Courts to the phrase, as used in other legislation.

27 It was the prosecutor's submission that Mr Kuipers, who told the Inspector that the undertaking at his home was a private one and that he was self-employed, was therefore in the same position as any other principal contractor, working at a particular site. He took an active role in the organisation of the construction of the shed and determined the design. He engaged those who did the work. It was, as a result, his place of work, as well as that of those he engaged. The benefit he gained from his work was the construction of the shed and that he did not need to employ someone else to perform the work which he undertook himself.

28 The words "gain" and "reward" are defined in the Macquarie Dictionary 2nd Edition as:

"gain": 1. to obtain; secure (something desired); acquire: gain time . 2. to win; get in competition: gain the prize . 3. to acquire as an increase or addition: to gain weight, speed, etc. 4. to obtain as a profit: he gained ten dollars by that transaction. 5. to reach by effort; get to; arrive at: to gain a good harbour. "reward": 1. something given or received in return or recompense for service, merit, hardship, etc. 2. a sum of money offered for the detection or capture of a criminal, the recovery of lost or stolen property, etc. 3. to recompense or requite (a person, etc.) for service, merit, achievement, etc. 4. to make return for or requite (service, merit, etc.); recompense

29 In the Australian Concise Oxford Dictionary 2nd Edition, they are defined as:

"gain": 1. obtain or secure (something desired or favourable) ( gain an advantage; gain recognition ). 2. acquire (a sum) as profits or as a result of changed conditions; earn. 2. obtain as an increment or addition ( gain momentum; gain weight ). 4.a. win (a victory). b. reclaim (land from the sea). 5. (foll. by in ) make a specific advance or improvement ( gained in stature ). 6. (of a clock etc.) become fast, or be fast by (a specified amount of time). 7. (often foll. by. by on, upon ) come closer to a person or thing pursued. 8.a. bring over to one's interest or views. b.(foll. by over ) win by persuasion etc. 9. reach or arrive at (a desired place). - n. 1 something gained, achieved, etc. 2 an increase of possessions etc.; a profit, advance, or improvement. 3. the acquisition of wealth. 4. sums of money acquired by trade etc., emoluments, winnings. 5. an increase in amount. "reward": 1.a. a return or recompense for service or merit. b. requital for good or evil; retribution. 2. a sum offered for the detection of a criminal, the restoration of lost property, etc. -v.tr. give a reward to (a person) or for (a service etc.).

30 The parties referred to a number of authorities where the words have been considered, although they were submitted not to be of direct assistance, because the definition had to be considered in context. In Morais v The Minister for Immigration, Local Government and Ethnic Affairs (1995) 54 FCR 498, Kiefel J considered the meaning of the phrase when used in the definition of 'usual occupation' in Regulation 146 of the Migration Act 1958. The term is defined as 'an occupation that the applicant has engaged in for gain or reward...' Kiefel J concluded at [12] - [13]: As I have said the words "reward" and "for", in the context of the regulation have in common the notion of a return or exchange for the occupation undertaken and, consistently, "gain" ought be viewed in the same way although it may extend beyond the more usual case of the payment of money for services to circumstances where the skills or services are provided but in exchange for something other than money or money's worth and perhaps extending to some indirect advantage such as to a business conducted by the person but where it can be seen that something is given for the skills or services provided by the "occupation". In the context of regulation 146 I consider the words "occupation... engaged in ... for gain or reward ..." convey something undertaken, some skill or service provided in consideration of or in exchange for some recompense, something of value given or paid. It does not extend to the acquisition by the person of work-related experience only, preparatory to employment and the provision of which may be seen as itself the gain or reward.

31 In Canberra Stereo Public Radio Inc v Australian Broadcasting Tribunal and Anor (1984) 6 FCR 456, Sheppard J considered the meaning of the phrase 'profit or gain' in s81(4) of the Broadcasting and Television Act 1942 (Cth), where reference is made to the objects of a corporation including 'the acquisition of profit or gain for the benefit of its individual members'. In dealing with the meaning of the word 'gain', his Honour referred at p470-1 to Re Riverton Sheep Dip [1943] SASR 343, where Mayo J said at 347: 'Gain' was said by Simonds J. to be a word that was "not susceptible of precise or scientific definition". He thought the test, for such a purpose as the present, was 'whether that which is being done is what ordinary persons would describe as the carrying on a business for gain' ( Armour v. Liverpool Corporation [1939] Ch 422 at 437). The most appropriate definition to be found in a dictionary may be 'increase in resources or business advantages resulting from business transactions or dealings'. In s.9(2) the word is not limited to pecuniary gain, or confined to commercial profits. It means something obtained, the acquisition of something not before available ( Ian Waing v. Bo Hein (1932) ILR 10 Man 490).

32 In Director of Public Prosecutions Reference No 1 of 1988 (1989) 40 ACrimR 461, the Victorian Court of Criminal Appeal considered the meaning of the word 'gain' in s 197(3) Crimes Act 1958 (Vic), where an offence is created in respect of persons who dishonestly destroy or damage property 'with a view to gain for himself or another'. At 466 it was observed that:

A certain ambiguity undoubtedly attaches to the meaning of the word "gain". In Armour v Liverpool Corporation [1939] Ch 422 at 437, Simonds J observed that the word was "not susceptible of precise or scientific definition". The Oxford English Dictionary meaning is of considerable width: "Increase of possessions, resources or advantages of any kind consequent on some action or change of conditions. The word's meaning will alter according to the context in which it appears. Certainly its meaning can extend beyond "profit".

33 In Syndicate Club Pty Ltd v Queensland (unreported, Supreme Court of Queensland, 30 April 2003), Philippides J considered the phrase 'gain or reward' as used in s 151(1)(a)(ii) of the Lotteries Act 1997 (Qld). His Honour concluded at [63]: Furthermore, that inducement or offer of an opportunity can be said to be for the applicant's "gain or reward". The concept of "gain" includes an "increase in resources or business advantage resulting from business transactions or dealings". The concept of "gain" is not restricted to pecuniary or commercial profits; it includes other considerations of value obtained. In the present case the applicant makes a profit from the Bonus Plan, which is funded through the payments made by members using the applicant's OzPower System.

34 The Interpretation Act 1987 (NSW) requires in s 33 that regard be had to the purpose or object of an Act, when its provisions are being interpreted. The meaning of the phrase here arises for determination in a statute which establishes a detailed system, whereby the safety of those engaged in work of various kinds, is required to be assured. In the case of s 9, what must be shown is that work is being undertaken for gain or reward, in the case of a self-employed person.

35 In one sense, of course, all work results in gain or reward, because work produces a result, absent if the work is not undertaken. It may give rise to feelings, such as pleasure or satisfaction, gained from the actual performance of the work. It may also have physical benefits for the person undertaking it. I am satisfied, however, that it cannot properly be concluded that the words 'gain or reward' have so wide a meaning, in this statutory context.

36 This follows because the phrase is used in the definition of 'self-employed person' as one of limitation of the word 'work', itself defined as the work of an employee or self-employed person. If it were not so understood, the phrase would be otiose - all work of any kind would be encompassed in the definition. It is a tenet of statutory construction that words of limitation must be given effect, consistently, of course, with the purpose or objects of the Act.

37 The phrase is not defined and the words must, therefore, be given their plain and ordinary meaning, although as I have noted, account must be taken of the statutory context in which they appear, as well as the consequences of any interpretation adopted. So approached, what limitation results from the use of the phrase 'for gain or reward' in the definition?

38 It must, in my view, connote two things. Firstly, that something of tangible value flows to the person performing the work, other than the actual result which the work itself has produced, or the emotions which the performance of the work has generated. Secondly, that this result is the purpose for which the work was performed.

39 The parties agreed that the word 'reward' was to be understood as connoting remuneration, or something akin to cash payment, or its equivalent. They disagreed as to the construction of the wider word 'gain', but accepted that it meant something other than what 'reward' connoted. For the prosecution, it was argued that in this case, Mr Kuipers' work led to the construction of a shed, a new asset, which was itself of tangible value and which also increased the value of the land. The defendant submitted that there was no such evidence. What the evidence showed was that Civil was running a business elsewhere, in which Mr Kuipers was employed. He received nothing for the work which he performed privately at his home. To satisfy the definition, that work had to be business related, generating by way of gain or reward, cash or something cash like, resulting increased resources or business advantage. A mere private transaction could not fall within the definition.

40 I do not accept the defendants' submission that the work must be performed in the course of a business, although obviously if it is, the conclusion that it is undertaken for gain or reward would seem to be readily available, if the relevant evidence were led. The definition does not incorporate the concept of pursuit of a business, although it easily could have. I am satisfied that such a limitation may not be read into the definition.

41 What the evidence revealed was that Mr Kuipers was engaged in the work he undertook, in order that a shed would be constructed at his home, which he owned and shared with Ms Burton, as they had decided together. The shed was to house vehicles, household and gardening and other materials, such as saddles and bridles. There was no evidence of any other purpose, or that Mr Kuipers was paid for his work, or that he received any benefit or recompense for his work from anyone. True it was that he did not have to pay someone else to perform the work which he undertook himself. Nevertheless, it is difficult to see that this could amount to either a 'gain' or 'reward', as the definition contemplates. To so conclude would be to ignore the very fact that Mr Kuipers himself had to perform the work - at a personal cost, namely that of his time and effort. Other costs were incurred in having the shed erected by Mr Marshall and Mr MacDonald and in the work performed by Mr Glenane.

42 Nor was there evidence that the value of the land owned by Mr Kuipers and Ms Burton was increased as a result of the work performed by Mr Kuipers. There was simply no evidence which could show that his work resulted in any gain.

43 As to the purpose for which the work was undertaken, it seems to me that this element is an important one in the definition, given that the work of a self-employed person must be undertaken for gain or reward. That word too must be given effect. This construction flows naturally from the ordinary meaning of the word. It is a word of wide definition. Pertinently in this context, the Macquarie Dictionary 2nd Edition defines the word as: 1. with the object or purpose of: to go for a walk ...

The Australian Concise Oxford Dictionary 2nd Edition defines the word as: ... 10. as a reward for ( here's $5 for your trouble ); 11a. with a view to; in the hope or quest of; in order to get ( go for a walk; run for a doctor; did it for the money ) b. on account of ( could not speak for laughing );...14. conducive or conducively to; in order to achieve ( take the pills for sound night's sleep)...18. because of; on account of ( could not see for tears ).

44 Undoubtedly, work undertaken by a person, the creation and maintenance of a garden for example, might not only result in the product of the work, a garden, but a resulting increase in the capital value of the property where the garden is planted, or a crop which may be sold. If established on the evidence, this would undoubtedly amount to a 'gain'. Unless the evidence also demonstrated, however, that such a gain was the purpose for which the work was undertaken by the person performing the work, in my view that part of the definition of 'self-employed person', that the work be undertaken 'for gain or reward', could not be satisfied. Gardening work undertaken simply for pleasure, or exercise for example, could not fall within the definition.

45 In any event, in this case, as I have noted, there was no evidence that any gain or reward resulted from Mr Kuipers' work. Nor was there evidence which could show that the gain which the prosecution asserted had resulted from the work, was the purpose for which Mr Kuipers had undertaken the work.

46 It follows that it cannot be concluded that the evidence, as it stands, could show that Mr Kuipers' work was being undertaken as a self-employed person, at his place of work.

47 This conclusion appears also, I observe, consistent with the scheme established by the Act. Mr Kuipers owned the property with Ms Burton. It was their home. Homeowners frequently undertake work at their homes for many reasons, including for instance, to attend to their obligations as parents or pet owners; to clothe and feed themselves; to maintain their homes or gardens; and to see to the daily needs of life, including cleaning their homes, clothes and vehicles. They may also have others, including employees, subcontractors, family members and friends, perform such work at their homes.

48 Section 10 of the Act imposes certain obligations upon those who control premises, used as a place of work - as defined - that undertaken by employees or subcontractors. It follows that no obligation arises if work is performed by a homeowner other than as an employer or self-employed person. Further, s10(3)(b) creates an exception, in the case of premises occupied only as a private dwelling and to plant and substances used at such premises, even if the premises be used as a place of work.

49 Section 9 also imposes an obligation upon a homeowner, him or herself performing work at home, if the work is being performed for reward or gain in an undertaking, as a self-employed person. If the homeowner is performing work at home for an employer, the employer has obligations under s8. If the homeowner, him or herself employs someone else to perform work at the home, then too, the homeowner has obligations under s8 as an employer, so long as the homeowner is there conducting an undertaking.

50 In these proceedings, the question of the use to which the premises were being put, did not arise directly in the prosecution case, given that there were no charges laid against Civil, Mr Kuipers or Ms Burton under s10. Nevertheless, the evidence did not suggest that the premises were being used in connection with the business of Civil. That matter was not one raised at all in the evidence of Ms Burton, or in the interview conducted with Mr Kuipers. Nor could the evidence show that the work undertaken by Mr Kuipers was undertaken for Civil Services, or otherwise for gain or reward, as I have earlier outlined.

51 While it was submitted for the prosecution that a conclusion that Mr Kuipers was not a self-employed person while working at his home as he did, would reveal a gap in the legislation, it seems to me that, to the contrary, it is a result consistent with the scheme established by the Act, in the case of homeowners and the private dwellings where they live.

52 Work performed at premises occupied only as a private dwelling does not appear to give rise to obligations under the Act, if the work be performed by the homeowner, otherwise than as an employee or a self-employed person.

53 Finally, I have also concluded that the evidence could not show that the risk in question materialised from the course of the conduct of Mr Kuipers' 'undertaking', the final aspect of the definition of self-employed person.

54 The evidence was that Mr MacDonald had been engaged by Mr Kuipers to construct the shed/carport. Mr Kuipers had not himself built a shed before, but he organised what was necessary to be done, in order that this be achieved. The design was settled between Mr Kuipers and Mr MacDonald, Mr Kuipers wished to have the shed constructed with poles and a tin roof. Mr Glenane was engaged to perform the necessary bobcat work. Mr MacDonald engaged Mr Marshall to assist with the work and together they worked on erecting the poles, with the use of Mr Marshall's crane. It was while they were undertaking the work of building the shed that the pole which struck Mr McMullen fell. Mr Kuipers was nearby directing the work Mr Glenane was engaged to do with the bobcat, when the accident occurred. During the course of the day Mr Kuipers had been present while Mr MacDonald and Mr Marshall were working, directing that bobcat work. From time to time he had also given a hand to Mr Glenane and Mr MacDonald, with the work on which they were each engaged.

55 The word 'undertaking' is not defined in the Act. The authorities which have considered the expression have taken the view, with which I concur, that the expression is a broad one and that a single place of work may involve the undertaking of more than one employer, and I add, that of a self-employed person. I also accept that a homeowner might engage in the pursuit of an undertaking at home, either his or her own, or that of an employer.

56 Nevertheless, the evidence must show, in the words of s9, that the exposure to risk arose from the conduct of an undertaking of a self-employed person. In this case, the evidence could not establish that the risk in question arose from any undertaking being conducted by Mr Kuipers as a self-employed person, for reasons which I have given. Rather, the evidence pointed to the risk arising from the undertaking being pursued by those engaged for reward to construct the shed.

57 Section 8(2) concerns the duties of employers and provides: Others at workplace: An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

58 The defendant also pressed a no case submission in relation to this charge.

59 As I have already noted, I am satisfied that the evidence could not establish that any work was being performed for Civil at Mr Kuipers' and Ms Burton's home on the day in question, by Mr Kuipers or by anyone else. The evidence could not show that their home was Civil's place of work, or that Civil was there conducting an undertaking.

60 It follows that it is unnecessary to further consider the offence charged under s 26, dependent as it is upon the establishment of an offence under s 8. Nevertheless, it is pertinent to observe that there was some difficulty in such an 'offence' being established. In Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297, the Full Court observed at [163] as to the predecessor to s 26: We are not persuaded the defences under s 53 are available to the personal respondent in addition to those defences under s 50(1)(b) or (c). Section 53 provides a defence to any proceedings against a person for an offence against the Act. However, a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act: under s 50, if a corporation has committed an offence against the Act, such a person shall be deemed to have contravened the same provision (subject to the particular requirements of s 50). The very fact of deeming the contravention assumes that the person has not, in his or her own right, actually committed an offence.

61 The orders made at [179] in that case, against the personal defendant were: 5 Peter Lamont Foster, Mine Manager, is deemed to have contravened s 15 of the Occupational Health and Safety Act 1983 pursuant to s 50(1) of that Act.

62 Section 106 only authorises an Inspector to commence proceedings for an offence against the Act. The Inspector does not appear to have power to commence other proceedings under the Act. It seems to follow that the Inspector had no standing to commence the proceedings brought against Mr Kuipers under s26. It is, however, unnecessary to come to any concluded views about this issue. It was not one finally addressed by the parties, given the no case submission advanced and thus does not require consideration, given the views which I have otherwise reached. S18 of the Evidence Act - compellability of a spouse in criminal proceedings

63 Section 18 concerns the compellability of spouses and others in criminal proceedings generally and provides:

(1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto spouse, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on: (a) the objection, or (b) the decision of the court in relation to the objection, or (c) the failure of the person to give evidence.

64 It is convenient that I also outline my reasons for requiring Ms Burton, Mr Kuipers' de facto spouse, to give evidence in the proceedings, in accordance with the provisions of s 18 of the Evidence Act. Ms Burton objected to giving evidence in the proceedings, explaining her concern that to do so might harm their relationship. She felt awkward about having to give evidence and further explained that she felt that to do so, might give rise to stress on their relationship. She was unable to further explain the nature of that stress, or why or how it might arise.

65 Having considered the evidence and accepting that there was a likelihood that harm might be caused to Ms Burton or to her relationship with Mr Kuipers if she did so, I nevertheless concluded that the desirability of having the evidence given, outweighed the nature and extent of that harm.

66 The offences with which the defendants had been charged were undoubtedly serious, they concerning events which had occurred at the property owned by Mr Kuipers and Ms Burton and which had led to the death of Mr McMullen. Ms Burton had been present on the property when the relevant events occurred and had been an eye witness to the accident, which had resulted in the death. Given the other evidence available to be called and the nature of the issues indicated by the defence would arise in the proceedings, in the absence of Ms Burton's evidence, particularly whether the prosecution could establish that the injuries which had resulted in the death had in fact been sustained at the time and place alleged, the substance and weight of the evidence which Ms Burton could give were substantial.

67 I was satisfied that justice could not, in the circumstances, permit Ms Burton not being required to give evidence in the proceedings.

68 I note that a submission was made for the defendants that while Ms Burton's evidence had established that harm would arise if she gave evidence, there had been no evidence as to the nature and extent of the harm. It followed that the weighing of the considerations prescribed in s18(6) could not be properly undertaken by the Court. This submission followed the process adopted, when Ms Burton made her objection to giving evidence.

69 This involved the requirements of the section being drawn to her attention by the Court and she being invited to explain her concerns, that she might suffer the harm outlined in s 18(6), if she gave evidence in the proceedings. Neither the prosecution nor the defendant were given an opportunity to themselves examine Ms Burton about her concerns, the views expressed by Prior J in Trzesinski v Daire (1986) 21 A Crim R 247 as to these aspects of the process required by s 18 being accepted both by the parties and myself, with one exception.

70 Ms Burton raised her concerns, in the form of sworn evidence, having been called by the prosecution, which had been put on notice of her objection to giving evidence. For myself, I was satisfied that this was an appropriate way for her concerns to be put before the Court. The parties each made submissions as to the matters explained to Ms Burton and the questions put to her by the Court, after she had confirmed her objection to giving evidence. Account was taken of these submissions in the questions pursued with Ms Burton.

71 The conclusion which I reached was that Ms Burton was undoubtedly unhappy to have been summoned to give evidence and unwilling to do so, given her concerns. Nevertheless, she was quite composed in the witness box; was considered in the explanation which she gave; was given an opportunity to seek legal advice, which she declined; was given time during an adjournment to consider what she wished to draw to the Court's attention, in relation to any likely harm which she believed might result from her evidence being given and upon a further request made for the defendant, was again invited to explain her concerns and their basis in more detail. She responded to that invitation, albeit briefly.

72 I was well satisfied that Ms Burton understood what was being put to her and had an adequate opportunity to raise her concerns and further, to explain their nature to the Court. I was also satisfied that her concerns were legitimate and indeed held. Nevertheless, given her explanation, I was also satisfied that her concerns were of a relatively limited compass, insufficient to properly lead to the conclusion that the likely harm which might result from the evidence being given, could outweigh the desirability of the evidence being available in these proceedings.

73 For the reasons given, I find that the defendants have no case to answer in respect of any of the charges. I order that each charge be dismissed and that the prosecutor pay the defendants' costs, as agreed or assessed in accordance with the Court's Rules.

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