WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors. - [2003] NSWIRComm 452 - NSWIRComm 1986 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors.

[2003] NSWIRComm 452

Industrial Relations Commission (NSW)|1986-08-01|Before: Haylen J, Court Cripps J, Ltd Staunton J, Kavanagh J, Dixon CJ

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1986-08-01

Before

Haylen J, Court Cripps J, Ltd Staunton J, Kavanagh J, Dixon CJ

Catchwords

06/17/2003
06/18/2003
09/18/2003 DATE OF JUDGMENT: 12/12/2003

Source

Original judgment source is linked above.

Catchwords

06/17/200306/18/200309/18/2003 DATE OF JUDGMENT: 12/12/2003

Judgment (114 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors. [2003] NSWIRComm 452 PARTIES : WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult and ors. FILE NUMBER: IRC 5451, 5452, 5453, 5466, 5467, 5470, 5473, 5475, 5477, 5480, 5482, 5483 of 1999 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 49(4) - prosecutions under s 17(1) of Act commenced after Coroner's Inquest and Report - whether it appeared from Coroner's proceedings and Report that an offence under the Act committed - whether such offence as appears needs to be established on evidence admissible in criminal proceedings and establish the offence "prima facie" - whether offender needs to be identified in Coroner's material - whether all particulars of charge should appear in Coroner's proceedings - challenge to Full Bench rejection of these matters as a necessary requirement - consideration of role and discretions of a prosecutor - legislation not to be construed so as to require Court to supervise prosecution or become too closely associated with the commencement of a prosecution - where challenge to commencement of prosecution Court to decided issues on objective consideration of materials before Coroner - alleged abuse of process - proceedings commenced without regard to coronial proceedings - further investigations by prosecutor years after the event - inferences relied upon to challenge prosecution too equivocal - no abuse of process - consideration of material before Coroner and in Report supports appearance of offence against the Act - proceedings properly commenced. CATCHWORDS : Occupational Health and Safety Act, 2000 - transitional provisions in Schedule 3, cl 13 - statutory intention that where proceedings commenced under previous Act they are to be continued under the provisions of the 2000 Act - s 107(3) of 2000 Act applies rather than s 49(4) of 1983 Act - s 107(3) clarifies but does not alter provisions of s 49(4) Occupational Health and Safety Act 1983 s 49(4) LEGISLATION CITED : Occupational Health and Safety Act 2000 Clause 13 Schedule 3 s 107(3) Coroner's Act 1980 s 22 s 22A s 33 Attorney General (Q'ld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502 Australian National Airlines Commission v Newman (1987) 162 CLR 466 Baker v McLeod (Land and Environment Court Cripps J 1 August 1986 unreported Barker v R (1983) 153 CLR 338 at 355 Beckwith v The Queen (1976) 135 CLR 569 at 576 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 465 at 469-70 Cole v Parker [1979] TASR 256 at 258Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cwth) (1981) 147 CLR 297 at 320-321 DPP v Ancon Travel Towers Pty Ltd (unreported, 6 December 1998) Coul Coulton v Holcombe (1990) 20 NSWLR 138 at 174D - 175 Gorman & McLaurin v Fitzpatrick & Barrett (1987) 32 A Crim R 330) GIO Australia Ltd v O'Donnell (1996) 70 IR 1 Inspector Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 Inspector McMartin v Oakbridge Pty Ltd Staunton J [2003] NSWIRComm 214 Inspector Maltby v Abigroup Contractotrs Pty Ltd. and anor Kavanagh J, [2003] NSWIRComm 35 Inspector Maltby v AGL Gas Networks [2003] NSWIRComm 28 Inspector Maltby v State Rail Authority [2001] NSWIRComm 120 Insp Inspector Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464 CASES CITED : Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419 May v O'Sullivan (1955) 92 CLR 654 at 656-9 Maxwell v Murphy (1957) 96 CLR 261 at 267 and 270 per Dixon CJ Newman v Australian National Airlines Commission (1985) 2 NSWLR 573 R v Brentford Justices ex parte Wong [1981] QB 445 at 450 R v Hull (1989) 16 NSWLR 386 (394) R v Kneebone (1999) 47 NSWLR 450Rice v Henley (1914) 19 CLR 19 Richardson v The Queen (1974) 131 CLR 116 at 119-120 Ridgeway v The Queen (1995) 184 CLR 19 at 32 Smith v Corrective Services Commision of NSW (1980) 147 CLR 134 at 139 The Queen v Apostilides (1984) 154 CLR 563 Walton v Gardiner [1992] 177 CLR 378 Watson v Attorney-General (NSW) (1986) 8 NSWLR 685 Watson v Marshall v Caden (1971) 124 CLR 621 at 629 and 649 Waugh v Kippin (1986) 160 CLR 156 Whitten v Hall (1993) 29 NSWLR 68 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon Australia) Pty Ltd (2002) 112 IR 332 at paragraphs 112 and following) WorkCover Authority of New South Wales (Inspector Mansell) v TNG International Pty Ltd and ors (2002) 116 IR 128 WorkCover Authority (Inspector Page) v Growth Equities Services Pty Ltd (unreported 9 September 1994 WorkCover Authority of New South Wales (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamente [2003] NSWIRComm 35 WorkCover Authority of NSW (Inspector Maltby) v AGL Gas Networks Ltd [2003] NSWIRComm 28 Workcover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 at paragraphs 44-48 incl WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of NSW [2000] NSWIRComm 170 HEARING DATES: 06/16/2003; 06/17/2003; 06/18/2003; 09/18/2003 DATE OF JUDGMENT: 12/12/2003

[12]

2 The background to these prosecutions can best be described by reference to the Full Court's decision in WorkCover Authority of New South Wales (Inspector Mansell) v TNG International Pty Ltd and ors (2002) 116 IR 128. In that case, the Full Court set out the history thus: 2 On 4 December 1995 at about 2.00 pm an explosion and fire occurred in Railway Parade, Kogarah. Two people died as a result of the explosion and fire and a number of others, including members of the New South Wales Police Service, were injured. A second explosion occurred about one and a half hours after the first and several fire fighters were injured. 3 It appears that the explosion and fire were caused by the ignition of gas escaping from a natural gas pipeline in, or in the vicinity of, a construction site associated with upgrading works at the Kogarah Railway Station. 4 A coronial inquest and inquiry was held during the period 9 December 1996 and 14 May 1997 into the deaths and the explosions and fire. The Coroner handed down his findings on 17 October 1997. 5 On 12 October 1999, 77 prosecutions in connection with the events of 4 December 1995 were initiated or purported to be initiated by the appellant and another inspector of the WorkCover Authority in the Industrial Registry pursuant to the Occupational Health and Safety Act 1983. The four respondents to this appeal (TMG International Pty Ltd, Ove Arup Pty Limited, Arup Partners Pty Limited, Ove Arup Consult Pty Limited) were each charged with offences under s 16(1) and s 17(1) (a) of the statute. 6 The four respondents were participants in an unincorporated joint venture under the registered business name Capital Works Management (CWM). They had been engaged by the State Rail Authority of New South Wales (SRA) for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities, including the Kogarah Station upgrading (KSU). In October 1995, Abigroup Contractors Pty Ltd was engaged by the SRA to perform construction work at the Railway Station. In November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah as part of the Railway Station upgrade. It was alleged in each of the summonses served on the respondent that: CWM had control of the KSU to a degree pursuant to the terms of engagement with the SRA and had a duty to supervise the performance of the work to ensure that the work was done in a safe manner and without risk to health.

[55]

48 It was submitted, however, that the Occupational Health and Safety Acts were not obviously penal statutes. Attention was drawn to the decision of Waugh v Kippin (1986) 160 CLR 156 concerning the construction of the Factories Shops and Industries Act 1960. A breach of the provisions of that Act could lead to a conviction and the majority of the Court (Gibbs CJ, Mason, Wilson and Dawson JJ) stated that in interpreting the meaning of a provision of such an Act, the following needed to be considered: A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with further industrial safety. In that character it should be construed 'so as to give the fullest relief which the fair meaning of its language will allow' to use the words of Isaacs J in Bull v Attorney-General (NSW); see also Pearce Statutory Interpretation Australia, 2nd 1981. On the other hand there is the consideration to which McPherson J referred that a breach of clause 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J (as he then was) in Beckwith v The Queen as follows: The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of the penal statute, the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams: Craies on Statute Law. The rule is perhaps one of last resort. In the course of that argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with the primary task of extracting the intention of the legislature from the fair meaning of the words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended he should have: … in such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a fork tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as is Sovar v Henry Lane Pty Ltd (1967) 116 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purpose of a civil action (at 164-165). 49 The 1983 Act and the 2000 Occupational Health and Safety Act were to be regarded as remedial in nature and provisions such as the limitation provisions were not to be read as if in a penal statute. In Inspector Forster v Osprey Manufacturing Pty Ltd, the President had referred to authorities in the Commission describing the nature and purpose of the Occupational Health and Safety Act. In particular, reference had been made to Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 465 at 469-70 and Rice v Henley (1914) 19 CLR 19 where Isaacs J commented at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think that one should endeavour to carry out the objects of the legislation as far as the language of the Act will reasonably permit. 50 After referring to that part of the President's judgment in Osprey Manufacturing which applied s 107 of the 2000 Occupational Health and Safety Act to proceedings previously covered by the 1983 Act, the prosecutor drew attention to the provisions of clause 13(3) of the Transitional Provisions. That clause made it clear that the new Part 7 applied "with such modifications as are prescribed by the regulations or are necessary for the purpose of applying that part to any such proceedings". It was then submitted that a strict application of s 49(4) of the 1983 Act was subject to the modifications of s 107(3) of the 2000 Act.

[58]

53 In relation to the submission that the operation of the transitional provisions and that the effective of Clause 13 of Schedule 3 was plain and that s 107 governed the proceedings after the introduction of the 2000 Act, the prosecutor relied upon the judgment in Attorney General (Q'ld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502. It was noted that Gleeson CJ, speaking of the effect of the Interpretation Act, stated: The purpose of [Interpretation Acts] is to resolve uncertainties about legislative intention; not to create them. In the present case, the intention appears to me to be plain. That was said to be the position in relation to the operation of the 2000 Occupational Health and Safety Act. Further, reference was made to paragraph [6] of the Chief Justice's judgment in the following terms: When a statute changes the law, the effect of the change upon existing rights, liabilities, claims or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involve presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute (Maxwell v Murphy (1957) 96 CLR 261 at 267 and 270 per Dixon CJ. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alterations to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies. 54 For the Ove Arup defendants it was submitted that s 107(3) of the 2000 Act had no retrospective application to the initiation of proceedings commenced before the repeal of the 1983 Act. The provisions relevant to the initiation of the present prosecutions therefore were s 49(4) of the 1983 and upon its proper interpretation that required the identification of the offender from the Coronial Report or proceedings. On 12 October 1999, when the summons was filed, the prosecutor had to satisfy the provisions of s 49(4). The failure to do so rendered the proceedings invalid and liable to be struck out up to and including 31 August 2001.

[77]

It is, therefore, a misconception to speak of the prosecutor as owing a duty to the accused to call all witnesses who will testify as to the events giving rise to the offence charged. The misconception has arisen, we venture to think, from treating some observations in the decided cases, which had been made with the intention of offering guidance to prosecutors in how they are to approach their task, as the prescription of an inflexible duty to call all material witnesses, subject to certain exceptions or to special circumstances. Although the pursuit of certainty may have its advantages, the rigid circumspection of a practical decision to be made by the Crown prosecutor in the conduct of the Crown case is not to be numbered among them. 74 In Richardson the crown prosecutor had declined to call as a witness a girl who had been an eye-witness to the events, who was associated with the accused and who had been called in the Local Court in circumstances where the Magistrate had expressed the view that her evidence was unsatisfactory, commenting that she was not a very convincing witness and that her demeanour in the witness box was such that a very real issue arose as to her credibility. The court referred to that matter in the following passage: In the present case there is no basis on which it could be held that the Crown Prosecutor was guilty of misconduct or that any misconduct on his part gave rise to a miscarriage of justice. Ms Gardiner's evidence before the Magistrate seems to have been unsatisfactory and to have justified the conclusion, if justification be needed, that she was not a credible or reliable witness. Moreover, she was an associate of the accused, in particular of Colin Dickinson, and there was evidence from the principal Crown witness that she encouraged the accused in their vicious and unprovoked assault. No dictate of fairness to the accused could properly require that she be called as a Crown witness free from cross-examination by the Crown. Proper presentation of the Crown case required that she be called, if at all, by the defence. There was therefore no basis for any criticism of the Crown Prosecutor" (at 122)

[79]

75 The issue of a prosecutor's discretion in the context of deciding whether or not to call a witness was again visited by the High Court in The Queen v Apostilides (1984) 154 CLR 563. The court then expressed its view as to general propositions that were applicable to the conduct of criminal trials, stating as follows: We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia: 1 The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2 The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3 Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4 When charging a jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. 5 Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasises that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. A decision whether or not to call a person whose name appears on the indictment and from which the defendant wished to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined. (575-576)

[80]

76 The discretion of a prosecutor not to call a witness was more recently examined by the Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450. In dealing with the position where the evidence of a witness might be inconsistent or contradict other evidence, Greg James, J (with whom Spigelman CJ and Smart A-J agreed): 49. Since both experience and logic confirm that merely because witness' evidence is consistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call on a material witness on the ground of unreliability: see R v Apostilides (at 576): … at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion. 50. In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness' evidence is seen as not fitting the prosecution's view of the case is likely to lead to a miscarriage of justice. R v Apostilides deals with the consequences of such an approach. A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly … 77 James J went on to note that, even in the Court of Criminal Appeal, the Crown had not exposed the prosecutor's reasons for not calling the witness. His Honour went on to observe at paragraph [57]: In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with the theory of the accused's guilt. … [59] Not calling the witness without having a principled basis for not so doing accorded ill with the traditional notion of the functions of a prosecutor for the Crown …

[82]

79 Approaching s 49(4) of the Act in this way, it is a decision for the prosecutor whether or not to commence proceedings under the Act. Where s 49(4) refers to the fact that "it appears from the Coroner's report or proceedings" that an offence has been committed against this Act, initially that must appear to be so to the prosecutor. When a defendant challenges such a decision taken by the prosecutor the court will enquire as to whether there are identifiable factors which may justify that decision by a reference to the Coronial proceedings and/or the Coroner's Report. (see Inspector Maltby v Abigroup Contractotrs Pty Ltd. and anor., Kavanagh J, [2003] NSWIRComm 35; Inspector McMartin v Oakbridge Pty Ltd., Staunton J [2003] NSWIRComm 214). That task does not warrant an intrusion into the prosecutorial role and care must be taken as to the form and extent of the Court's inquiry. 80 In McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 the Court of Criminal Appeal held that a judge was not required by the Land and Environment Court Rules 1996 to be satisfied there was a prima facie case before making an order under s 41(1) of the Land and Environment Court Act 1979 ordering the appearance of a person alleged to have committed an offence under the Act to appear and answer the charge. In the course of that consideration, the court held that if a prima facie case was required then it was to be expected that the rules of court would specifically state that necessity. Spigelman CJ, in this context, went on to consider the role of the prosecutor and the extent to which the court might become involved in that role: [69] The reasoning of Cripps J in Baker v Macleod which highlights the undesirability of the court becoming involved in reviewing the sufficiency of evidentiary material, or the performance of the prosecutor, is reminiscent of the reasoning of the High Court, particularly in the cases of Barton, Maxwell and Director of Public Prosecutions (SA) v B, concerning the undesirability of judicial involvement in the prosecution process, to which I have referred above in relation to question 3(i). [70] As Viscount Dilhorne put it in Director of Public Prosecutions v Humphrys [1977] AC 1 at 26: 'a judge must keep out of the arena. He should not have nor appear to have any responsibility for the institution of a prosecution".

[103]

101 It is well accepted that the decision to prosecute is one for the Executive and is generally not reviewable by a court. A case such as Whitten v Hall illustrates that a decision made to commence proceedings simply to bring a prosecution within a limitation period with a view to considering at a later time whether there was sufficient evidence to continue with the proceedings, is not only an abuse but is reviewable by the courts. In that example, there was, in fact, no decision made to prosecute, but merely a decision to commence proceedings in order to avoid the effect of a limitation provision. The failure to call witnesses in the proceedings directly affects the processes of the Court and those decisions are reviewable on objective indications where a miscarriage of justice might occur. I am not convinced, on the material before the Court in this matter, that this particular challenge falls into a category which permits or requires the Court to review the decision to prosecute. Ultimately, that issue need not be resolved as I am of the view, even if the decision to prosecute was reviewable, the material relied upon by the defendants is equivocal and tends to point with a wavering finger in a number of possible directions. The refusal of the prosecutor to give particulars of the matters arising in the Coroner's proceedings or Report which gave the appearance of the commission of an offence may have just as easily resulted from a firm view that the prosecutor was not required to supply such particulars and the decision to prosecute could not be open to such a challenge. Similarly, the prosecutor may have taken the view that his evidence and cross-examination was not required and reference to what was shown objectively to exist from the Coroner's material would suffice. The decision may also have been influenced by the debate over the proper meaning of s 49(4) and a view that encouragement should not be given to the taking of such points by the prosecutor acquiescing in the provision of particulars. It seems, for instance, that the prosecutor took the view, at least in part, that if the commencement of the proceedings were to be challenged on the ground raised by the defendants in this matter, then it was for the defendants to outline the nature of the challenge and make good its challenge while clearly the defendants were of the view that they could call upon the prosecutor to particularise the matters raised in the proceedings or in the Report which were relied upon to establish the appearance that an offence had been committed. Whether or not the stance taken by the prosecutor was justified or not, that material was ultimately particularised and in the present proceedings a number of extracts from the evidence and statements of witnesses has been relied upon as supporting the commencement of the prosecution pursuant to the provisions of s 49(4).

[107]

105 The s 17(1) charges allege at various dates at Kogarah the defendants having, to any extent, control of non domestic premises, namely, the Kogarah Railway Station and adjoining areas which had been made available to persons, not being the defendants' employees, as a place of work, contrary to s 17(1) of the Act failed to ensure that the premises were safe and without risk to health in that it had a charged gas supply line situated in an area where construction work was designed to occur. The particulars referred to the following matters: The defendants' participation in an unincorporated joint venture known as the Stations Upgrade Joint Venture which ultimately operated under the registered business name, Capital Works Management; the SRA had engaged the defendants and the other participants in CWM for the design, contract tender process and supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station Upgrading; that in October 1995, Abigroup Contractors Pty Ltd was engaged by the SRA to perform construction work on the KSU; that in or about 8 November 1995, Abigroup engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of shops 3, 5 & and 9 Railway Parade, Kogarah as part of the KSU; the workplace at the KSU presented acute safety problems because of its situation adjacent to a railway station being continuously used by passenger trains in the centre of Kogarah shopping centre; that CWM had control of the KSU to a degree pursuant to the terms of the engagement with SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risk to health; that pursuant to the terms of the engagement CWM was appointed as superintendent charged with the duty of ensuring the work was conducted in accordance with its contracts in a safe manner without risk to health; on 10 December an employee of AGL Gas Networks Ltd attended the KSU and cut and capped the gas supply line to Shop 7, Railway Parade; that the cutting and capping left approximately 2 metres of the charged gas supply line within the KSU where construction was designed to occur and that the gas supply line remained charged; the existence of the charged gas supply line in an area where construction was to occur was inherently dangerous; the defendant failed to ensure the charged gas supply line at the KSU was adequately protected, adequately identified, adequately marked and failed to ensure that the KSU over which it had control to a degree, was safe and without risk to health. It was also alleged that there was a failure by the defendant to adequately supervise Abigroup and Josef in the performance of their duties to ensure that the KSU was safe and without risk to health, a failure by the defendant to adequately inspect the KSU or to have a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risk to health, a failure by the defendant to have the demolition site examined by competent specialists for the purposes of determining explosive material or conditions which would be a risk to health and safety and a failure by the defendant to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work method statement. In relation to EMTB these particulars were made in the context of: an exposure of the gas supply line prior to 4 December 1999 when excavation removed footings; the use of a stake to mark the gas supply line after it was exposed; the use of an excavator on 4 December 1999 to create a batter in the area where the supply line was situated; a failure to prevent this work close to a gas line and the occurrence of a gas explosion when the gas line was detached.

[110]

108 One of the continuing points made by the defendants is that although there was reference in the Coronial proceedings to CWM, there was no identification of the corporations which made up the joint venture nor was there any material identifying the actual control exercised by each defendant or even the nature of their participation in the joint venture. The Court was taken to numerous references in the transcript of the proceedings before the Coroner, and to statements made by witnesses. Much of the material had also previously been considered by Schmidt J in the SRA case (Inspector Maltby v State Rail Authority [2001] NSWIRComm 120). From these extracts, the following matters were revealed: (a) the management of the Station Upgrading Programme was out sourced to a Joint Venture made up of four companies who were awarded a contract by State Rail for management of the Station Upgrading Programme; (b) the four companies were formally awarded the management contract on 1 August 1994 and had since renamed themselves as Capital Works Management. The responsibilities of the contract with CWM required it to arrange tendering of projects through State Rail's contract facilities, then manage all site works to completion; (c) during the early part of 1995, CWM in conjunction with State Rail's contract division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required, amongst other things, for the demolition of three shops owned by SRA along Railway Parade; (d) the superintending organisation for the Abigroup contract was nominated as CWM. CWM appointed Gary Dilly as the contract superintendent; (e) CWM were to manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over; (f) during the early part of 1995, CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station; (g) in the contract between State Rail and Abigroup, the superintendent was CWM and their appointed representative was Mr Dilly; (h) one of the roles of Mr Blackwell, senior project manager, Station Upgrading, SRA, in the Station Upgrading Group was to carry out random site inspections to examine site safety and report to CWM and the contractor on site any potential safety problems that may occur; (i) the CWM submissions to the Coroner stated that in late July 1994, CWM was appointed by the SRA to provide project management services to the SRA in relation to the Station Upgrade Project which included the refurbishment and development of the Station. CWM was appointed superintendent to the contract between SRA and Abigroup. The role of CWM as superintendent was to ensure that the conditions of the contract between SRA and Abigroup were being carried out satisfactorily. CWM did not contract with any party other than SRA. CWM was not the developer of the site, not the occupier of the site and the only work it performed on the site was that of superintending the contract between SRA and Abigroup. CWM had no sub-contractors; (j) Mr Peter Deane, general manager, Abigroup, told Inspector Maltby that during the course of the demolition works, Abigroup site personnel and CWM, the project manager, were on site discussing protection of services and public safety on a continual basis. The superintendent had no problems with Abigroup's set up; (k) Mr Blackwell said in cross-examination that the day to day running of the project was the responsibility of the superintendent, CWM; (l) Mr Dilly regularly attended the work site to observe the general activities of Abigroup although claiming it was not the Joint Venture's responsibility to supervise the demolition work; (m) site diaries referred to cable search in the presence of Mr Sibley from CWM; (n) part of the contract between SRA and Abigroup, which the Joint Venture was supervising, identified the duty of Abigroup to identify the location of all underground services prior to the commencement of work on site by undertaking site inspections and where identified, the duty of the contractor to take all necessary precautions against damage to the services when any excavations were made. The contractor was also to assume that some of the services were unrecorded. The contractor was to take all necessary steps to protect them from damage due to construction work; (o) Mr Dilly was the superintendent of the contract and Mr Roger Sibley was the superintendent's representative for that contract at Kogarah. Mr Alexander, who also worked for CWM, was involved in the platform extension work. CWM had an office in Station Street and there were fortnightly project review meetings with CWM, covering all the projects that were under their control.

WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors.

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