WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor

Industrial Relations Commission (NSW)|2005-07-01|Before: Walton J, Boland J, Staff J

CITATION: WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor [2005] NSWIRComm 454

APPELLANT WorkCover Authority of NSW (Inspector Keenan)

PARTIES: RESPONDENTS Leighton Contractors Pty Limited Lindores Crane & Rigging (Aust) Pty Limited

Appeal - Occupational health and safety - Appeal against costs and sentence - Two corporate defendants - Construction industry - Collapse of tower crane on building site - Two persons killed - First defendant was principal contractor and hirer of crane - First defendant charged with five offences under the Occupational Health and Safety Act 1983 - First defendant convicted of one offence and other four charges dismissed - Prosecutor ordered to pay 75 per cent of first defendant's costs - On appeal majority overturned costs order made at first instance and ordered each party pay its own costs of first instance proceedings - No order as to costs of the appeal in relation to first defendant - Second defendant hired crane to first defendant - Second defendant charged with nine offences under Occupational Health and Safety Act 1983 - Second defendant found guilty of four offences with remaining charges dismissed - Second defendant fined $185,000 - Prosecutor ordered to pay 80 per cent of second defendant's costs - Costs decision overturned on appeal - Majority ordered second defendant to pay 30 per cent of the Prosecutor's costs - Dissenting judge would have dismissed appeal in relation to costs

CATCHWORDS: Costs - Appeal - Occupational health and safety - Appeal against costs and sentence - Two corporate defendants - Construction industry - Collapse of tower crane on building site - Two persons killed - First defendant was principal contractor and hirer of crane - First defendant charged with five offences under the Occupational Health and Safety Act 1983 - First defendant convicted of one offence and other four charges dismissed - Prosecutor ordered to pay 75 per cent of first defendant's costs - On appeal majority overturned costs order made at first instance and ordered each party pay its own costs of first instance proceedings - No order as to costs of the appeal in relation to first defendant - Second defendant hired crane to first defendant - Second defendant charged with nine offences under Occupational Health and Safety Act 1983 - Second defendant found guilty of four offences with remaining charges dismissed - Second defendant fined $185,000 - Prosecutor ordered to pay 80 per cent of second defendant's costs - Costs decision overturned on appeal - Majority ordered second defendant to pay 30 per cent of the Prosecutor's costs - No order as to costs of the appeal in relation to second defendant - Dissenting judge would have ordered each party to pay its own costs in relation to the proceedings at first instance - Unanimous decision on appeal to dismiss in relation to sentence

Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health & Safety Act 1983

Abigroup Contractors Pty Limited v WorkCover Authority of NSW (Insp. Maltby) (2004) 135 IR 317 Cretazzo v Lombardi (1975) 13 SASR 4 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 Dodd's Family Investments Pty Ltd and Anor v Lane Industries Pty Ltd & Ors (1993) 26 IPR 261 Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 House v The King (1936) 55 CLR 499 Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48 Latoudis v Casey (1990) 170 CLR 534 Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 CASES CITED: O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Stanton v Abernathy (1990) 19 NSWLR 656, 48 A Crim R 16 The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd (2004) 137 IR 33 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31

APPELLANT: Mr J V Agius, SC with Mr P Skinner of counsel Solicitor: Ms H Cameron WorkCover Authority of NSW

RESPONDENTS: LEGAL REPRESENTATIVES: Leighton Contractors Pty Limited: Mr S Rushton, SC Solicitor: Mr B J Whittaker Corrs Chambers Westgarth

Lindores Crane & Rigging (Aust) Pty Limited Mr R Perry, SC Solicitor: Mr R Thirgood McCullough Robertson Lawyers

CORAM: Walton J, Acting President Boland J Staff J Friday 16 December 2005

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LTD AND LINDORES CRANE & RIGGING (AUST) PTY LTD

Application by WorkCover Authority of New South Wales to appeal from a decision of Justice Schmidt given on 23 September 2004 in matter nos 232, 233, 234, 235, 236, 239, 240, 241, 242, 243, 244, 245, 246 and 248 of 2000 JUDGMENT OF THE COURT [2005] NSWIRComm 454

1 We have had the opportunity of reading the draft of Boland J in this matter and do not intend to canvass generally the charges, facts or relevant issues which are concisely set out in his Honour's judgment. 2 We agree with his Honour's reasoning and conclusion in the second appeal (matter no. IRC 6274 of 2004) that the sentence imposed by Schmidt J upon Lindores Crane & Rigging (Aust) Pty Ltd was within the range of penalty appropriately reflecting the overall criminality of the respondent. We also agree that it should be divided equally amongst the four offences. 3 However, while we agree with the broad thrust of his Honour's analysis of Latoudis v Casey (1990) 170 CLR 534, we are unable to agree with the manner of its application to this case or the resulting conclusions in relation to the costs orders the subject of these appeals. 4 The judgments of the majority in Latoudis v Casey must be considered in the factual context of that case. Mr Latoudis was charged with theft of a motor car; receiving stolen goods (car seats, door trims, and door and window handles); and unlawful possession of those goods. The first charge was dismissed when the prosecution led no evidence. Mr Latoudis successfully submitted that he had no case to answer in relation to the second charge. The third charge was dismissed at the close of Mr Latoudis's case. However, the magistrate refused Mr Latoudis's application for costs on the grounds that the informant had acted reasonably in instituting proceedings. 5 In our view the judgments of the majority of the High Court in Latoudis v Casey are authority for the following principle: in ordinary circumstances, it will be just and reasonable to make an order for costs in favour of a defendant against whom a prosecution has failed. Such an order should not be refused because the charge is serious; or because the informant acted reasonably in instituting the proceedings; or on the basis that the informant might be deterred from laying charges in the future. The details which were relevant to that particular case should not obscure the primary consideration governing the exercise of the broad discretion to award costs: whether it would be just and reasonable in the circumstances to award costs to the defendant. Each member of the majority, in separate judgments, clarified this underlying rationale, as noted by Boland J. 6 In our view, it is not permissible to extrapolate from this broad principle (or from the circumstances of Latoudis itself) a mechanical procedure based on the number of charges laid and the outcome in relation to each one. Latoudis v Casey does not authorise the Court to divide criminal prosecutions into component parts - whether charges or particulars of charge - in an effort to allocate discrete "successes" or "failures" before awarding costs based on which party has the most "successes". 7 There is no fine art in determining whether a prosecution has failed: in Latoudis v Casey, it clearly had; in each of the present cases, which resulted in findings of guilt against Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd, it clearly had not. Nor does O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 128 IR 158 compel any different conclusion. In that case, the prosecution was successful (in that three of five charges were proven) and the prosecutor was awarded costs which were then apportioned upon the uncontroversial line of authority stemming from Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Anor v Lane Industries Pty Ltd and Ors (1993) 26 IPR 261, Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48, and Cretazzo v Lombardi (1975) 13 SASR 4. The defendant was not awarded its costs (or any apportionment) in relation to the two charges which were not proven on the basis that - in relation to those charges - it was "successful".

8 The appeals from the discretionary costs orders of Schmidt J are governed by the frequently-cited principles in House v The King (1936) 55 CLR 499 at 505. In our view, the exercise of discretion by Schmidt J, in awarding Leighton Contractors Pty Ltd 75% of its costs in matter no. IRC 6072 of 2004, and in awarding Lindores Crane & Rigging (Aust) Pty Ltd 80% of its costs in matter no. IRC 6274 of 2004, miscarried for several reasons. First, her Honour plainly failed to take into account the sentencing proceedings (in which both of the respondents were penalised) in her assessment of appropriate costs orders.

9 Secondly, and more significantly, the costs orders were based in part on an error of principle in relation to the significance of particulars in criminal cases. The precise manner in which Schmidt J made her calculations remains unclear. It is reasonably clear, however, that her Honour was influenced by the "success" or otherwise of various particulars. In relation to the costs order in the first appeal, for example, Schmidt J held (at [56]): The four charges brought in relation to 29 November failed entirely. Only one aspect, albeit an important one, of the charge in relation to 28 November succeeded. 10 Similarly, in relation to the costs order in the second appeal, Schmidt J observed at [86] that "....three of the four aspects of the charge relating to failure to ensure that the crane was adequately erected and commissioned, were all dismissed." 11 The significance, or function, of particulars in criminal charges was considered by the Criminal Court of Appeal (in a different context) in Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481. Gleeson CJ (with whom Ireland and Bruce JJ agreed) stated (at 484): Although the decision of Talbot J was discretionary, the basis upon which he exercised his discretion emerges clearly from the stated case, and the documents attached to it, and was not in dispute in argument. It was that his Honour took the view, as a matter of principle, that when, in a criminal proceeding, the prosecution fails in its case in chief to establish a particular of the offence charged, then it should not be permitted to seek to rely on material which later emerges in support of that particular. This view, with respect, is heterodox. It involves a misunderstanding of the nature and function of particulars. In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged. It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons ( Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16). There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal ( VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997)). 12 Particulars provide an accused with fair notice of the case to be met, but do not, of themselves, constitute the essential elements of the offence charged: failure to establish a particular is not fatal to a prosecution. Nor should failure to establish a particular - in circumstances where the charge is ultimately proven - result in a more favourable result in relation to costs for the defendant. 13 Finally, although her Honour was not bound by the single judgment of Walton J, Vice-President, in O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (which was approved by the Full Bench although the costs order was not in issue), it was open to Schmidt J to consider it. However, we consider that Schmidt J misapplied O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) and the authorities it relies upon in relation to apportionment. The very basis of the costs order in O'Sullivan was the principle that in a successful prosecution, costs may be awarded to the prosecutor on the basis that "costs will follow the event" but that such costs may be apportioned - or reduced - in certain circumstances. In that case, those circumstances included the fact that two charges - which pertained to discrete matters, easily divorced from the general proceedings - failed. At first instance in these proceedings, Schmidt J declined to order costs in favour of the successful prosecutor, awarded costs in favour of the guilty defendants, apportioned the defendants' costs without any clear discussion of the basis upon which she arrived at her calculations, and yet purported to be following O'Sullivan. In our view, it is clear that, rather than following O'Sullivan, her Honour misapplied it. Orders 14 We make the following orders:

Matter No IRC 6072 of 2004 - Leighton Contractors Pty Limited

The judgment and orders of Schmidt J, to the extent that they relate to the costs of the proceedings at first instance, are set aside.

Each party shall pay its own costs of the proceedings at first instance.

Matter No IRC 6274 of 2004 - Lindores Crane & Rigging (Aust) Pty Ltd

The appeal is upheld to the extent determined in the judgment of Boland J.

The judgment and orders of Schmidt J, to the extent that they relate to the costs of the proceedings at first instance, are set aside.

The respondent shall pay 30% of the appellant's costs of the proceedings at first instance.

15 This judgment concerns two appeals by Inspector Keenan of the WorkCover Authority of New South Wales ("the appellant") from a judgment of Schmidt J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277. The first appeal (matter No IRC6072 of 2004) was against the order made by her Honour that the prosecutor pay 75 per cent of the defendant's costs. The second appeal (matter No IRC6274 of 2004) was against the sentence imposed by her Honour upon the respondent and against the order of her Honour that the prosecutor pay 80 per cent of the defendant's costs. The appeals are pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA(1)(b) of the Criminal Appeal Act 1912. 16 The sentencing proceedings before Schmidt J followed on from an earlier judgment of Peterson J (since retired) concerning liability: WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31. 17 The first appeal from her Honour's judgment relates to the proceedings at first instance that concerned the hearing of five prosecutions of Leighton Contractors Pty Limited ("Leighton" or "respondent") alleging breaches of s 15(1) and s 16(1) of the Occupational Health & Safety Act 1983. Four of the charges concerned the collapse of a tower crane. The crane was utilised by Leighton as the principal contractor in the construction of the Twin Town Resort Car Park at Tweed Heads. The crane was provided and operated by Lindores Crane and Rigging (Aust) Pty Limited ("Lindores"). The crane collapsed on 29 November 1996 causing the death of Mr Rodney Taula, one of Leighton's employees and Mr Wayne Master, an employee of a subcontractor. An employee of Lindores, Mr Timothy Perrett, also suffered injury. 18 The fifth charge concerned an incident on site the previous day, 28 November 1996, when the tower crane was lifting a kibble, or large metal container, containing wet concrete. As it was being lifted it bounced and came into contact with scaffolding upon which a number of workers were located. This caused a number of workers to jump from the scaffold but no person was injured. It was only this charge, brought under s16 of the Act that was made out against Leighton. The other four charges were dismissed. 19 Leighton was ordered to pay a penalty of $130,000, with a moiety to the prosecutor. The prosecutor was also ordered to pay 75 per cent of the defendant's costs, as agreed or assessed in accordance with the Court's Rules.

20 In the first appeal the appellant claimed the following relief: 1 That the appeal be allowed. 2 That the said order be quashed and in substitution therefore this Honourable Court order that the respondent pay the costs of the appellant of and incidental to:

a. the trial before Peterson J; b. the sentencing proceedings before her; and c. this appeal. 3 In the alternative to 2(a), that the order as to costs be quashed and in substitution therefore this Honourable Court order that the respondent pay such a proportion of the costs of the prosecution of and incidental to the trial before Peterson J as this Court deems fit.

21 The second appeal relates to the proceedings at first instance where nine charges were brought against Lindores under s 15(1) and s 16(1) of the Act in relation to the incidents that occurred on 28 and 29 November 1996. Whilst four of the prosecutions brought against Lindores were successful under both s15 and s16 in relation to both 28 and 29 November, I note that it was only one aspect of each of those charges - that Lindores had failed to ensure that the crane was adequately erected and commissioned - which was made out in each case. Lindores was ordered to pay a total penalty of $185,000, with a moiety to the prosecutor. The prosecutor was also ordered to pay 80 per cent of the defendant's costs, as agreed or assessed in accordance with the Court's Rules. 22 In the second appeal the appellant claimed the following relief: 1 That the appeal be allowed.

2 That the sentence be quashed and in substitution therefore this Honourable Court re-sentence the respondent by imposing such increased penalty as to it seems fit.

3 That the order as to costs be quashed and in substitution therefore this Honourable Court order that the respondent pay the costs of the appellant of and incidental to: (a) the trial before Peterson J; (b) the sentencing proceedings before her; and this appeal. 4 In the alternative to 3(a), that the order as to costs be quashed and in substitution therefore this Honourable Court order that the respondent pay such a proportion of the costs of the prosecution of and incidental to the trial before Peterson J as this Court deems fit. FIRST APPEAL - LEIGHTON CONTRACTORS PTY LIMITED

23 In order to understand her Honour's approach to the question of costs it is necessary to first understand what charges were laid against Leighton and what Peterson J found in respect of each of them. His Honour summarised the charges against Leighton thus: LEIGHTONS IRC00/232 15 (1) - 29 November 1996 - Fail to provide to Taula and Woolaston a safe system of work for the pouring of concrete to form columns C404, C201 & C213 by means of kibble IRC00/233 15(1) - 29 November 1996 - Fail to provide adequate instruction and information for the pouring of concrete to form columns C404, C201 & C213 by means of kibble 16(1) - 29 November 1996 - Fail to ensure Master, Lowther and Perrett provided with IRC00/234 (a) Supervision (b) Safe system (c) Instruction and information IRC00/235 15(1) - 29 November 1996 - Fail to provide adequate supervision for the pouring of concrete to form columns C404, C201 & C213 by means of kibble 16(1) - 28 November 1996 - Fail to ensure Master, Lowther, Perrett, Gee and McLaren not exposed to risks, particularly in not providing: IRC00/236 (a) Supervision (b) Safe system (c) Instruction and information

24 The only charge made out against Leighton was IRC00/236 and only in relation to a failure to provide a safe system of work. In the respect, Peterson J found at [89]-[95]: 89 It remains in this context to consider the circumstances where a kibble near flatstick may bounce, with or without an effect from downward bias in the luff pump or the pressure setting, in a manner which endangers workers who are working on a scaffold as here it obviously did on 28 November 1996. To accept that this is normal behaviour or experience, would be to accept that the system provided for loading columns with concrete could endanger workers in this way. 90 There was some conflict in the evidence about whether, on 28 November 1996, the kibble dropped a substantial amount, estimated by Mr McLaren as about 6 ft, or a matter of inches, estimated by Mr Burgess at 4-8 inches, and Mr Kassebaum at 12-18 inches. The latter two asserted that the kibble did not "drop" but rather "bounced" reflecting flexibility in the jib rather than any other effect. I prefer the evidence of Messrs Kassebaum and Burgess in this respect. While there was also some conflict concerning the effect on the scaffold and what the individuals did after the connection of the kibble with the scaffold, I prefer Messrs Kassebaum and Burgess to the evidence of Mr Gee as to the effect upon the individuals. Whether it arose from the drop of the boom or the lifting of the scaffold, there was a clear exposure to danger of the three persons working on the scaffold. 91 On 28 November 1996 Mr Burgess, having heard the kibble strike the scaffold, turned towards it and saw Mr Master jump off the scaffold. He described Mr Master as jumping off the scaffold and saying: The column should be pumped, not by crane. It is too far for the crane to reach.

92 Mr Burgess said the person working with Mr Master (now identified as Mr McLaren) climbed onto the column. Mr McLaren said that Mr Gee ducked away from the kibble. Mr Gee said to McLaren, "You should have hung onto the kibble. The kibble won't fall." This suggestion, with its Chaplinesque overtone, typifies what I consider to have been a strong tendency in Mr Gee to underplay the significance of these events and the risk involved.

93 Mr McLaren testified that he was concerned about the crane working at flatstick and that he and Mr Master had discussed utilising either a concrete pump or mobile crane, both of which they had used on earlier occasions. Mr Master went away to apparently seek one or the other of those and returned to inform Mr McLaren that they were going to deal with a small kibble. That equipment was not available. They also discussed utilising the large kibble with half loads, but Mr McLaren was unaware of what Mr Master did about that.

94 He described the large kibble and his feelings about it this way: A kibble at the end of the crane loaded up with concrete had a certain amount of movement. It was a natural movement that you expect. You expect it to sway and move around. This kibble at that distance out moved more than you would expect and it did not feel safe.

95 I find myself unable to see how it could be said that this state of affairs was not the responsibility of Leightons. That an obvious degree of risk was experienced by workers on Leightons' site as the direct result of the adoption of a system of work that created that risk was a matter which must be attributable to Leightons. I find the offence proven as to system of work in IRC00/236. 25 In her consideration of penalty, Schmidt J found at [28] of her judgment: Plainly the system ought not to have permitted the bouncing kibble to come into contact with the scaffold where employees were working. It was the defendant's obligation to ensure this. There was no case advanced that there was any difficulty in this being ensured by the defendant. It must be concluded that the risk was readily foreseeable and avoidable, by the use of available alternative methods of work. 26 On the question of costs her Honour noted at [41] that the order for costs was discretionary and, whilst the usual approach to costs was that costs followed the event, concluded that the discretion need not be exercised on that basis, citing the observations of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 543: I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. As I have noted, the making of separate provision in s.97(a) and (b) is not without significance. The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation. These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings. 27 At [45] of her judgment, Schmidt J referred to the approach of Walton J in O'Sullivan v Crown in Right of State of New South Wales (Dept of Education and Training) (2003) 128 IR 158 at 202, applying Dodd's Family Investments Pty Ltd and Anor v Lane Industries Pty Ltd & Ors (1993) 26 IPR 261 at 272. There it was observed that: Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation. 28 At [49]-[50] her Honour stated: 49 It must be concluded that, given the way in which these charges were framed and the prosecutions then heard together, the prosecution found it necessary to call the evidence which it did, in order to make out the various charges laid and to meet anticipated defences. That cannot mean, in circumstances such as this, where the charges laid have largely failed, that not only should the prosecution be relieved of any obligation to meet the defendant's costs, but that the defendants should also meet the prosecution's costs, in relation to all charges. To so exercise the costs' discretion would, in my view, not achieve justice as between these parties.

50 I also cannot accept the submission that if the prosecution had only pursued the charge upon which it succeeded, all of the evidence led would have been called. This trial lasted for over three weeks. In relation to Leightons, the only charge made out was in relation to one aspect of the system of work charge brought in relation to the events of 28 November. The other four charges related to 29 November. What occurred on 29 November had only limited relevance to the offence made out. It is difficult to see the relevance of the evidence led in relation to the aspects of the charges concerning matters such as inadequate supervision, training, instruction and information, work method statements, the crane's inherent design defects and undetectable defects in welds, in relation to the charge upon which the prosecution succeeded. This must be reflected in the costs order made. 29 At [54]-[56] Schmidt J ultimately concluded: 54 I am satisfied, nevertheless, that the circumstances here in question do put beyond doubt that the defendant must receive an order in its favour for costs. Given the circumstances which arise for consideration, I take the view that a just exercise of the discretion is not to make costs orders in favour of both the prosecution and the defendant, in respect of the various charges which succeeded and failed, but rather to adopt the approach of apportionment, utilised by Walton J in O'Sullivan . 55 In that case five prosecutions were brought. Two failed. Walton J took the view that they were discrete matters, in respect of which little time was taken. His Honour made a costs order in favour of the prosecutor, but with only 70% of the costs recoverable from the defendant.

56 Here, five charges were brought, in circumstances where Peterson J was justly critical of the approach adopted to their drafting and the consequences which this had for the trial. The four charges brought in relation to 29 November failed entirely. Only one aspect, albeit an important one, of the charge in relation to 28 November succeeded. I am satisfied that in all of the circumstances, a costs order should be made in favour of the defendant, but with only 75 % of the costs recoverable from the prosecutor. Consideration

30 The approach to be adopted in appeals brought pursuant to s 196 of the Industrial Relations Act and s 5AA of the Criminal Appeal Act is as an appeal stricto sensu: P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 at [12][13]; Seda Pty Limited v Inspector James (WorkCover Authority of New South Wales) [2003] NSWIRComm 368 at [13]-[16]. 31 The order for costs made at first instance was under s 253(1A) of the Criminal Procedure Act 1986, which provides: (1A) A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2). 32 Section 253(2) provides: (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. 33 The sentencing judge decided that because four of the five charges against the respondent were dismissed and that the evidence relating to the events of 29 November was not necessary to make out the charge relating to what occurred on 28 November, the prosecutor should have no costs and the respondent should have 75 per cent of its costs. Her Honour also appears to have had regard to what she considered to be a flawed approach in the prosecution's drafting of the charges and the consequences that had for the trial. 34 It is now beyond any question that, in ordinary circumstances, where a defendant has secured the dismissal of a criminal charge it would not be just and reasonable to deprive it of an order for costs: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 542. In Latoudis v Casey, of course, all of the charges against the defendant had been dismissed. The circumstances of the present case are not so straightforward. 35 It might seem somewhat perverse that the prosecution was not awarded any costs and, indeed, costs were awarded against it, in circumstances where the prosecution was successful in having the defendant found guilty of a serious offence that attracted a substantial penalty of $130,000. Of course, that perception of the outcome at first instance does not take full account of the dismissal of the other four charges against the respondent. I note, at this point, one alternative that may have been open to her Honour in the exercise of her discretion would have been to award costs to the prosecutor in relation to that charge where it was successful, including costs of the sentencing proceedings, and to give the respondent its costs in relation to those charges that had been dismissed. 36 Instead, her Honour adopted the approach of apportionment as utilised by Walton J, Vice President in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 (which was not disturbed on appeal: See The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198). In O'Sullivan, Walton J held as follows: 198 In a successful prosecution, costs may be awarded to the prosecutor on the basis that 'costs will follow the event': WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40 at [19]. However, costs may be apportioned in certain circumstances. The relevant general principles in that regard are contained in the judgment of Toohey J in Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48, subject to the qualifications in Cretazzo v Lombardi (1975) 13 SASR 4, namely: (a) Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order; (b) Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which it has failed; (c) A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law; and (d) Notwithstanding the above, the interests of justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

199 I note also the decision of the Full Federal Court in Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Anor v Lane Industries Pty Ltd and Ors (1993) 26 IPR 261 at 272 as follows: Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.

200 The prosecutor failed in respect of charges IRC 610 of 2001 and 611 of 2001. Those charges alleged breaches of s15 of the Act, the respective particulars of which were (very generally) failure to provide adequate counselling and failure to provide adequate training in self-protection or communication strategies. Little evidence was adduced by the prosecutor to support either of these charges, resulting in less time being spent hearing those matters. In my view, the two charges that failed were discrete matters which, although having some proximity to the factual circumstances giving rise to all prosecutions, were in some respects distinct from the charges on which the prosecutor succeeded. In the circumstances, I consider that this is an appropriate case for apportionment of costs.

201 In relation to the manner in which costs should be apportioned, Mr Hodgkinson submitted that the approach to apportioning costs should not be a mathematical one, and that 50 per cent was the appropriate balance. Having regard to both the manner in which the charges were dealt with in the trial and their outcomes and the failure by the defendant as to additional matters raised by it (such as the issue of a moiety) and taking into account the sentencing proceedings, I do not consider that 50 per cent represents the true balance in these matters. Even on a mathematical analysis, which I do not propose as the means for determining costs, there is no basis for an apportionment of 50 per cent. 202 I propose making an order for costs in favour of the prosecutor, with an apportionment of the costs recoverable by the prosecutor from the defendant (that portion of costs being 70 per cent). 37 In relation to the two charges that the prosecutor in O'Sullivan failed to make out, Walton J considered they were essentially discrete matters and less hearing time had been consumed in relation to those matters than the other three charges in respect of which the defendant was found guilty. His Honour considered that an appropriate balance could be struck by awarding the prosecutor 70 per cent of the costs. 38 There was nothing controversial, with respect, about the approach taken by the Vice President. But in adopting an approach of apportionment in this case Schmidt J awarded the costs to the respondent and left the prosecutor with no costs including no costs for the sentencing proceedings despite its success in relation to the 28 November charge. 39 There can be no issue in principle about a judge at first instance using the apportionment approach to costs, provided it produces a just and reasonable outcome. In determining a defendant's entitlement to costs some assistance can be gained from the observations of McHugh J who constituted part of the majority in Latoudis v Casey: · The rationale of a costs order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred (567).

· A successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution (569).

· The order is not made to punish the unsuccessful party. Its function is compensatory (567).

· The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs (569).

· A successful defendant cannot be deprived of his or her costs because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs. Nor can the successful defendant be deprived of his or her costs because the conduct of the defendant gave rise to a suspicion or probability that he or she was guilty of the offence the subject of the prosecution. Hence, in most cases, the successful defendant in summary proceedings, like the successful party in civil proceedings, should obtain an order for costs in respect of those issues on which the defendant succeeds (569-570). 40 I also note the observations of Mason CJ at 542-543: [I]n exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott (1981) 53 FLR 108 at 111. Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings. ... The argument that police and other public officers charged with the enforcement of the criminal laws will be discouraged by the apprehension of adverse orders for costs from prosecuting cases which should be brought is without substance and is no longer accepted by the courts...

41 It is clear from Latoudis v Casey that the successful defendant in summary proceedings should obtain an order for costs in respect of those issues on which the defendant succeeds; that a successful defendant cannot be deprived of his or her costs because the charge is brought in the public interest or by a public official; or because the charge is serious; or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs; and, costs are not awarded by way of punishment of the unsuccessful party but rather the function of a costs order is compensatory. 42 In the present case, whilst the appellant laid five separate charges against the respondent, it seems to me that in prosecuting the charges the appellant took a holistic approach and regarded the events of 28 and 29 November as constituting a series of closely interconnected events such that the events of 28 November could not be separated from the events of 29 November. In opening the case for the prosecution before Peterson J, senior counsel for the prosecutor described the incident on 28 November and alleged the kibble dropped about "four feet", striking the scaffold and narrowly missing workers on the scaffold. Senior counsel submitted: Unfortunately, that near death experience by the men was wasted because the next day there was a mere (sic - near?) repetition of this incident and it had fatal consequences... Significantly, no lessons had been learned from the incident of 28 November. That incident, and our case will be, should have sounded the alarm bells... 43 Further, senior counsel for the appellant submitted it was necessary for the prosecution at first instance in the sentencing proceedings to bring evidence in relation to what occurred on both 28 and 29 November; what happened on 29 November had to be adduced for the purpose of a successful prosecution of the 28 November charge. Mr Agius SC for the appellant submitted in this regard: Now our submission to Schmidt J was that in relation to the 28th and the 29th as against Leightons, it was necessary for the prosecution to call such evidence as there was as to how it came about that the crane fell over and that that evidence would have had to be called in any event and it wasn't simply a matter of proving what the system of work was that Leightons had in place on 28 November. Now our submission was rejected by her Honour and we say that her Honour ought not to have rejected that submission. In relation to 28 November, if we had simply proved the factual circumstance of the moving about of the kibble and the ponder (sic) weight, it coming into contact with the scaffold and the obvious danger to the workers there without calling any evidence at all about the structure and integrity of the crane, given that that crane had fallen over the next day on the 29th, we would have been met with a s53 defence. We would have been not able to negate an inference, or meet a suggestion that what happened on the 28th was no more than a precursor to what was going to happen on the 29th, that there was something else going on with this crane or the way that it was being driven, or what we have in the Markload system, or the improper graduations on the gauge which Leightons had no responsibility for and that this had some cause in the event on 28 November. So it's our submission, and we had made this submission to Schmidt J and we make it again, that in relation to the incident of the 28th, given what happened to the crane on the 29th, that's when it fell over, we would always be going to be litigating the issue as to how it came about that the crane fell over. Was there any other structural problem with the crane? Was it a matter of driver error on the 28th and/or on the 29th? Was it some matter of some fault with the crane which Lindores was responsible? We could not have avoided calling that evidence in the case against Leightons. Now her Honour found against us, but she doesn't give any reason for that finding at all. She simply says "I don't accept that", but in doing so, her Honour has failed, in our respectful submission, to take any cognizance of the likelihood of s53 defence, or to take any cognizance of what we, in the likelihood, would be met with if we had simply sought to prove without calling any evidence about structural integrity or otherwise of the crane, simply sought to prove the unsafe system of work on the 28th. 44 The effect of the appellant's approach to prosecuting the charges was that the respondent had no choice but to prepare and present its case to meet that presented by the appellant. The respondent was put to the cost of meeting a case that consisted of five interconnected charges. The appellant failed in making out four of those charges. On the authority of Latoudis v Casey there is a strong case for holding the respondent should have its costs. 45 If it had been the case that the appellant had succeeded on four of the charges and had failed in making out the fifth charge, it is probable costs would have been awarded to the appellant on an apportionment basis with the respondent left to pay its own costs in respect of that charge where the prosecution had failed. Such an outcome would, in my opinion, have been uncontroversial (see, for example, O'Sullivan where the prosecutor was awarded 70 per cent of the costs but the defendant was awarded nothing, notwithstanding that two charges were dismissed). That the respondent successfully defended four of the charges but was found guilty of the fifth charge, provides no compelling basis to favour the appellant by giving it its costs in respect of the fifth charge where, if the situation had been reversed, the respondent would probably not have been awarded costs for its successful defence of one of the five charges. 46 A relevant consideration, however, would be if the charge in respect of which the appellant had been successful constituted the bulk of the trial proceedings and the other four charges were subsidiary or in relation to which the respondent would have needed to spend little time. In other words, if the charge relating to the events of 28 November was the central issue in the proceedings and most of the parties' preparation and presentation was consumed by having to concentrate on that charge, a different outcome in terms of cost might be warranted. 47 Because of the manner in which the appellant prosecuted the case at first instance, that is, in not seeking to differentiate in the presentation of evidence between the events of 28 November and those of 29 November, because there were overlapping charges in relation to 28 and 29 November (see IRC00/234 and IRC00/236) and because it was a joint trial of the two defendants (Leighton and Lindores), it is impossible to determine a satisfactory split between the time taken in respect of the charge relating to 28 November and the charges relating to 29 November. However, I note what Mr Agius conceded, namely, that: What took time in the case was the essential issue as to how it came about that the crane had actually collapsed on 29 November. A great deal of time was spent on that. 48 The next logical question then might be whether or not what occurred on 29 November had any relevance in respect of the events of 28 November and whether much of the evidence led by the appellant in relation to 29 November needed to have been led in relation to 28 November. If not, it would serve to reinforce a conclusion that, on appeal, there should be no interference with her Honour's costs order. On the other hand, if the evidence about the crane's collapse was necessary to make out the charge on 28 November and to deal with the prospect of a submission by the respondent relying on defences under s 53 of the Act, the apportionment of costs ordered by her Honour may not have been just and reasonable. 49 On one view of it, however, the question need not be answered. Having chosen to conduct its case the way it did by effectively rolling up all of the charges into a series of interdependent or interconnecting occurrences, making it impossible to separate out from the proceedings the time taken up in respect of the charge relating to 28 November, it is arguable there is no proper basis for now awarding costs to the appellant in relation to IRC00/236. In other words, having decided that it needed to bring evidence about the crane's collapse and its causes to make out its case in respect of both the 28 and 29 November charges, and having not been successful on four of the five charges, the appellant cannot now complain about an apportionment approach to costs where the respondent is given 75 per cent of its costs. 50 The appellant submitted, however, it was bound to explore every reasonable avenue for prosecution of those who might have been responsible for a breach of the occupational health and safety laws; that in the present case all of the evidence adduced to support the 28 November charge was necessary. Reference was made to WorkCover Authority of NSW (Inspector Dawson) v Plastachem Pty Ltd (2001) IR 110 IR 351where at [61] the Full Bench observed: The appellant doubtless had a responsibility to conduct a full investigation of the matter and to institute such charges as might appropriately be brought. 51 Undoubtedly, the observation by the Full Bench in Plastachem was correct, with respect. But it is not an easy matter, for the purpose of determining the costs issue, to place oneself in the position of the prosecution and make judgments about just what evidence the appellant needed to have brought in order to make out a successful prosecution of the 28 November charge. Nevertheless, I have formed the view that it was not essential for the prosecution to have adduced all of the evidence regarding the structural/design defects in the crane to make out the charge relating to 28 November. This evidence took up a large part of the proceedings before Peterson J. 52 There was no indication that a structural/design defect in the crane caused the incident on 28 November. The kibble hitting the scaffolding came about because the jib of the crane (which had been extended by 20 feet) was near horizontal or in the "flatstick" position giving it a working radius of 62 metres. Concrete was to be poured into two columns. The radii of the columns from the crane were 58 and 61 metres. Peterson J at [94] referred to the evidence of Mr McLaren that: A kibble at the end of the crane loaded up with concrete had a certain amount of movement. It was a natural movement that you expect. You expect it to sway and move around. This kibble at that distance out moved more than you would expect and it did not feel safe. 53 At [95] Peterson J held: 95 I find myself unable to see how it could be said that this state of affairs was not the responsibility of Leightons. That an obvious degree of risk was experienced by workers on Leightons' site as the direct result of the adoption of a system of work that created that risk was a matter which must be attributable to Leightons. I find the offence proven as to system of work in IRC00/236. 54 The evidence relating to the structural/design problems with the crane and its capacity to carry certain loads at different radii was adduced to explain the collapse of the crane on 29 November, not why the kibble bounced on 28 November. And, indeed, it would not have been necessary to adduce that evidence in relation to the bouncing kibble because it should have been reasonably apparent the reason it bounced beyond what was the normal experience was due to the jib being flatstick and the loaded kibble being close to the extremity of the jib. Such a system of work was unsafe. 55 The incident that gave rise to the charge on 28 November was capable of being severed from the incident that occurred on 29 November and treated separately in terms of the evidence that was necessary to make out the charge. That is not a criticism of the appellant for taking a 'belt and braces' approach to the evidence but having taken an approach that was not essential, in my opinion the appellant cannot reasonably expect the respondent to bear the cost of having to deal with all of that evidence. 56 I note that in its written submissions before Peterson J the appellant stated: This offence [IRC00/236] is made out without any consideration of whether the crane was overloaded at the time and independently of any finding about the strength of the crane or the capacity of the crane to lift the payload that comprised the kibble and its contents . It was clearly unsafe to permit the occurrence of a work practice whereby these workers could be in a place of peril should the kibble drop. Even on the version of events that has the kibble "bouncing" the offence is made out. If it was the case that kibble bounce was a usual feature of this crane's operation the defendant is not relieved of its responsibility. The bouncing of a kibble which even empty weighs .6 tonnes is of itself a safety and health risk if it occurs in the presence of workers on a scaffold working at height. Indeed the actions in permitting the operation of the crane, or the continuation of a work system where this was a usual occurrence increases rather than diminishes the culpability of the defendant (our emphasis). 57 Later in its written submissions at first instance, the appellant addressed the issue regarding the capacity of the crane to cope with loads at various radii but these submissions were put in the alternative. This approach to the evidence by the appellant at first instance tends to support the view that the incident on 28 November was quite separate from what occurred on 29 November and that the prosecution could have run its case accordingly. 58 Mr Agius for the appellant submitted that it was necessary to adduce evidence regarding the structural/design problems with the crane and its capacity to carry certain loads at different radii in order to anticipate the respondent's reliance on defences under s 53 of the Act. That is to say, in the event the respondent was to contend, for instance, that the bouncing kibble that collided with the scaffold on 28 November was the result of causes associated with structural defects over which the respondent had no control, the appellant needed to be in a position to be able to rebut such submissions. 59 Given the strength of the appellant's primary submission before Peterson J regarding the unsafe system of work employed by the defendant on 28 November (i.e., the charge was made out without any consideration of whether the crane was overloaded at the time and independently of any finding about the strength of the crane or the capacity of the crane to lift the payload that comprised the kibble and its contents), to introduce a very large amount of evidence regarding the structural defects in order to anticipate a defence under s 53 would seem to me to have been excessive and not something in respect of which the appellant should be awarded costs. 60 Schmidt J did not explain how she approached the costs of the sentencing proceedings. The sentencing costs would normally go to the appellant and it is not apparent how those costs fitted into her Honour's apportionment of the costs. It may be that the respondent should have been awarded a lesser figure than 75 per cent or the appellant should have been awarded the sentencing costs. However, I am not persuaded that the exercise of her Honour's discretion in awarding costs to the respondent was ultimately unjust or unreasonable. 61 In summary, therefore, considering the end result, I would not interfere with the exercise of her Honour's discretion for the following reasons: (1) The respondent was put to the expense of defending five charges relating to a series of closely interconnected events of 28 and 29 November with the prosecutor's case being put in such a way that events of 28 November could not be separated from the events of 29 November. (2) The appellant was successful in relation to only one charge and that related to the events of 28 November. It was not essential for the prosecution to have adduced all of the evidence regarding the structural/design defects in the crane to make out the successful prosecution of charge relating to 28 November yet the defendant was put to the expense of dealing with all of the evidence regarding the structural/design defects. (3) The successful defendant in summary proceedings should obtain an order for costs in respect of those issues on which the defendant succeeds; a successful defendant cannot be deprived of his or her costs because the charge is brought in the public interest or by a public official; or because the charge is serious; or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs; and, costs are not awarded by way of punishment of the unsuccessful party but rather the function of a costs order is compensatory. (4) It is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. In the present case the appellant caused the respondent to incur the costs of defending five charges and in respect of four of those charges, the respondent was successful. If one were to regard the five charges as one proceeding, the respondent was overwhelmingly successful. SECOND APPEAL - LINDORES CRANES AND RIGGING (AUST) PTY LTD

62 As with the charges against Leighton, Peterson J prepared a table summarising the charges against Lindores: LINDORES 15(1) - 29 November 1996 IRC00/239 -Fail to ensure safety of Lowther and Perrett in that: failed to ensure they were adequately supervised 15(1) - 29 November 1996 IRC00/240 -Fail to ensure safety of Lowther and Perrett in that: failed to provide them with adequate training and instruction 15(1) - 28 November 1996 -Fail to ensure safety Lowther and Perrett in that: IRC00/241 failed to ensure plant safe and free from risk In particular, failed to ensure crane adequately erected and commissioned 15(1) - 28 November 1996 IRC00/242 -Fail to ensure safety of Lowther and Perrett in that: failed to make enquiries re increasing length of boom 15(1) - 29 November 1996 IRC00/243 -Fail to ensure safety of Lowther and Perrett in that: failed to ensure crane adequately erected and commissioned 16(1) - 29 November 1996 -Fail to ensure safety of Perrett, Taula and Master in that: failed to make enquiries prior to increasing length of boom IRC00/244 failed to provide adequate supervision failed to provide adequate training and instruction failed to provide a work method statement failed to ensure crane adequately erected and commissioned 15(1) - 29 November 1996 IRC00/245 -Fail to ensure safety of Lowther and Perrett in that: failed to make enquiries prior to lengthening boom 16(1) - 28 November 1996 -Fail to ensure safety of McLaren, Gee & Master in that: failed to make enquiries before increasing boom length IRC00/246 failed to provide adequate supervision failed to provide adequate training and instruction failed to provide a work method statement failed to ensure crane adequately erected and commissioned 15(1) - 28 November 1996 IRC00/248 -Fail to ensure safety of Lowther and Perrett in that: failed to provide adequate supervision

63 The charges against Lindores in respect of which the prosecution was successful were IRC00/241, 243, 244 and 246 but only in respect of the particular that the failure to ensure the crane was adequately erected and commissioned in that the graduation shown on the load gauge was not adequate for the work to be performed. The remaining charges were dismissed. 64 It is important to note at the outset, however, that despite the finding as to culpability regarding the inadequacy of the load gauge, Lindores was acquitted of any responsibility for the collapse of the crane. That is, there was no causal connection between the inadequacy of the load gauge and the crane's collapse. The collapse of the crane resulted from the deficiencies identified by the experts in relation to its design. 65 Before going to the findings of the sentencing judge and the grounds of appeal, which seek to challenge both the adequacy of the penalty imposed on Lindores and the award of 80 per cent of costs to the respondent, it is useful to set out the facts as found by Peterson J relevant to those aspects of the charges in respect of which the appellant was successful. 66 The crane driver had a number of gauges in the cabin of the crane. First, there was the load gauge indicator that indicated the approximate weight of the load on the hook, but only when the load was actually being hoisted up or down. The load gauge indicator did not have graduations on its face to give an accurate measure of loads under 2 tonnes when operated at high speed or 4 tonnes at low speed. It was the absence of these graduations that led Peterson J to find in the circumstances that there was a risk to health and safety. 67 There was also in front of the driver a metal strip upon which was engraved the various maximum load weights according to the distance out the crane might work. The metal strip, called a radius indicator, had a moving pointer, which indicated the radius at which the jib was positioned and the corresponding maximum safe working load ("SWL"). As Peterson J found, at a closer point of working, with the jib more towards the vertical, the largest SWL could be carried. At the furthest point, with the jib near horizontal (called "flatstick"), the SWL was very much reduced. The radius indicator showed a range of working distance/SWL's from 8 tonnes at 20 metres distance, to 1.5 tonnes at 62 metres, that is, flatstick. 68 There was also installed in the crane an electronic load-limiting device that could warn of any overweight condition and disable the crane from operating. Because the length of the jib had been extended the device, referred to as a Markload, was of no use and had been de-activated. 69 The crane was used to pour columns identified as C101 and C102 on 28 November 1996. The centre of column C101 was 60.715 metres from the centre of the crane. The centre of column C102 was 58.37 metres from the centre of the crane. Larry Gee was working as a dogman and John Lowther was driving the crane. Mr Gee was standing on a scaffolding platform near columns C101 and C102, together with Wayne Master and Glenn McLaren. The columns were approximately 3 metres high and the scaffolding platform was at a similar height. 70 At approximately 4:45 pm, the large kibble was filled with concrete. During the process of approaching the columns with the load of concrete the kibble became attached to the safety hand railing on the scaffolding, causing it to move sharply. Mr Gee released the kibble by turning it and the scaffolding dropped back down. The men commenced to pour concrete into column C102. The kibble weighed approximately 0.620 tonne and had been loaded with 1.4 cubic metres of concrete weighing 3.36 tonnes. The total weight of the kibble was 3.98 tonnes before column C102 was poured. Mr Lowther was then directed by Larry Gee to lower the kibble over column C101 so that the concrete could be poured. The kibble's weight was well in excess of the recommended weight in the load chart for the relevant radii that was required to pour the concrete into columns C101 and C102. Mr Lowther was aware that the crane's SWL at a 62-metre radius was 1.5 tonne. 71 On 29 November 1996, Mr Gee was dogging the crane and Mr Lowther was the driver. The large kibble had been loaded with 1.4 cubic metres of concrete to pour columns 404, 201 and 213. Column 404 was at a radius of 37 metres and the load was within a SWL at that distance. Column 404 was poured without incident and the crane moved the load out to pour the remaining columns. It stopped with the boom above column 201. At this time the weight on the hook was in excess of the SWL of 1.5 tonnes at that radius. The boom collapsed killing 2 workers, Mr Taula and Mr Master. Mr Perrett jumped clear. 72 After the collapse the kibble and the remains of its contents were weighed and found to weigh 2.96 tonnes dry weight. Peterson J concluded that the "loaded kibble remains at a weight well in excess of the relevant SWL flatstick…the kibble weighed at least 2.96 and perhaps 3.2 tonne." 73 In relation to the charges of failing to ensure the crane was adequately erected and commissioned, in that the graduation shown on the load gauge was not adequate for the work to be performed, Peterson J found as follows: 102 The particulars of the charge that the crane was not adequately erected and commissioned include that: a) the Markload moment limiting system was not operable; b) the luff pump bias was in a downward direction; c) the pressure setting for the luff pump was at a lower level than recommended by the manufacturer; and d) the graduation shown on the load gauge was not adequate for the work to be performed.

103 However, the Markload allegation has not been established to my satisfaction as having exposed the workers to risk. The reasons for that view are, firstly, that a load limiting device is not required in a crane in NSW; that it can be switched off at the whim of the operator; and that some of the witnesses expressed some concern about the reliability of them in any event. Thus it seems to me necessary to reject the proposition that the absence of an operating Markload, despite being the subject of a misrepresentation to Leightons by Mr Gillespie as to its condition, meant the crane was inadequately commissioned. In coming to this view I have considered the Markload in isolation. However, it is necessary to also consider it in conjunction with the other particular concerning the graduation of the load gauge. 104 Similarly, features concerning the luff pump have not been demonstrated to have actually caused any exposure to risk. Mr Robinson of Crane Safe noted in his testing of the luff pump that, "Manually overriding the stroker using light finger pressure altered bias plus/minus 30 bar". This, as I understood it, was consistent with Mr Beashel's view about the luff pump bias and pressure setting: that they were matters he was simply able to take into account in his exercise of the manual controls.

105 As to the graduation on the load gauge, I take a different view. The load gauge was in a configuration which was not suited to the crane operating with a boom of some 64 m, because the maximum SWL at flatstick was not capable of being illustrated on the gauge with any precision. Mr Beashel dealt with the matter this way: Q. So if you, for example wanted to be sure that you were not picking up a load of anything more than 1.5 tonnes, how would this gauge help you? A. It would rise near enough to, say, you see the "H" or the "I", the needle would come up around that. So it would give you an approximation. You don't really know.

106 It seems to me that the load gauge, in combination with the radius indicator, was crucial to the safe operation of the crane. The absence of the Markload system in an operating condition and the inability of the load gauge to give a true indication of weight under 2 tonnes at high speed, or 4 tonnes at low speed, means that when operating at flatstick, there was no facility in the crane to give any indication to Mr Lowther of the residual weight of his load. Sentencing proceedings

74 In the sentencing proceedings Schmidt J made a number of relevant findings: · The kibble striking the scaffold on 28 November and the collapse of the crane on 29 November and the risks to safety that these incidents gave rise to, were not the result of the inadequate gauge upon which these convictions rested [68].

· There were various people working on the site, employees and non-employees, erecting concrete columns, with the crane being used with a kibble to lift and pour the concrete. The crane was operating with heavy loads and that operation was not safe, in the context of the way in which the gauge was calibrated [71].

· Given the weight in question on both 28 and 29 November, the gauge accurately showed the weight of the loads being carried [74].

· Peterson J acquitted the defendant of the charge relating to the Markload system when considering the charge that the crane was inadequately commissioned. The absence of the Markload system in an operating condition was, however, accepted as relevant to the charges that here arise for penalty [75].

· The risk in question must be assessed as that flowing naturally from the difficulty identified with the gauge, Peterson J having found that it was crucial to the safe operation of the crane in the absence of an operating Markload system, but there being no evidence that this difficulty had given rise to what occurred on 28 or 29 November [76].

· The collapse of the crane resulted from the deficiencies identified by the experts in relation to design, in respect of which the defendant was acquitted of responsibility. The events of 28 November resulted from the problem identified in the system of work implemented by Leighton [76].

· The offences in question were serious, given the work being undertaken, although they would have been more serious, had it been established that the problems with the load gauge had contributed to what occurred on either 28 or 29 November. That this risk was foreseeable cannot be doubted. In a context where the defendant wrongly certified that the Markload system was operating, a gauge capable of giving a true indication of the events should plainly have been provided. There was no suggestion that there was any difficulty in such a gauge being used [79].

· In the case of multiple offences such as this, the totality principle requires that an appropriate penalty be set for each offence and then questions of cumulation, concurrence and totality be considered. The Court must also determine whether the sum of the separate sentences properly reflects the totality of the criminality involved [82].

· The fact that all of the offences arose out of the one course of conduct must be considered. That s 15 and s 16 of the Act involve different offences must also not be overlooked [83].

· In the case of the first offence brought under s 15 in respect of 28 November, where the maximum penalty is $500,000 a penalty of $80,000 must be fixed and in the remaining three, where the maximum is $750,000 a penalty of $90,000 must flow, making a total of $350,000 [84].

· The principle of totality must then be applied so as to arrive at an appropriate penalty to reflect the overall criminality. This is assessed as $185,000. That figure must then be reflected in the individual penalties imposed, which is assessed at $71,000 for the first offence and $38,000 for the other three [84].

· The conclusion that much of the evidence called by the prosecution was not relevant to the charge made out was unavoidable. An appropriate exercise of the Court's discretion would not involve costs orders being made against both the defendant and the prosecution. Apportionment must be adopted, if justice is to be achieved. A costs order must be made in favour of the defendant, but on the basis that only 80% of the costs be recoverable from the prosecutor [89]. Grounds of appeal

75 The grounds of appeal were as follows: Sentence 1 Her Honour erred in her findings of fact. In particular her Honour erred in: (a) finding at [74] of her judgment that 'given the weight in question on both 28 and 29 November, the gauge accurately showed the weight of the loads being carried'; (b) finding that it had not 'been established that the problems with the load gauge had contributed to what occurred on either 28 or 29 November' (paragraphs [76] and [79]); and (c) her treatment of Peterson J's findings as to the Markload system. 2 Her Honour erred in respect of parity between the two defendants that she sentenced. The nominal sentences before discounting for totality that she imposed upon the respondent at [84] lacked appropriate parity with the sentence that she imposed upon the co-defendant, and the final total sentence that she imposed upon the respondent after discounting for totality lacked parity. 3 Her Honour erred in her application of the principles of sentencing as set out in Pearce v the Queen (1998) 194 CLR 610. 4 The discount that her Honour allowed the defendant at [84] of her judgment was excessively generous, unsupported by reasons, and not in accordance with established principles as to totality. 5 The total sentence imposed for the four charges upon which the respondent was found liable by Peterson J is manifestly inadequate. Costs 6 Her Honour erred in the application of the accepted principles as to the awarding of costs to parties in criminal proceedings. 7 Her Honour erred in not proceeding upon the basis that the prosecutor was the successful party in the proceedings as a whole. 8 Her Honour erred in her findings as to the conduct of the trial before Peterson J, in particular her rejection of the submissions of the prosecution as to the necessity to lead all the evidence that it did. 9 Her Honour erred in her purported reliance upon and application of the ' concept of apportionment adopted by Walton J in O'Sullivan v Crown in Right of State of New South Wales (Dept of Education and Training) (2003) 128 IR 158' (paragraph 87 of her judgment). 10 Her Honour erred in not making any order for costs in favour of the prosecutor. 11 Her Honour erred in not considering or making any order in relation to the costs of the sentencing proceedings, which costs should, upon the accepted principles, have been awarded to the prosecutor. 76 Significantly, grounds 1(b) and (c) were not pressed. Further, the appellant's case in relation to costs was virtually the same, in terms of principles argued, as that presented in respect of Leighton. 77 The appellant did seek leave to add a new ground 1A to the grounds of appeal: Her Honour's calculation of the fines for the second to fourth offences of $90,000 was in error.

I would grant leave to add ground 1A to the grounds of appeal. Whether gauge accurately showed weight of load 78 As to ground 1(a), the appellant was correct in asserting Schmidt J was wrong in holding at [74] "that given the weight in question on both 28 and 29 November, the gauge accurately showed the weight of the loads being carried (see [82], [29] and [68])". With respect to her Honour, none of the references to the paragraphs in the judgment of Peterson J support Schmidt J's conclusions. For instance, after column 404 was poured on 29 November Peterson J found that the loaded kibble "weighed at least 2.96 and perhaps 3.2 tonnes" [29]. If a load was under 4 tonnes the load would be under the weight for which the load gauge was stamped with calibrations at low speed. In practical terms, this meant that when the crane driver was operating at low speed, the gauge would not give an accurate reading of the weight. 79 Mr Lowther said in a record of interview on 4 February 1997 that he would normally operate the crane at high speed ("speed" referring to the speed at which the hoist is made) but he would change to low speed when lowering the kibble to pour the concrete. There was no indication in the record of interview what speed was used to lift the kibble after a column was poured. Thus, assuming Mr Lowther's record of interview can be taken as the truth, the weight of the loaded kibble when it was hoisted up from behind the concrete truck on 29 November was more than four tonnes (if the kibble weighed approximately three tonnes after column 404 was poured and 0.8 of a cubic metre was poured into column 404 weighing 1.92 tonnes, the loaded kibble must have initially weighed more than four tonnes), which was lifted at high speed. The load gauge, in those circumstances, would have given an accurate reading. However, if after pouring the concrete in column 404 the kibble was hoisted at low speed, the load gauge would not have given the driver an accurate reading of the residual weight because it would have been less than four tonnes. It was this type of situation that led Peterson J to find at [106]: 106 It seems to me that the load gauge, in combination with the radius indicator, was crucial to the safe operation of the crane. The absence of the Markload system in an operating condition and the inability of the load gauge to give a true indication of weight under 2 tonnes at high speed, or 4 tonnes at low speed, means that when operating at flatstick, there was no facility in the crane to give any indication to Mr Lowther of the residual weight of his load. 80 Not only was it uncertain as to what speed the crane was operating at given the scenario described above but also Mr Lowther was in no fit medical condition to give evidence and he was released from his summons. Consequently, his statements about the speed at which the crane was operated on 28 and 29 November could not be tested. It was not open to Schmidt J on the evidence to make a positive finding "that given the weight in question on both 28 and 29 November, the gauge accurately showed the weight of the loads being carried". 81 The implications of this error on the part of the trial judge, however, are not great. Peterson J held that the deficiencies in the load gauge did not contribute to the collapse of the crane and the deaths and injuries that followed. There was a consensus amongst the expert witnesses that the use of the crane at its rated load was capable of causing the crane to collapse: See liability judgment at [58]. Peterson J found that the application of the load beyond the nominal rated load at the time of the collapse made a contribution to the collapse ([59]). His Honour also found that the responsibly for ensuring the absence of an overload was that of the crane operator ([87]). Further, Mr Lowther was aware that the crane's SWL at a 62-metre radius was 1.5 tonne. This admission by Mr Lowther indicates that he must have been aware of an overload occurring on 28 and 29 November. 82 What this amounts to is that regardless of the fact the load gauge may not have given an accurate reading of the weight of the load on either 28 or 29 November, the crane driver knew that the crane was overloaded at the radius it was working. Thus, any risk that may have arisen because the driver may not have been able to work out the weight of the load from the load gauge (at some point or points of the crane's operation) was overtaken by the fact the crane driver knew the crane was overloaded in any event. Nevertheless, as Peterson J found the absence of a facility in the crane to give any indication to Mr Lowther of the residual weight of his load gave rise to a risk and, consequently, the charges in IRC00/241, 243, 244 and 246 were found to have been made out in respect of the particulars of a failure involving the erection and commissioning of the crane in that the graduation shown on the load gauge was not adequate for the work to be performed. 83 The significance of the fact that the gauge may not have accurately reflected the weight of the crane's load is that even if the crane was not overloaded, and in the absence of the Markload device, the inability of the gauge to give an accurate indication of weight under 2 tonnes at high speed or 4 tonnes at low speed meant that when the crane was operating it may not have given an accurate reading of the weight, particularly when the crane was operating at flatstick and at the extreme radius, thereby creating a risk. There is no doubt, however, that Schmidt J was alive to this risk: See [75]-[79]. Whether calculation of fines for second to fourth offences in error 84 Ground 1A of the appeal asserted that Schmidt J's calculation of the fines for the second to fourth offences of $90,000 was in error. In this respect it was contended by the appellant that her Honour began with a starting point of 16 per cent of $500,000 (i.e., $80,000) for the first offence. Further, that her Honour then attempted to apply the same ratio to the maximum for the subsequent offences; this being evidenced by her Honour's words at [84]: "where the maximum is $750,000 a penalty of $90,000 must flow". Mr Agius submitted that even if 16 per cent of the maximum was appropriate for the first offence and 16 per cent was appropriate for each subsequent offence, 16 per cent of $750,000 is $120,000 and not $90,000. It was submitted $90,000 was a miscalculation and the figure ought to have been $120,000. For the second and subsequent offences, which on her Honour's reasoning ought to have been $120,000, the total penalty should have been $440,000 ($80,000 plus ($120,000 x 3) = $440,000).

85 It was submitted it followed that even if her Honour's approach was correct and the starting point of $80,000 was appropriate (something the appellant contested), the fine before consideration was given to what her Honour described as totality, ought to have been $440,000 and not $350,000. Further, if the appropriate figure after consideration of totality was $185,000, as her Honour found (i.e., approximately 52 per cent of $350,000), then given the correct starting point should have been $440,000, the appropriate final penalty would have been $228,800. 86 It is not readily apparent what Schmidt J meant when she said "where the maximum is $750,000 a penalty of $90,000 must flow". If the appellant is correct on its interpretation, that is, that her Honour was seeking to apply the same ratio to the subsequent offences as she had applied to the first offence, then there was clearly a miscalculation. But, of course, there was no requirement on her Honour to apply the same ratio and it would have been open to her, having considered all of the relevant matters, to arrive at a conclusion that $90,000 was an appropriate penalty for the second and subsequent offences. 87 In any event, her Honour erred in determining that the maximum penalty for three of the four offences was $750,000. In Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61, the Full Bench considered the application of s 51A of the Occupational Health and Safety Act in circumstances where the corporate defendant had been found guilty of two offences under s 15(1) of the Act. The charges arose out of the same factual matrix over the same period and the charges were effectively prosecuted as one. The Full Bench held at [73]-[74]: The two offences should be considered together as, in our view, consistent with authority, an increased penalty for a second or subsequent offence only applies if there has been a conviction for the first offence before the commission of the subsequent offence. 74 In our view, each respondent for the purposes of sentencing in this matter, therefore, should not be treated as a "repeat offender". It follows that there is no previous conviction to trigger the operation of s 51A of the Occupational Health & Safety Act in respect of the corporate respondent or the personal respondent. 88 The circumstances in the present proceedings are somewhat different to those that existed in Powercoal (No. 3). In that case the corporate defendant was found guilty of two offences, both under s 15(1) of the Act arising out of the same factual matrix. In the present case, the appellant was found guilty of four offences, two under s 15(1) that occurred on consecutive days and two under s 16(1), also occurring on consecutive days. 89 Notwithstanding the differences and notwithstanding that the four offences were not committed simultaneously (two being committed simultaneously on 28 November and two being committed simultaneously on 29 November), I consider that the increased penalty for three of the four offences applied by Schmidt J was, with respect, incorrect. On the approach taken by the Full Bench in Powercoal (No 3), the maximum penalty for each of the four offences was $500,000. In this regard, I agree with the observation by Schmidt J in her sentencing judgment at [59]: It is apparent that each of these failures, while involving discrete breaches, all arose out of one course of conduct, a matter relevant to determining penalty. 90 Assuming for the moment that each of the offences should attract the same penalty and that the appropriate penalty is $80,000, the total penalty should have been $320,000 and not $350,000 as determined by Schmidt J. If I were to take the same approach as Schmidt J to the issue of totality, the penalty to be imposed on the respondent would have been of the order of $166,000. Parity 91 The appellant challenged the starting point for the calculation of the fines against Lindores as being too low when compared to the fine imposed upon Leighton having regard to the risks involved in each case. It was submitted that her Honour failed to take account of the continuing nature and the gravity of the risks to safety presented by the absence of any gauge or device by which a crane driver might be informed of the accurate weight of a load (below 2 and 4 tonnes) if the crane was to operate within its published SWL. This was especially so, it was submitted, in circumstances where the crane was so large and its boom was so long as to cover the whole of the site. Senior counsel submitted it was foreseeable that the crane would have to operate at flat stick from time to time on the site on the two days in question.

92 It was further submitted the equipment in the crane was the responsibility of Lindores; Leighton had relied upon Lindores' expertise and Lindores' certification as to the crane's suitability for the tasks at hand. Leighton was responsible for the system of work that created the risk on 28 November, but that system was one dependent upon the safe operation of the crane. It was submitted the safe operation of the crane was a constant throughout the life of the construction and a critical component of that, the ability of a driver to be aware of the weight of his load under 2 and 4 tonnes, was found to be critical. 93 In comparing the fine imposed on Leighton ($130,000 for one offence) to that imposed on Lindores ($185,000 for four offences) it was submitted Leighton had the benefit of a number of subjective considerations that were available in its favour, including: an expression of contrition and regret; it had well developed safety systems at the time of its one offence; it had won awards for its approach to safety; and, had implemented a number of additional approaches to safety. Lindores had nothing to offer on the question of subjective features in amelioration of penalty. It was submitted this was yet another ground for distinguishing between the defendants, albeit that the risks to safety were different, yet this dichotomy was not apparently taken into account by her Honour. 94 The appellant also submitted Schmidt J erred in reducing the initial fine of $350,000 to $185,000 after applying the totality principle. Moreover, it was submitted her Honour gave no reasons for doing so. It was submitted a discount or adjustment of 48 per cent was not warranted. Reference was made to Pearce v The Queen (1998) 194 CLR 610, which it was said highlighted the need to identify common elements in offences at the time of sentencing and of the need to avoid double punishment. This is not achieved by a global discount or reduction; an analytical process is required. 95 Senior counsel submitted that when the elements of the offences are examined it identifies two separate classes of persons to whom duties were owed on each day, albeit that the failure to have a proper gauge was common to both. The breach occurred over two days, and the Court was entitled to take into account the continuing nature of the failure to have had installed an appropriate gauge. As well, it was submitted, the Court ought to have taken into account the fact that these offences occurred against the background that Lindores had falsely certified the presence of a working Markload system. Not only was this system not available but also the false certification combined with the absence of an appropriate gauge deprived Leighton of an opportunity to satisfy itself of the adequacy of safeguards to ensure that a driver did not lift over 1.5 tonnes at flat stick. 96 In breaking down the total fine of $185,000 into fines of $71,000 and $38,000 times 3, it was submitted that her Honour fell into an error that exemplified the difficulty involved in the approach of applying a global discount without an analysis of elements of commonality in the offences. The offences numbered 2-4 in the result carried fines of $38,000, that is, $33,000 less than the first offence even though the applicable maximum was 50 per cent more for those offences. This illogicality highlighted the flaws in her Honour's approach, it was submitted. Senior counsel submitted the proper approach was that set out in WorkCover Authority of New South Wales (Insp. Mansell) v Jian Chen and Obing Pty Ltd (2004) 137 IR 33 at [64]-[67]. Consideration of appropriate penalty

97 In considering the gravity of the offences I would observe, firstly, that Lindores' culpability cannot be measured against the benchmark of the crane's collapse. The deficiencies in the load gauge were found not to have any connection with that collapse. The respondent's culpability arose from a failure involving the erection and commissioning of the crane but only to the extent that the graduations shown on the load gauge were not adequate for the work to be performed. 98 Nonetheless, it would have been important for the crane driver to know whether the weight of the load was under 2 tonnes at high speed or 4 tonnes at low speed. It was foreseeable that the crane would be required to operate at flatstick and that it may be required to carry loads at the extreme radius where the driver could not obtain an accurate indication of the weight of the load if the weight of the load was under 2 tonnes at high speed or 4 tonnes at low speed. Moreover, it was open to Lindores to install a Markload device, which would have been a necessary step to take if Lindores was to ensure the safe operation of the crane given the deficiencies in the load gauge.

99 In considering whether Schmidt J erred as to her assessment of the amount of appropriate penalty for what her Honour described as Lindores' first offence, I note that Leighton was fined $130,000 for one offence under s 16 of the Act. In that case the offence involved a failure to provide a safe system of work in circumstances where, on 28 November, the kibble containing concrete bounced against scaffolding upon which a number of workers were standing. I consider the gravity of the two offences was of a similar order and that the initial fine of $80,000 for Lindores' first offence was, with respect, too low by comparison. 100 If one accepts that the gravity of the other three offences by Lindores was of the same degree as the first, and I consider that must be the case given the failure and the nature of the risk was similar in each offence, the penalties should be the same. In relation to 28 November, the offences were committed under s 15 and s 16 of the Act. No distinction can be drawn in respect of the seriousness of the offences on that day; the only difference between the offences was that they related to different groups of workers. In relation to 29 November, the offences were again under s 15 and s 16 and the failures were identical to the previous day. I do not consider it would be appropriate to increase the amount of penalty for the offences on 29 November merely because they had also been committed on 28 November. If the risk associated with the deficient gauge had been brought to Lindores' attention after the offences had been committed on 28 November and before they were again committed on 29 November and Lindores had failed to take any action to prevent the risk re-occurring, there would have been a case for higher penalties to be imposed in relation to the 29 November offences. But that was not the case. 101 The totality principle arises for consideration. The principle was described by Kirby J in Postiglione v The Queen (1997) 189 CLR 295 at [341] in the following way: But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment ... it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. 102 As it was observed in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 at [76], the correct approach to applying the principle of totality was set out in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 in the following way: [36] This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce [ v The Queen (1998) 194 CLR 610] and Mill [ v The Queen (1988) 166 CLR 59]. [37] We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. [38] In accordance with Pearce , we must first consider the appropriate penalty for each offence, assessed separately. 103 In Pearce, the majority (McHugh, Hayne and Callinan JJ), stated at [45]: To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [emphasis added].

104 As it may be seen, there was a very significant degree of overlap between the elements of the four offences in respect of which Lindores was found guilty. The only distinctions that can be made are that two of the offences relate to employees of the defendant and the other two relate to non-employees, and two of the offences occurred on 28 November and two on 29 November. The cumulative total of the four offences would be of the order of $520,000 (4 x $130,000). Such a penalty would not properly reflect the totality of the criminality involved.

105 Despite the errors in the approach taken by Schmidt J to the sentencing of the respondent, I consider that the penalty of $185,000 imposed by her Honour was within the range of penalty appropriately reflecting the overall criminality of the respondent. Consequently, I do not propose to interfere with that penalty except that it should be divided equally amongst the four offences, giving a penalty of $46,250 for each offence. Costs

106 As I noted earlier, Lindores was charged with nine offences. I have set out a summary of the charges in the table below to better show how they relate to each other and also the relevant dates: 28 November 1996 29 November 1996 Matter No SecFailureMatter No IRC00/ IRC00/SecFailure 15(1)Fail to ensure safety of Lowther and Perrett in that: 248 failed to provide adequate supervision 23915(1)Fail to ensure safety of Lowther and Perrett in that: failed to ensure they were adequately supervised N/A N/AN/A24015(1)Fail to ensure safety of Lowther and Perrett in that: failed to provide them with adequate training and instruction 15(1)Fail to ensure safety of Lowther and Perrett in that: failed to ensure plant safe and free from risk. 241 In particular; failed to ensure crane adequately erected and commissioned24315(1)Fail to ensure safety of Lowther and Perrett in that: failed to ensure crane adequately erected and commissioned 15(1)Fail to ensure safety of Lowther and Perrett in that: 242 failed to make enquiries re increasing length of boom24515(1)Fail to ensure safety of Lowther and Perrett in that: failed to make enquiries prior to lengthening boom 16(1)Fail to ensure safety of McLaren, Gee & Master in that: failed to make enquiries before increasing boom length; failed to provide adequate supervision; failed to provide adequate training and instruction; failed to provide a work method statement; 246 failed to ensure crane adequately erected and commissioned24416(1)Fail to ensure safety of Perrett, Taula and Master in that: failed to make enquiries prior to increasing length of boom; failed to provide adequate supervision; failed to provide adequate training and instruction; failed to provide a work method statement; failed to ensure crane adequately erected and commissioned

107 Of the charges brought by the appellant against Lindores, five were dismissed and the appellant proved only one aspect of the remaining four charges in Matters IRC00/241, 243, 244 and 246 of failing to ensure that the crane was adequately erected and commissioned, namely, that the load gauge indicator had insufficient graduations on its face. Peterson J rejected the other aspects of the charge of failing to adequately erect and commission the crane. Those other aspects were: (i) The Markload limiting system was inoperable; (ii) The luff pump bias was in a downward direction; and, (iii) The pressure setting for the luff pump was at a lower level than that recommended by the manufacturer. 108 Notwithstanding that only one aspect of each of four charges was made out against Lindores, the fact is that Lindores was found guilty of four charges out of the nine pressed against it. In those circumstances it is impossible to sustain an outcome, in so far as costs are concerned, that the appellant shall pay 80 per cent of Lindore's costs, especially when it is taken into account that the appellant was successful in the sentencing proceedings of having a penalty of $185,000 imposed on the respondent. I consider an appropriate costs order in this matter is that in relation to the first instance proceedings each party shall pay its own costs. 109 I would make the following orders: Matter No IRC6072 of 2004 - Leighton Contractors Pty Limited (1) The appeal is dismissed. (2) The appellant shall pay the respondent's costs of the appeal in an amount as agreed or, failing agreement, as assessed. Matter No IRC6274 of 2004 - Lindores Crane & Rigging (Aust) Pty Ltd (1) The appeal is upheld to the extent determined in this judgment. (2) The judgment and orders of Schmidt J, to the extent they relate to the costs of proceedings at first instance are set aside. (3) Each party shall pay its own costs in relation to the proceedings at first instance. (4) Each party shall pay its own costs of the appeal. _____________________________________

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

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cases Cited (21)

Cited By (4)