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[2003] NSWIRComm 240
mixed. Litchfield Roofing Pty Ltd convicted and fined $140,000 (moiety to prosecutor); J & T Michilis Pty Ltd convicted and fined $84,000 (moiety to prosecutor); Joseph Andrew Litchfield discharged without...
A mobile scaffold toppled into 33,000V overhead powerlines at a construction site, killing one worker and injuring three. Litchfield Roofing (subcontractor) and Michilis (head contractor) pleaded guilty to OH&S offences. The Court found the breach objectively serious because the need for firm ground and other precautions was identified but not complied with. Corporate Litchfield was fined $140,000 and Michilis $84,000 after discounts for early plea and mitigation. Director Joseph Litchfield, who had prepared the Safe Work Method and delegated site supervision to an experienced foreman, was discharged without conviction under s10 of the Crimes (Sentencing Procedure) Act 1999. Defendants ordered to pay prosecutor's costs of earlier withdrawn motions (paras [36], [55], [83], [94]-[96], [92]).
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On 15 December 1997 at a construction site at 6 Heron Road, Kooragang Island, an 8.9 metre high mobile aluminium scaffold being used by employees of Litchfield Roofing Pty Ltd sank into loose sandy fill while being moved and tilted outwards toward adjacent overhead electrical powerlines energised at 33,000 volts. The scaffold either contacted or came into dangerous proximity with the lines; electrical current passed through the scaffold and the bodies of workmen. Mr Gavin Shearer was fatally electrocuted; three co-workers (William Grist, Damien Mowle and Todd Gibson) suffered serious burns and other injuries (paras [1], [8]-[13]).
Litchfield Roofing had been sub-contracted by J & T Michilis Pty Ltd (Michilis) to undertake wall cladding. Litchfield had prepared a Safe Work Method Statement identifying a need for firm, level ground (three metres around the building) for safe use and movement of mobile scaffolding, and other control measures (outriggers, brakes, tying scaffold to building, plywood under wheels). Despite that plan and employees signing the document on the day, the actual site conditions near the perimeter fencing were loose, sandy fill; the plywood plates used were small and rudimentary; the mobile scaffold was moved across unstable ground and tipped, causing the fatality and injuries (paras [18]-[21], [23], [28]-[31], [75]).
Proceedings began in 1999. All three defendants pleaded guilty to the respective charges on 26 September 2002. The industrial court had to determine sentencing for corporate defendants Litchfield Roofing and Michilis, the application of s10 of the Crimes (Sentencing Procedure) Act 1999 in relation to the personal defendant (director Joseph Litchfield), and costs of interlocutory motions filed and withdrawn during the procedural history (paras [2]-[4], [50]-[56], [88]-[92]). The outcome: corporate defendants were convicted and fined (Litchfield $140,000; Michilis $84,000), the director was discharged without conviction and penalty under s10, and defendants were ordered to pay costs of the withdrawn motions to be assessed and limited to one set shared equally (paras [94]-[96], [92]).
Core legal standard: the court applied established principles that sentencing for OH&S offences must reflect the objective seriousness of the offence, measured by the nature and quality of the breach and whether an obvious or foreseeable risk to safety existed against which appropriate, feasible measures were not taken (citing Lawrenson and authorities) (para [36]). The judge found that although a Safe Work Method Statement existed, the central safety prerequisite, firm level ground for a defined distance, was not provided in a manner that ensured safe movement of the mobile scaffold. The court emphasised that identifying a risk in a plan implies responsibility to ensure it is implemented, including during moving operations, and that the absence of stability posed a readily foreseeable risk to safety even if the precise manner of injury was not predicted (paras [18], [19], [23], [28]-[31], [38]-[41]).
On culpability, the court made a comparative assessment: Litchfield (the employer who devised the method) bore primary responsibility for insisting on compliance with its own risk assessment; Michilis bore supervisory duties but the primary onus for ensuring the specified firm ground rested with Litchfield. Both, however, failed adequately to identify or control the particular danger presented by moving the scaffold near energised lines (paras [30]-[34], [42]).
Sentencing applied the usual considerations: objective seriousness, general and specific deterrence, remedial steps taken after the event, lack of prior convictions and cooperation. The court quantified a notional starting point for each corporate defendant ($200,000 for Litchfield; $120,000 for Michilis), applied a 20% discount for an early plea (on the basis that pleas were tendered at the first reasonable opportunity after procedural issues were resolved), and a further 10% discount for mitigation and cooperation, resulting in fines of $140,000 and $84,000 respectively (paras [35], [43]-[46], [55]-[56], [94]-[96]).
For the personal defendant, the court carefully considered the exceptional discretionary power in s10 of the Crimes (Sentencing Procedure) Act 1999 to discharge without conviction. The judge noted authorities cautioning that s10 relief in OH&S contexts is extraordinary and must be rigorously tested (paras [59]-[63]). Applying the test, Staunton J accepted the director had a hands-on role in preparing the Safe Work Method, had delegated day-to-day supervision to an experienced foreman who had signed the plan, had no prior convictions, possessed strong character attestations and had been profoundly affected by the accident. On balance the court concluded that it was appropriate to discharge Mr Litchfield without conviction and penalty (paras [65]-[87], [83]). The court expressly did so as an exceptional exercise of discretion grounded in the particular facts.
Finally, on costs of the interlocutory motions that had been pursued and withdrawn, the court followed Full Bench guidance in Lucon (No 2), ordering the defendants to pay the prosecutor's costs limited to one set and to be shared equally (paras [90]-[92]).
Before: The court relied on established Industrial Relations Commission and Full Bench authorities setting the tests for objective seriousness of OH&S offences, the roles of general and specific deterrence in sentencing (Capral, Lawrenson, earlier Full Bench decisions), and previous reluctance to apply the then s556A / now s10 to significant OH&S breaches except in exceptional circumstances (Profab, Ecolab, Waugh authorities referenced at paras [59]-[63]). The Dawson decision provided precedent for assessing when employer conduct did not causally connect to the accident where an adequate system was in place and failures lay in supervision (para [78], citing State Rail Authority v Dawson).
After: This judgment applies these principles to a fact pattern involving movement of tall mobile scaffolding in proximity to high-voltage lines. It reaffirms (1) the court's willingness to quantify early-plea and mitigation discounts where pleas were entered at the first reasonable opportunity (para [55]), (2) the careful, exceptional use of s10 relief for a director who had genuinely delegated supervision and taken preparatory steps (paras [82]-[83]), and (3) the Full Bench approach to costs of withdrawn motions (paras [90]-[92]). Practitioners should see this decision as confirming both the gravity of failing to implement identified safety measures and the limited circumstances in which a personal defendant may be spared conviction.
Para [36] (quotation of Lawrenson principle): "It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken." Plain English: If you identify a clear hazard and feasible precautions exist but you do not take them, the offence is objectively serious.
Paras [18], [19], [28]-[31]: The Safe Work Method required firm level ground for safe movement; photographs and inspection showed this was not present and the plywood plates were inadequate. Plain English: The plan said the ground must be stable for moving the scaffold; in practice it was loose sand and the temporary plates provided were too small; that is why the scaffold sank and tipped.
Para [55]: "Defendants have entered their pleas at the first reasonable opportunity." Plain English: Even though the defendants had earlier filed procedural motions, the court accepted their guilty pleas were timely once the court's directions and substitutions were resolved, so they got an early-plea discount.
Paras [59]-[63]: s10 relief must be rigorously tested and is exceptional. Plain English: Discharging a person without conviction in OH&S prosecutions is rare and requires strong, specific reasons.
Para [83]: Application of s10 to Mr Litchfield and discharge without conviction. Plain English: Given the director had prepared the safety plan, delegated to an experienced foreman who had signed it, had no prior record, and his personal circumstances, the judge exercised the exceptional power to avoid entering a criminal conviction against him.
An employer prepares a written Safe Work Method Statement identifying a significant hazard and specific controls (e.g., need for firm ground for scaffold movement), but fails to ensure those controls are implemented in practice, resulting in serious injury or death. This case confirms the employer will be at risk of conviction and significant penalty where the breach is objectively serious and foreseeable (paras [18]-[21], [36]-[41], [94]-[96]).
A head contractor with supervisory responsibilities who fails to ensure subcontractors implement their own identified safety controls may also face conviction and penalty; however, the court will proportionate culpability between subcontractor and head contractor based on relative roles in identification and enforcement of the safety requirement (paras [30]-[34], [42]).
A director who genuinely prepared safety systems, delegated supervision to an appropriately qualified foreman who signed the plan, had no prior convictions, and can produce cogent evidence of character and extenuating circumstances may, in exceptional cases, be discharged under s10 without conviction. This triggers careful judicial fact-finding about delegation, presence, and reliance on supervisors (paras [65]-[83]).
This decision itself relies on and applies Full Bench authority (Capral, Lucon, Lawrenson, Profab, Ecolab, Dawson). It confirms a consistent approach in the Industrial Relations Commission: (a) objective seriousness test; (b) quantified discounts for early plea and cooperation when pleas are entered at the first reasonable opportunity; (c) exceptional and rigorously tested application of s10 relief to personal defendants; and (d) costs consequences for pursuing procedural motions unsuccessfully (paras [36], [43]-[56], [59]-[63], [90]-[92]). Later sentencing decisions in the Commission will treat this judgment as an example of applying those principles to a scaffolding-electrocution fact pattern. Practitioners should cite it when arguing for mitigation for personal defendants who can show good faith delegation and specific extenuating circumstances, while recognising the exceptional nature of such relief.
Scope of delegation and supervision: How much and what quality of delegation will suffice for a director to obtain s10 relief where an identified safety requirement is not implemented? Staunton J found delegation to an experienced foreman who had signed the plan persuasive (paras [72]-[77], [83]), but the boundary between acceptable delegation and culpable abdication remains fact-dependent.
Quantification methodology: The court used notional starting figures and applied fixed percentage discounts (20% early plea; 10% mitigation). While practical, there is no rigid rule on percentages; future courts may vary quantum depending on seriousness and mitigating features.
Interaction of remedial steps and penalty: While post-incident remedial compliance (relocation of powerlines; revised method statements) was considered mitigating, the extent to which prompt and comprehensive remedial action reduces penalty remains discretionary (paras [27]-[28], [40]).
Costs for procedural motions: Although Lucon (No 2) and this decision order defendants to pay costs for unsuccessful interlocutory challenges to initiating process, the line between legitimate, arguable challenges (which may be pursued without costs penalty) and those warranting costs remains fact-specific (paras [50]-[56], [90]-[92]).
Practitioners should analyse these open points against the specific factual matrix of subsequent cases and present cogent evidence of delegation, training, compliance culture and immediate remedial conduct when seeking mitigation or s10 relief.
Industrial Relations Commission of New South Wales in Court Session
CITATION : WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; J & T Michilis Pty Ltd (formerly known as Michilis Pty Ltd) (ACN: 073 407 397) [2003] NSWIRComm 240 PROSECUTOR: Inspector Michael Dall
DEFENDANTS: PARTIES : Litchfield Roofing Pty Ltd Joseph Andrew Litchfield J & T Michilis Pty Ltd (formerly known as Michilis Pty Ltd) (ACN: 073 407 397)
FILE NUMBER: IRC 7014, 7015 and 7016 of 1999 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - no prior convictions - objective seriousness of the offence - relative culpability of the corporate defendants - clear and foreseeable risk to safety - general and specific deterrence - issue as to whether plea entered at first reasonable opportunity - held on the facts and circumstances in these matters it had been - application of s10 of Crimes (Sentencing Procedure) Act 1999 to personal defendants - reasons for applying provisions of the section - personal defendant discharged without conviction or penalty - corporate defendants convicted - penalty imposed - notices of motion - defendants to pay prosecutor's costs of motion. Occupational Health and Safety Act 1983 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 Crimes (Sentencing Procedure) Act 1999 (NSW)
Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, Full Bench, CT92/1041, 10 March 1994) Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Benbow v Converquip Pty Limited (2001) NSWIR Comm 85 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 232 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Maugher) (2000) 100 IR 156 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority (New South Wales) v Ecolab Pty Ltd (1999) 90 IR 413 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd (2001) 110 IR 469
HEARING DATES: 05/14/2003 DATE OF JUDGMENT: 08/12/2003
PROSECUTION: Mr P Skinner of Counsel SOLICITORS: Ms H Cameron Criminal Law Practice Group, WorkCover Authority of NSW
DEFENDANT: (Litchfield Roofing Pty Ltd) Mr J Gallagher SC SOLICITORS: Mr M Nolan Hewitt's Commercial Lawyers LEGAL REPRESENTATIVES: DEFENDANT: (Joseph Andrew Litchfield) Mr J Gallagher SC SOLICITORS: Mr M Nolan Hewitt's Commercial Lawyers
DEFENDANT: (J & T Michilis Pty Ltd) Mr B Hodgkinson SC SOLICITORS: Mr P Collins Peter Collins and Associates
JUDGMENT: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 12/8/2003
Matter No IRC 7014/99 WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd
Prosecution pursuant to s(51) and s49(4) of the Occupational Health and Safety Act 1983
Matter No IRC 7016/99 WorkCover Authority of New South Wales (Inspector Dall) v Joseph Andrew Litchfield
Prosecution pursuant to s50(1) and s49(4) of the Occupational Health and Safety Act 1983
Matter No IRC 7015/99 WorkCover Authority of New South Wales (Inspector Dall) v J & T Michilis Pty Ltd (formerly known as Michilis Pty Ltd) (ACN: 073 407 397)
Prosecution pursuant to s16(1) and s49(4) of the Occupational Health and Safety Act 1983 JUDGMENT NSWIR Comm240
1 The matters before me concern prosecutions arising out of an accident that occurred on a construction site at No 6 Heron Road, Kooragang Island near Newcastle on 15 December 1997. In that accident Mr Gavin Shearer received fatal electrical shock injuries and three other workmen received burns and other electric shock injuries.
2 As a result of that accident the three defendants were charged with offences arising under ss15(1), 16(1) and 50(1) of the Occupational Health and Safety Act 1983 (the Act). The respective defendants entered a plea of guilty to all three offences on 26 September 2002.
3 These offence charges have something of a history as the matter numbers attest, having initially commenced in 1999. There are two issues arising from that history that will be dealt with in due course in this judgment. The first is whether the defendants have entered a plea at the first reasonable opportunity and are entitled to a discount on that basis. The second is the issue of costs of notices of motion filed in November 2001 and withdrawn by leave before Walton J in September 2002. The issue of the costs of those motions was reserved and, following submissions by the parties, is to be determined as part of this judgment.
IRC Matter No 7014/1999 The offence alleged under s15(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Gavin Shearer, William Grist, Damien Mowle and Todd Gibson, in undertaking wall cladding work upon the said building under construction. The particulars of the charge are: a) The defendant employed a number of personnel at the said construction site. b) The defendant had been sub-contracted by Michilis Pty Ltd to undertake wall-cladding with metal sheeting of the said building under construction. c) The defendant failed to provide systems of work for the cladding on the said walls that were safe and without risk to health. d) The defendant failed to make arrangements for the use of plant, to wit, mobile scaffolding to ensure that such mobile scaffolding could not contact the live 33,000 volt electrical cables. e) The defendant failed to provide plant, to wit, fixed scaffolding to allow for the safe application of metal sheeting to the external wall of the said building under construction. f) The defendant failed to provide such training and instruction as may be necessary for employees undertaking the application of metal sheeting to the external wall of the said building under construction, adjacent to live electrical power lines. g) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries. IRC Matter No 7016/1999 The offence alleged under s50(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site, at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being a director of a corporation, to wit, Litchfield Roofing Pty Ltd, which contravened whether by act or omission, s15(1) of the Occupational Health and Safety Act 1983 , at that place and date, in that it being an employer, it failed to ensure the health, safety and welfare at work of all its employees and in particular, Gavin Shearer, William Grist, Damien Mowle and Todd Gibson, whilst undertaking wall-cladding work upon the said building under construction, is deemed to have contravened the same section pursuant to s50(1) of the Occupational Health and Safety Act 1983, in that: a) Litchfield Roofing Pty Ltd was a corporation, duly incorporated. b) Joseph Andrew Litchfield, the defendant, was a director of a corporation, to wit, Litchfield Roofing Pty Ltd. c) Litchfield Roofing Pty Ltd employed a number of personnel at the said construction site. d) Litchfield Roofing Pty Ltd had contracted to Michilis Pty Ltd to undertake the wall-cladding with metal sheeting of the said building under construction. e) Litchfield Roofing Pty Ltd failed to provide systems of work for the cladding on the said walls that were safe and without risk to health. f) Litchfield Roofing Pty Ltd failed to make arrangements for the use of plant, to wit, mobile scaffolding to ensure that such mobile scaffolding could not contact the live 33,000 volt electrical cables. g) Litchfield Roofing Pty Ltd failed to provide plant, to wit, fixed scaffolding to allow for the safe application of metal sheeting to the external wall of the said building under construction. h) Litchfield Roofing Pty Ltd failed to provide such training and instruction as may be necessary for employees undertaking the application of metal sheeting to the external wall of the said building under construction, adjacent to live electrical power lines. i) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries. IRC Matter No 7015/1999 The offence alleged under s16(1) of the Occupational Health and Safety Act 1983 states that: On 15 December 1997, at a building construction site at 6 Heron Road, Kooragang Island, in the State of New South Wales, the defendant, being an employer, failed to ensure that persons not in its employment, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. The particulars of the charge are: a) The defendant sub-contracted Litchfield Roofing Pty Ltd to undertake the cladding of the external walls of the said building with metal sheeting. b) The defendant employed personnel at the said construction site. c) The defendant failed to supervise the activities of sub-contractors undertaking the cladding of external walls with metal sheeting at the said site. d) The defendant failed to identify the dangers of persons working with mobile scaffolding in close proximity to overhead power lines energised to 33,000 volts. e) The defendant failed to ensure that adequate plant, in particular scaffolding, was utilised by men undertaking the cladding work of the external wall on the said building under construction to ensure scaffolding could not topple and contact the live electrical cables. f) As a result of the said failures, Gavin Shearer suffered fatal injuries and Damien Mowle, Todd Gibson and William Grist suffered injuries.
5 These proceedings were heard together because the offences charged arise from the same incident and rely, in many respects, on the same risks to safety as particularised. The facts and circumstances giving rise to the respective offences are detailed in the statement of facts tendered. I was given two statements of facts - one that purported to cover IRC Matter No's 7014/99 and 7016/99 (the Litchfield matters) and one for IRC Matter No 7015/99 (the Michilis matter). A proper reading of the two discloses no relevant difference save only as to some additional paragraphs in the Michilis matter to detail the role of that defendant. I propose only to set out one set of agreed facts denoting where necessary the relevant factual additions.
6 The statement of facts states: 1. At all material times the Prosecutor was an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under Section 48 of the said Act to institute proceedings in the within matter. 2. At all material times the Defendant, J & T Michilis Pty Ltd (formerly Michilis Pty Ltd) [ACN: 073 407 397], was duly incorporated with its registered office situated at 5 Arnhem Close, Gateshead, in the State of New South Wales. 3. At all material times the Defendant, Litchfield Roofing Pty Ltd [ACN: 000 895 741 ] , was duly incorporated with its registered office situated at 34 Bishopgate Street, Wickham, in the State of New South Wales. 4. At all material times, the Defendant, Joseph Andrew Litchfield of 22 Jerdi Close, Charlestown in the State of New South Wales, was a director of Litchfield Roofing Pty Ltd..
a) The Safe Work Method Statement from Litchfield Roofing Pty Ltd was reviewed and amended to state that 'stationary steel scaffold erected by scaffold company in two stages each 36 metres long is to be used as the ground is unsuitable for mobile scaffold on the southern side.' b) The overhead power lines were relocated by Energy Australia to the southern side of Heron Road, thus eliminating all risk of contact with energised overhead power lines for the remaining wall cladding and roof sheeting to be undertaken on the southern side of the building. c) The improvement and prohibition notices were complied with and the remaining work was completed safety without incident. 29. An inquest into the death of Mr Shearer was held on 16 September 1998.
7 In addition to the agreed facts, there was a factual inspection report prepared by Inspector Dall dated 12 July 1999 as well as photographs numbered 1-14. The photographs in particular assisted me in understanding the circumstances surrounding this accident and in particular, that part of the construction site at which the mobile scaffolding fell over and outward towards the overhead power lines.
8 On behalf of the defendant J & T Michilis Pty Ltd (formerly Michilis Pty Ltd) a statement was tendered on behalf of Mr Avgerinos (Tom) Michilis. Mr Michilis is a director of the defendant company and was a director of that company during December 1997. His brother, Dimitrios Michilis, is the other director. For the purposes of this judgment I will refer to this corporate defendant simply as Michilis.
9 On behalf of the Litchfield defendants, the following statements were tendered:
· Mr Joseph Andrew Litchfield. At the time of the accident Mr Litchfield was a Director of the defendant company. He was one of three Directors - the other two being his father and his brother. Since the accident the defendant company has ceased to trade and a new company, Litchfield Roofing Australia Pty Ltd has been formed with Mr Joseph Litchfield and his brother as Directors. Mr Litchfield Snr has retired.
· Mr Damian Mowle. Mr Mowle was an employee of Litchfield Roofing and, at the time of the accident, he was one of the four employees working at the accident site on 15 December 1997. He was seriously injured in the accident and was off work for four months. He returned to work and as I understand his affidavit evidence currently works as a foreman with the new company Litchfield Roofing Australia Pty Ltd.
· Mr Stephen McCarney Mr McCarney is the New South Wales State Secretary of the Plumbers Division of the Construction, Engineering and Plumbers Union (CEPU).
10 As the statement of facts discloses, the defendant Michilis had sub-contracted Litchfield to undertake the cladding of the external wall sections of the building that was being constructed on the site at Heron Road.
11 In his unsworn statement, Mr Avgerinos Michilis states that the defendant company Michilis had sub-contracted the performance of roofing and cladding works to Litchfield for more than 25 years before December 1997. He says: During the whole of that time there had been no indication by Litchfield Roofing Pty Ltd of any deficiency in its safety procedures or the performance of its work. Litchfield Roofing Pty Ltd was a highly respected and highly regarded specialist roof construction contractor. Our organisations worked on many construction sites frequently over the period of our relationship. At no time was there any occurrence that caused me to be concerned regarding that company's understanding of its obligations and compliance with safety requirements and there was no event that caused me to have any doubts regarding that company's appreciation of its obligations.
12 According to the statement of Mr Michilis, on the Friday before Litchfield commenced work on the site, there was a discussion with representatives of Litchfield to which he was a party in which the system of work to undertake the task of cladding the external wall sections of the building were discussed. That discussion was between Mr Michilis, the foreman for Litchfield (presumably Mr Grist) as well as Mr Joseph Litchfield. According to Mr Michilis's statement in the course of that discussion: …apart from the tying of the scaffold to the building being discussed there was also discussion regarding the presence of the electrical cables nearby and the need for there to be caution using and moving the scaffold as a result.
13 On behalf of the Litchfield defendants, the affidavit of Mr Joseph Litchfield deposes as to conversations that he (Mr Litchfield) had with his employees at the worksite in preparation for the work to be performed and subsequently with a Mr Vince Angelozzi. Mr Angelozzi is identified by Mr Litchfield as the site foreman for Michilis.
14 Mr Litchfield makes no mention of any conversation involving Mr Michilis. Mr Litchfield deposes that the purpose of discussions between him and Mr Angelozzi on behalf of Michilis was to raise with Mr Angelozzi certain aspects of the work to be undertaken. In Mr Litchfield's affidavit he details discussions with his employees about the work to be done and the need to be mindful of the power lines on the southern elevation if the cladding they were intending to put in place became difficult to handle if there was any high wind. Mr Litchfield details the conversation with his employees as follows: On 8 December 1997 Bill Grist, Todd Gibson and I, met at the site and had a conversation in which we formulated the work method for the job. The conversation was to the following effect: Grist: I think the roof will need to be sheeted in two sheet lengths and lapped half way down. One length of 16 metres would be too difficult to handle considering the wind, and the road and power lines adjacent. Litchfield: But the client would normally expect the sheeting to be one sheet. However, I think you're right on this point. I'll see if I can get Michilis to agree. What about installation? I was thinking the best way would be to use a roof ladder and have the two men on the roof wearing harnesses, one man on a scaffold tower at the edge of the building and one man on the ground to tie on the sheeting. This can then be manually hoisted up to the roof by rope one at a time. The scaffold can be moved along and that way the scaffold provides access to the roof ladder and both can be moved along as work progresses. The ground on the side we operate from will need to be flat to provide easy use of the scaffold. The scaffold also provides a work platform to install wall cladding to the north and south elevations. The east and west elevations can be clad from a boom lift. That sounds like the best approach to me. But I'm wondering about those power lines on the southern elevation. The sheeting could come in contact with that if high wind forces it out of your hands. I think the distance from the lines to the edge of the building would be about five metres.
15 On that basis, Mr Litchfield deposes, the approach was made to Mr Angelozzi, the site foreman for Michilis, to discuss the length of the cladding to be laid to take into account any difficulty in handling the cladding arising from the wind and the adjacent power lines.
16 It is not clear if the conversation Mr Litchfield recounts in his affidavit with his employees is the conversation that Mr Michilis refers to in his statement. It would not appear to be and no issue was taken by the prosecution or the respective defendants counsel about the matter. In any event it seems to me that, to the extent that there was discussion between the representatives of the corporate defendants including Mr Joseph Litchfield in relation to the adjacent overhead power lines, it was to the extent that account needed to be taken of the length of the sheeting to be handled in the context of potential wind and the proximity of the power lines and the electrical cables on the site. In other words, there is no evidence before me that suggests that problems with the mobile scaffolding toppling in the way that it did was contemplated or envisaged in any discussion about risks to safety posed by the close proximity of the overhead powerlines.
17 There is no dispute that in preparation for the task at hand, the defendant Litchfield Roofing Pty Ltd prepared a safe work method and risk assessment of the task to be performed. In Mr Michilis's affidavit he states: A safe work method statement and risk assessment was not specifically requested by my company from Litchfield Roofing Pty Ltd. Because of the recurrence of our relationship, Litchfield Roofing Pty Ltd always provided those statements. In respect of the subject works such a statement was provided by Litchfield Roofing Pty Ltd. As I informed the WorkCover Inspector when I was interviewed on 15 December 1998 (Q 54), upon reading it I requested inclusion of a statement that the scaffolding would be tied onto the building. I recall that a second statement was prepared with that inclusion.
18 The system of work employed to undertake the task of cladding is detailed in para [18] of the statement of facts and included attention to the following to prevent the scaffolding from falling:
· Outriggers attached to the scaffold on the southern side
19 There is little doubt that what was critical to the safe performance of the task at hand was a firm underground to ensure the stability of the mobile scaffold. This much is clear in an annexure to Mr Joseph Litchfield's affidavit before me. In placing their proposed safe work method plan before Michilis, Litchfield Roofing Pty Ltd stated in a covering letter: Note that firm level ground is required for safe and efficient use of mobile aluminium scaffold and EWP machines 3 metres around all sides of the building.
20 As well, the actual hazard and risk analysis/workplan submitted by Litchfield Roofing Pty Ltd on 9 December 1997 stated by way of risk control measures - Mobile scaffold moved along as work progresses. Requires firm level surface.
21 In the photographs that were placed before me by the prosecution numbered 1-14, there are a number that clearly display the side of the building that the employees of Litchfield Roofing Pty Ltd were working on when the accident occurred. It is clear that the overall building was of a metal framed, concrete based construction. Along the side of the building at set intervals there are concrete abutments that project outwards from the wall of the building. It is clear from a number of the photographs before me that, in the space between the base of the building and particularly the base of the concrete columns to the chain wire fence that surrounded the whole of the construction site, the ground close to that perimeter fencing was of a loose, sandy soil type.
22 The accident occurred at approximately 12:30pm on 15 December 1997. The employees of Litchfield Roofing Pty Ltd had already been at work since early that morning, placing cladding on the side of the building for some distance before the mobile scaffold toppled over.
23 It seems abundantly clear to me that when the mobile scaffold was actually in place for the purposes of securing the cladding, it was on a firm base. That is, the sections of plywood base were used and the wheels of the mobile scaffold stood on them while the employees were working on the mobile scaffold. As well, the mobile scaffolding was secured to the side of the building by ropes at the top of the scaffold. There was also an outrigger in place. All of these measures ensured that when the workmen were actually on the mobile scaffold it was stable and secure and was secured to the side of the building. The problem arose, as is clear to me, when the workmen had to move the mobile scaffold along. To do this, they had to untie the top of the mobile scaffold from the building and by a combination of a push and pull method, which was never explained to me precisely, move the scaffold progressively along the side of the building and then go through the task yet again of restabilising it at its base and resecuring the mobile scaffold to the side of the building. It was in the process of moving the mobile scaffold from one secure place to its next designated clear space that the external wheels of the mobile scaffold sank into the loose sandy soil near the perimeter fencing of the building. When that happened the scaffold tilted outwards. It would seem that in an instinctive action to try to restabilise the mobile scaffolding into an upward position the four employees grabbed the lower legs of the scaffold. They were unable to prevent the mobile scaffold from falling outwards and, while they still had hold of the base of the scaffolding, it hit the overhead powerlines. At that point the tragedy was complete.
24 To the extent that the powerlines had been considered by Litchfield Roofing Pty Ltd they had been considered in a different context as far as representing a risk to safety. As Mr Michilis states: On the Friday before Litchfield Roofing commenced work on the site there was discussion between myself and the foreman for Litchfield Roofing, in the company of Joe Litchfield. In the course of that discussion, apart from the tying of the scaffold to the building being discussed, there was also discussion regarding the presence of the electrical cables nearby and the need for there to be caution using and moving the scaffold as a result. The ground upon which the scaffold was to be moved was firmly compacted. There were timber sole plates provided by my company to be layed (sic) on the ground so that the wheels of the scaffold would move on those plates, thereby removing any risk whatsoever of the scaffold wheels sinking into the ground. I observed those plates under the scaffold wheels prior to the subject accident. My company had a foreman on site. Part of his function was to monitor safety compliance by all sub-contractors. This included steel erectors, electricians and plumbers, in addition to Litchfield Roofing. My company's foreman was unfortunately not able to spend all of his time constantly monitoring the performance of work by employees of Litchfield Roofing Pty Ltd.
25 There is no doubt that in relation to the work to be undertaken by Litchfield Roofing Pty Ltd, the stability of the scaffold was clearly seen as an essential prerequisite for ensuring a safe system of work in the work to be undertaken in the cladding of the building.
26 There is no evidence before me that in considering the stability of the scaffold, considerations turned precisely to the stability of the scaffold while it was being moved vis a vis the powerlines. To the extent that Mr Michilis makes mention of it in those passages of his statement that I have referred to above, one can only say that it is not clear to what extent the question of caution was raised. I can say only this, that if the issue of stability of the scaffold while it was being moved was precisely discussed, then it is clear to me that the way in which it was intended to be dealt with by the provision of the timber plywood plates under the wheels to be moved in some rudimentary manner was clearly inadequate, on any view.
27 Notwithstanding the conclusion I have come to, it would seem that the work of cladding the side of the building got underway on the day of the accident. Up to the time the accident occurred at 12.30pm or thereabouts, the rather rudimentary method of moving the mobile scaffold had been employed and, up to that point, employed without incident.
28 In the photographs before me, it seems inescapable to come to the conclusion that the essential requirement that had been so carefully emphasised by Litchfield Roofing Pty Ltd as a prerequisite to undertaking the task at hand was simply not complied with. That is, firm level ground for three metres around all sides of the building. The very fact that the wooden plywood plates were provided in the rather rudimentary fashion that they were (Photograph No 11 in the material before me shows their size and rather rudimentary nature very well) attests to that.
29 Not only were those wooden plywood plates nowhere near three metres in any dimension, but again, as best as one can ascertain from the photographs before me, (see Photograph No 2 in particular), the necessity for firm ground for a distance of some three metres, in order to secure the stability of the mobile scaffold, simply did not exist. If it did exist once the scaffolding was secured in position, that is one thing. But it seems self evident that if three metres of firm ground was required, it was required for the safe movement of the mobile scaffolding as well as for its safe use once positioned. That was clearly not there.
30 Counsel for the defendant Michilis submitted that when considering the overall culpability of the respective defendants concerning this incident, that of J & T Michilis Pty Ltd was less than that of Litchfield Roofing Pty Ltd. The substance of that submission, as I understood it, was that it was the direct role of Litchfield Roofing Pty Ltd as part of its own risk assessment of this task, to ensure, indeed insist on three metres of firm ground for the purposes of undertaking the cladding of the building. To the extent that the defendant Michilis was a party to that requirement it failed to ensure that that requirement was complied with as part of its supervisory responsibilities. Notwithstanding that, the primary responsibility for that rested with Litchfield Roofing Pty Ltd. In that sense it was submitted, in terms of culpability, the role of Michilis was and should be seen to be of a lesser degree.
31 As far as the direct requirement to ensure firm level ground for some three metres around the building in order to safely undertake the designated task, then I agree that the primary responsibility for that rested with Litchfield Roofing Pty Ltd.
32 It was after all, Litchfield Roofing Pty Ltd that emphasised, properly in my view, the need for safe firm ground and specified the distance that would be required. In order to ensure the safe system of work it had devised was maintained, Litchfield Roofing Pty Ltd had a responsibility to insist that Michilis provided that firm level ground. It is clear that Litchfield Roofing Pty Ltd failed to carry through on that insistence because what Litchfield Roofing Pty Ltd failed to do was to insist on the very safety requirement that had been part of the risk/hazard assessment that they themselves had identified prior to the commencement of the task at hand. 33 Nevertheless, if there is a joint failure on behalf of Litchfield Roofing Pty Ltd and J & T Michilis Pty Ltd, it is the respective failure to properly consider the presence of the adjacent overhead powerlines. It is clear that it had been raised and discussed between the two parties and it is clear that both defendants failed to properly and adequately identify the clear and present danger of working with a mobile scaffold in close proximity to overhead powerlines energised to 33,000 volts while undertaking the work to be performed.
34 It is in that context particularly that I assess Michilis's culpability in relation to the offence before me and to which they have pleaded guilty.
35 The three defendants have no prior convictions and the maximum penalty for each offence applying to the offences arising under ss15(1) and 16(1) of the Act is $550,000. In relation to the offence under s50(1) of the Act the maximum penalty is $55,000.
36 It is now well settled that a penalty for breach of the Act must reflect the objective seriousness of the offence: Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 where at 476 the Court stated: In the case of an offence under s15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.
37 Further, consideration as to what is meant by the objective seriousness of an offence has been expressed as the necessity to have regard to 'the nature and quality of the offence': Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, Full Bench, CT92/1041, 10 March 1994) at 4.
38 On the question of whether or not there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, it is clear, it seems to me, that the absence of proper stability for the mobile scaffold would pose foreseeable risks to safety for the employees concerned. There was a clear, established and risk assessed recognition of the need for firm level ground for a circumscribed distance around the perimeter of the building. It seems to me that in identifying that risk and/or hazard, it could not be said it was identified as necessary only when employees were actually working on the scaffolding but would, as a matter both of common sense and safety, involve those activities involved in actually moving the mobile scaffolding from place to place.
39 It may be that the precise nature of the injury was not foreseeable but there can be no doubt that the absence of stability in the overall use of the mobile scaffolding in the work being undertaken posed a risk to the safety of the employees concerned.
40 To the extent that there were clear remedial steps that were able to be taken concerning this matter, it is noted in the statement of facts that following this accident the corporate defendants before me were served with Inspection Notices and Prohibition Notices. Also, in para [27] of the statement of facts, the following remedial measures were addressed: a) The Safe Work Method Statement from Litchfield Roofing Pty Ltd was reviewed and amended to state that 'stationary steel scaffold erected by scaffold company in two stages each 36 metres long is to be used as the ground is unsuitable for mobile scaffold on the southern side.' b) The overhead power lines were relocated by Energy Australia to the southern side of Heron Road, thus eliminating all risk of contact with energised overhead power lines for the remaining wall cladding and roof sheeting to be undertaken on the southern side of the building. c) The improvement and prohibition notices were complied with and the remaining work was completed safely without incident.
41 In all the circumstances, I consider the offences before me to be serious and I propose to approach the question of penalty on that basis.
42 On the issue of culpability of the defendant J & T Michilis Pty Ltd when assessed against that of Litchfield Roofing Pty Ltd, I accept there are grounds for acknowledging a lower level of direct culpability in ensuring a stable and level ground for the purposes of the mobile scaffold. However, as I have already said, the culpability of J & T Michilis in relation to its failure to identify the dangers of persons working with mobile scaffolding in close proximity to the adjacent powerlines is, in my view, equal to that of Litchfield Roofing Pty Ltd having regard to that failure as particularised.
43 In imposing a penalty in this matter, regard must be had to general and specific deterrence. That much is evident from the decision of the Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly at paras [74] and [77]. In para [74] the Full Bench stated: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases ( see, for example, WorkCover Authority (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) NSWIR Comm 39 at 40-43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
44 On the aspect of specific deterrence para [77] of Capral states: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is proactive and not merely reactive: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust) Pty Ltd (2000) NSWIR Comm 53 at 46.
45 Counsel for the defendants acknowledged the need for general deterrence to be a factor in any sentence that I impose. In relation to specific deterrence I note in the first instance the statement of Mr Michilis, where he says: For reasons totally unrelated to the accident giving rise to these proceedings, and totally unrelated to these proceedings, my brother and I have decided to retire. To that end, in December 1998, the defendant company ceased to trade and has not resumed trading since then. 46 On the basis of that statement and in the absence of any evidence to the contrary, I am satisfied that the defendant J & T Michilis Pty Ltd has ceased to operate in the type of business that it was operating in at the time of the accident. Also, there is no evidence before me that the defendant company has continued to operate in the construction industry since 1998. Accordingly, in relation to J & T Michilis Pty Ltd I am satisfied that I can properly put to one side considerations of specific deterrence in the penalty that I ultimately impose for this offence.
47 The defendant Litchfield Roofing Pty Ltd continues to operate, albeit in a restructured form. As Mr Joseph Litchfield deposed: The company actually ceased to trade in the year 2000. It was decided at this time for various commercial reasons that a restructure should occur. My father retired from day to day involvement with the company at this point in time and Tim and I continued the business under the structure of a new company Litchfield Roofing Australia Pty Limited ('the new company'). The company (which operated for approximately 20 years) and the new company which have regularly employed workforces of 30 to 40 persons have not previously been the subject of any prosecution under the Occupational Health and Safety Act 1983 in the approximate 20 years since the Act was proclaimed. The company and the new company have been preparing safe work method statements for all commercial/industrial jobs undertaken by them since approximately 10 years ago. These were originally adopted after being exposed to same in dealing with large head contractors such as John Holland Constructions on construction projects and have been adapted and refined to incorporate WorkCover guidelines and material published over the years. Presently my brother Tim and I are equal shareholders in the new company. My father continues to conduct work through his own company David Litchfield Roofing Pty Limited.
48 In my view, having regard to considerations of specific deterrence, the defendant company Litchfield Roofing Pty Ltd continues to operate in all but name. The new company continues to operate in the same business and has a workforce of some 30 to 40 employees. Clearly, on Mr Mowle's affidavit evidence he continues to be employed and, as I understand it, his new employer would be Litchfield Roofing Australia Pty Ltd. There is nothing in his affidavit that suggests anything other than continuity of employment as between the two corporations insofar as his perceptions of them as employers and their respective attitudes to occupational health and safety matters. Accordingly, in my view, considerations of specific deterrence are relevant in relation to any penalty I impose in relation to Litchfield Roofing Pty Ltd.
49 The financial circumstances of the defendant J & T Michilis Pty Ltd were raised to the extent that the company has ceased to trade. On that point, counsel for the prosecutor submitted that, having regard to the financial circumstances of the defendant, it was necessary to have regard to the decision in Benbow v Converquip Pty Limited (2001) NSWIR Comm 85, particularly at para [53] of that judgment of the President, which states: Section 6 of the Fines Act 1996 makes plain that, in the exercise by this Court of its discretion to fix the amount of any fine, it is required to consider inter alia 'such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration.' Such matters were considered in Ferguson v Nelmac Pty Limited and also in Walco Hoist . This was said in the second of those cases, (again without setting out the authorities relied upon), at [27]: As to the financial position of the defendants, it is to be accepted in terms of general sentencing policy that the means of a defendant are relevant. This consideration may, in appropriate cases, involve a careful examination of the means of the defendant, and in consideration of the means of the defendant in fixing the amount of any penalty or fine: …This is, in any event, required by s6 of the Fines Act … It is to be observed, however, that a consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty.
50 Counsel for the defendant J & T Michilis Pty Ltd did not place any direct evidence before me as to the defendant's current financial circumstances in a corporate sense. To that extent, I simply note for the purposes of penalty that the company has ceased to trade but that in no way precludes me from imposing a penalty as I see fit having regard to the facts and circumstances of this matter. Indeed there was no submission placed before me to the contrary.
51 There was an issue between the parties as to whether or not the defendants had properly entered an early plea in this matter and were therefore entitled to a discount on the basis of that early plea.
52 In order to ultimately express a view on this matter it is necessary to provide background information concerning the commencement of proceedings in these prosecutions. The initial prosecutions in this matter commenced on 22 September 1999. Following that, notices of motion were filed on behalf of all three defendants. The notices of motion on behalf of the Litchfield defendants were filed on 9 October 2000 and, in relation to Michilis on 7 November 2001. Those motions sought the proceedings to be dismissed or alternatively struck out relying on arguments going to the validity of the originating process as well as to matters arising under s49(4) of the Occupational Health and Safety Act 1983. The matters raised in the notices of motion were stood over awaiting the outcome of the decision of the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 232. That decision was handed down on 19 April 2002. After that date, and at the behest of the defendant's solicitors, it became apparent that in relation to Michilis, the original defendant cited in relation to that charge was not registered as a corporation until 12 months after the accident giving rise to the offence. Accordingly, there was a need to substitute the defendant for the purposes of that offence as charged. This was done by way of notice of motion on 15 August 2002. On 28 August 2002, Walton J VP issued an order pursuant to s4 of the Supreme Court (Summary Jurisdiction) Act and on 26 September 2002 the defendant J & T Michilis Pty Ltd currently before me entered a plea of guilty to the offence charged under s16(1) of the Act.
53 In relation to the Litchfield defendants the scenario was the same except that there was no need to substitute the corporate defendant. Once Walton J VP issued the relevant s4 orders on 28 August 2002 the Litchfield defendants entered a plea of guilty to the offences as charged arising under s15(1) and s50 of the Act.
54 It is against that background that I accept that the defendants before me have entered a plea of guilty to the offences charged at the first reasonable opportunity. I do not place any great weight on the prosecution's contention that when the notices of motion were filed in October 2000 and November 2001 that the decision of the Full Bench of this Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Maugher) (2000) 100 IR 156 had essentially settled those matters raised by the defendants in the notices of motion filed in October 2000 and November 2001. As I understand it, the decision of the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon given on 19 April 2002 had originated as a challenge, as it were, to critical elements of the Full Bench decision in Ridge. To the extent that that challenge was ultimately unsuccessful does not deny the right of the defendants before me seeking to challenge the issuing of the originating process on grounds that they considered at that time to be valid and arguable. Further, in relation to Michilis Pty Ltd it is clear that the prosecution failed to take the fundamental step of identifying the correct defendant for the purpose of the offence ultimately charged before me. That matter, as I understand it, only became apparent when it was drawn to the prosecutor's attention by the defendant's solicitors.
55 Accordingly, I am satisfied that the defendants have entered their pleas at the first reasonable opportunity and are entitled to a discount for that early plea. In relation to each of the offences I assess that discount at 20% of the penalty I notionally impose.
56 There are subjective features to the offences before me to which the defendants are entitled to have taken into account in mitigation. As already indicated, none of the defendants have prior convictions and, on the material before me, they have been operating in what would be considered an industry fraught with risks to safety for many years. That factor must operate in their favour. There is every indication that the defendants cooperated fully with WorkCover in all investigations concerning this incident, complying with all notices and directions arising from this action in order to safely secure the workplace for ongoing work. Taking those subjective features into account, I assess a further discount on penalty of 10% with respect to all three offences.
57 In relation to the corporate defendant Litchfield Roofing Pty Ltd there is evidence to suggest that the defendant is viewed as having a committed and generally proactive role in relation to safety matters at its worksites. That evidence is to be found in the statement of Mr Michilis as well as the affidavits of Mr Carney on behalf of the Construction, Engineering and Plumbers Union (CEPU). Mr Carney deposes: I have been a union organiser in Newcastle since 1989 and from approximately 1994 until 2002 I was the Newcastle sub-branch secretary of the Plumbers division of the CEPU. During my time as a union official I have regularly visited Litchfield Roofing sites, probably on average about every one or two months, and I have formed a very high opinion of Litchfield Roofing and Tim and Joe Litchfield as to the manner in which they operate their business generally and specifically in relation to their commitment to safe working practices. The company's sites always have the prescribed safety equipment such as roof harness systems supplied and for many years on all large jobs safe working method statements have been created and complied with by the workers. The type of projects undertaken by the company are generally large commercial and industrial sites which are inherently dangerous and this type of construction requires a high level of commitment to safe working practices. I believe that the approach to workplace safety issues by Litchfield Roofing and Tim and Joe Litchfield is as good as if not better than any other operator in the roof plumbing industry in New South Wales and given the scale of the projects undertaken by them I would estimate that Litchfield Roofing would be one of the six largest roof plumbing operators in the State.
58 Further, Mr Mowle, who continues to be employed by Litchfield states: I am satisfied that Joe Litchfield and the company have a serious approach to all issues of workplace safety and identification of inherent and possible risk factors. I am convinced that Joe Litchfield and the company are safe employers and I am more than happy to entrust my safety in what is an often hazardous workplace to them on a daily basis.
59 Counsel for the personal defendant, Mr Joseph Litchfield submitted that the circumstances of that offence were such that I should properly apply the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
60 Section 10 of that Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years; (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the court thinks proper to consider.
61 The application of the provisions of s10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. In particular, I note reference within that decision to the comments of Wright J President in WorkCover Authority (New South Wales) v Ecolab Pty Ltd (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated: In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here).
62 In Profab, the Full Bench of the Court went on to say at para [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested.
63 The need for a rigorous approach and the proper application of the provisions of s10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.' [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided ( see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340. [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission.
64 In the proceedings before me, counsel for Mr Litchfield placed his submissions for the application of s10 on behalf of the defendant not in any way resiling from the propositions as enunciated in Profab but submitting in effect that when a rigorous and considered approach to the facts and circumstances before me are made, then the personal defendant is entitled to the discretionary benefit that s10 provides. He particularly took me to the decision of the Full Bench of the Court in State Rail Authority of New South Wales v Dawson (1990) 37 IR 110. His reliance on one aspect of that decision goes directly to the role of the personal defendant before me and the role, as understood, of the foreman for Litchfield Roofing Pty Ltd on the day of the accident, Mr Grist.
65 As already indicated in the hearing of these matters before me, I had an affidavit placed before me from Mr Joseph Litchfield. That affidavit was not objected to in any way by the prosecution and nor was Mr Joseph Litchfield required for any cross examination by the prosecutor. In that affidavit it is clear that Mr Litchfield, on behalf of the corporate defendant Litchfield, undertook certain steps to prepare for the job that Litchfield Roofing Pty Ltd contracted with Michilis to undertake at the worksite at Kooragang Island. I have already referred to the fact that the corporate defendant, Michilis had dealt with Litchfield Roofing Pty Ltd for some 25 years prior to the accident. As part and parcel of its standard approach to tendering for work, Litchfield Roofing Pty Ltd provided a document known as a Safe Work Method Statement. I have already made reference to that Safe Work Method Statement that was submitted by the corporate defendant Litchfield Roofing Pty Ltd to Michilis on 9 November 1997. Included as part of that Safe Work Method Statement was a hazard/risk assessment of the task to be performed where the issue of the need for a firm level surface was indicated.
66 In his role as a director of the company, it is clear that Mr Joseph Litchfield took a hands-on role. Indeed, the documentation annexed to his affidavit included the Safe Work Method Plan that was submitted on behalf of Litchfield Roofing Pty Ltd to Michilis. In that document Mr Joseph Litchfield is described as the Project Manager for the work to be undertaken at the site at Kooragang Island.
67 There were three directors of the corporate defendant Litchfield Roofing Pty Ltd. When asked by me why Mr Joseph Litchfield had been singled out as a director of the Company over the other two directors for the purposes of prosecution under s50(1) of the Act, the prosecutor replied: As I understand it, because of his personal participation in the events leading to the accident which is clearly set out in the statement of facts and indeed in his own affidavit. He seems to be, from the evidence, the man who did the talking to these workers, visited the site and so on; the more active director in short than what were the other directors there may have been (sic). There is a discretion exercised by the prosecution as to who the charges are pressed against in light of those facts.
68 On the basis of the information provided in Mr Litchfield's affidavit, of which no issue was taken by the prosecution, it is clear that in his capacity as Project Manager and as a director of Litchfield Roofing Pty Ltd, Mr Litchfield had appointed a team of four employees to undertake the work at the Kooragang Island worksite. Those four employees were Mr Bill Grist, Mr Todd Gibson, Mr Damian Mowle and Mr Gavin Shearer. As Mr Litchfield deposes: Bill Grist had been employed by the Company since September 1996. He was originally employed as a roof plumbing tradesman and later was promoted to the position of foreman. His role was to supervise the work crew on the site. He was one of about eight foremen then employed by the Company and in this particular instance he was in charge of the work crew comprising Todd Gibson, Damian Mowle and Gavin Shearer.
69 Mr Grist was a registered roof plumber and leading hand and when he made his application to Litchfield Roofing Pty Ltd for the position of roof plumber he set out his prior work experience. That information was annexed to the affidavit of Mr Joseph Litchfield. In that three page document he was asked this question: Have you had experience as a leading hand responsible for other roof workers on a construction site? If so, give details.
70 Mr Grist did provide details setting out that he had been a leading hand with a firm called Nova Plumbing and a leading hand with Hyland Roofing. He was also asked about his safety qualifications and he indicated then that he was a safe worker, adding the words 'My record speaks for itself (no compensation).' It would seem that Mr Grist's registration as a roof plumber, of which there is evidence before me, had been obtained without having undergone any formal training or trade certificate course. As Mr Litchfield deposes: Not that long prior to the TAFE course which I undertook, no TAFE course actually existed for roof plumbers and the rule was that if a person had four years experience in the industry then they could become registered.
71 In relation to Mr Gibson who was also one of the four employees engaged for the work at the Kooragang site, Mr Litchfield further states: Todd Gibson was employed by the Company on 5 July 1996 as an apprentice metal roof plumber. By the time he came to work for the company he had been working in other areas including working for Transfield who were engaged in large commercial and industrial projects. Additionally, Mr Gibson had gone to TAFE and undertaken an advanced scaffolding certificate. Todd Gibson's role was to work as part of the work crew on site and, where scaffolding was involved in particular, to be responsible for overseeing the erection of the scaffolding. Todd Gibson's advanced certificate in scaffolding was at December 1987 the highest qualification that could be obtained in scaffolding. I also had an advanced certificate in scaffolding at that time.
72 All in all, there is evidence before me, not in any way attacked by the prosecution, that would suggest that the personal defendant, Mr Joseph Litchfield in his capacity both as a director of the corporate defendant, Litchfield Roofing Pty Ltd and in his capacity as Project Manager for the particular job at Kooragang Island, had appointed a team of four employees to do that particular job, two of which he had confidence in their skills and experience, and on any view was entitled to rely on that skill and experience.
73 In relation to the need for a firm level ground surface for the purposes of the mobile scaffold Mr Litchfield deposes to a conversation that he had with Mr Vince Angelozzi, the site foreman for Michilis on or about 8 December 1997 as follows: Litchfield: Vince, we've worked out our approach to the roofing, but we will only be able to use 8.5 metre lengths with a join in the middle because of the difficulty in handling. We will also need to make sure that the ground along the edge of the building is level and firm so as to enable us to move the scaffolding along. Angelozzi: Check with John Ryan (Michilis manager) about the sheets. I will get the ground fixed up for you. The meeting then finished. This was the first time that I had met Vince Angelozzi. When I inspected the site on 8 December 1997 the ground adjacent to the walls which were to be clad was very uneven and it would have been impossible to erect scaffolding on it let alone move mobile scaffolding. This is not unusual on a building site and it was to that condition that I directed Vince Angelozzi's attention. 74 I have already detailed the Safe Work Method Statement prepared by the corporate defendant Litchfield Roofing Pty Ltd in relation to the work to be undertaken at the Kooragang Island construction site in December 1997. In relation to that Safe Work Method Statement which identified the risk in relation to the mobile scaffolding and the need for a firm level surface, that Safe Work Method Statement was discussed and agreed to by the four employees undertaking the work on behalf of Litchfield Roofing Pty Ltd on 15 December 1997. Annexed to Mr Litchfield's affidavit and identified as Section C of the Safe Work Method Statement is a training schedule checklist document. That is a page that says: I hereby agree that I have read and understand this Safe Work Method Plan document and that I will comply with the requirements contained within and by instruction given by my supervisor in order to fulfil my obligations under statutory occupational health and safety regulations. Project: TNT Bulk storage facility, Kooragang Island: Job number 3241.
75 Underneath that heading is provision for names and signatures. Listed on that page, signed on 15 December 1997, are the names and signatures of Mr Gibson, Mr Grist, Mr Mowle and Mr Shearer. As I understand it and as Mr Joesph Litchfield attests, each of those four employees signed that agreement and acknowledgement before they started work on the site on 15 December 1997.
76 On the facts before me, it was clear that Mr Joseph Litchfield was never intended to be part of the workforce of Litchfield employees actually working on the site at Kooragang Island erecting the cladding to the building in question. That was to be undertaken by the four employees named, supervised on a direct basis by Mr Grist. Mr Grist had the ability to contact Mr Joseph Litchfield in the event of any problems arising on site. True it is that Mr Litchfield was able to drop into the site should he need to or should he wish to at any time. In relation to that aspect of his responsibilities Mr Litchfield deposes as follows: On 15 December 1997 I had a meeting at Incitec Fertilizers Ltd in Greenleaf Road Kooragang Island at about 7:00am. As I was driving past the site I saw Bill Grist crossing the road adjacent to the TNT site. I stopped my vehicle and said 'Hello, Bill. I can't stop. I've got a meeting to go to. I'll call in on my way back from Incitec.' At approximately 9:30am on the same morning I returned to the site and I had a conversation in words to the following effect with Bill Grist: Litchfield: Gidday, Bill. How's it going? Grist: Okay, Joe. Can you check for me to see if those two brackets I need have been delivered to the depot yet? Litchfield: They haven't yet Bill. You should call Speedway Sheetmetal to see if they have finalised them yet. Grist: I will do that. What about the Alsynite for the wall? When should that be delivered? Litchfield: I'm not sure. I will check for you. Grist: I've had to call Aluminium Scaffolds for some additional scaffolding and that hasn't arrived yet. Once that's here we will be able to complete it and commence the cladding. I could see from my position that at this time no cladding had been installed to either the roof or the sides of the building. I saw that the workers were still in the process of erecting the scaffolding. I then left the site. This visit to the site was not routine and indeed only occurred because I happened to be in the neighbourhood at the time and felt like I should just say hello to the crew on my way past. I did not conduct an inspection of the site. When I asked Bill Grist if everything was going alright I fully expected that if there had been any difficulties with the equipment or the site that Bill would have notified me of it at the time. Bill Grist had been supplied by me with a mobile telephone for use in contacting either me or suppliers or for that matter making any other communication which he needed to facilitate the job. I regarded Bill as an experienced leading hand/foreman and expected that if there had been any difficulties encountered in the carrying out of the work or in the site conditions, particularly in the areas that we had discussed in our meeting on 8 December 1997, that he would have contacted me or at the very least contacted the head contractor on site.
77 On the material before me it is evident in my view that while Mr Joseph Litchfield was a hands-on director in relation to the corporate defendant Litchfield Roofing Pty Ltd, he nevertheless delegated responsibility for direct supervision on site to an appropriate employee as foreman. In relation to the Kooragang Island construction site, Mr Grist was his appointed foreman. Mr Grist and his fellow employees were clearly made aware of the Safe Work Method Plan that had been devised by the corporate defendant with input from Mr Joseph Litchfield and Mr Grist. It is clear, it seems to me, that when Mr Joseph Litchfield somewhat spontaneously dropped into the worksite on 15 December 1997, the actual work of cladding the side of the building had not commenced and the erection of the scaffold had not been completed. As he stated, he did not conduct any inspection on the site and simply enquired of Mr Grist if everything was going all right.
78 Counsel for Mr Litchfield submitted that it is at that point that one can turn to the decision in State Rail Authority v Dawson and in particular to para [125] where the Full Bench said as follows in relation to the facts before them: Our conclusion on the facts is that it is equally consistent for the accident to have occurred by reason of the casual omission by the foreman in the allocation of work to Mr McFadyen and in the supervision of him in the performance of that work. The appellant, in our view, having laid down a safe system of work, has not done or omitted to do anything causally connected with this tragic accident. What occurred was beyond the employer's control.
79 The submission made was that the situation concerning Mr Litchfield's role in what occurred on 15 December 199 was analogous to the safe system of work laid down in Dawson. As I understand the submission, Mr Litchfield, in his role as the director of the Company, actively engaged in the Company's activities as he was, had done all that he could to lay down a safe system of work. To the extent that circumstances arose as they did and a firm level surface was not present to the extent that was required was not an omission that could be connected in a direct sense with Mr Litchfield. Further, to the extent that culpability has been admitted, it has been admitted by the corporate defendant Litchfield Roofing Pty Ltd, the employer of the four workmen concerned, including Mr Grist. As the designated foreman on the day in question, it was open to Mr Grist, aware of the Safe Work Method Plan which he had signed, to raise his concerns at any time about the state of the ground on which the mobile scaffold was to stand. He had not done so. Mr Litchfield, as a director of the corporate defendant, was entitled to assume that he was proceeding with the job in accordance with the Safe Work Method Plan. Clearly that was not the case.
80 On the evidence before me I accept that Mr Litchfield was not directly involved in the task of cladding the building. He had laid down clear directions for that task which, if complied with, would have ensured that the mobile scaffold would have been able to be used and moved safely. Further, on the evidence before me, there was no obligation nor intention on Mr Litchfield's part to be present at the worksite throughout the day but to be available to Mr Grist as the need arose.
81 Counsel for Mr Litchfield also took me to the decision of Hungerford J in WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd (2001) 110 IR 469.
82 In that matter, somewhat on all fours with the matter before me, his Honour exercised the discretion available to him and applied the provisions of s10 of the Crimes (Sentencing Procedure) Act by dismissing the charge against the personal defendant in that matter, Mr Green. In that matter, which also involved a worksite accident in relation to scaffolding, Mr Green was the director of a relatively small to modest company engaged in the business of scaffolding. He had been actually engaged in working on the site on the day the accident occurred but, in circumstances as detailed by his Honour in his judgment, had been called away for a brief period to deal with another problem on site when the accident giving rise to the prosecution arose. In coming to the view that he did in relation to the application of s10 in that matter before him, his Honour had this to say in para [19]: …I have to say I have reached that conclusion with some hesitation but, on balance, and consistent with the terms of that section, I consider in the circumstances it would be inexpedient to convict him and to impose a fine. I regard the fine against the corporate defendant as sufficient to meet the ends of justice for the identified risks to safety in the incident here concerning Mr Sales on 13 August 1998. In R v Rushby (1977) 1 NSWLR 594 at 598, the balancing process involved in sentencing was dealt with by Street CJ by reference to what the Court of Appeal in New Zealand said in R v Radich (1954) NZLR 86 at 87 as follows: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. Mr Green has had no prior convictions of any nature and during evidence he presented as a sincere, hardworking tradesman who was endeavouring to build and maintain a small business in difficult commercial circumstances. In a sense, his brief departure from the scene of the incident at the time it occurred to attend a pressing problem elsewhere on the site was no excuse for the safety detriment which thereby arose but, I am prepared to accept, it was a causal omission which should not result in a criminal record being created against Mr Green. I think to do so, in the circumstances where the corporate defendant is to be convicted and fined accordingly, would be neither suitable nor judicious.
83 As Wright J, President said in WorkCover Authority of New South Wales v Ecolab, in any consideration to apply the provisions of s10 of the Crime (Sentencing Procedure) Act, each matter has to be considered in relation to its own particular circumstances. And so it must be here. Having regard to the facts and circumstances before me, I am satisfied that I can properly exercise the discretion available to me in favour of the personal defendant, Mr Joseph Litchfield. I do so primarily because, on the material before me, to which no issue was taken, it is clear that in his role as a director of the corporate defendant, Litchfield Roofing Pty Ltd, Mr Litchfield had appointed a foreman to directly supervise the work to be undertaken by the corporate defendant Litchfield Roofing Pty Ltd. That foreman was aware of the Safe Method Working Plan that had been developed for the task at hand. He was also able to contact Mr Litchfield if there were any problems in carrying out the job at hand. He did not do so and in my view Mr Litchfield was entitled to assume there were no problems. Further, on the evidence before me, Mr Litchfield undertook his task in a way that showed a real and proper commitment to his and the company's responsibilities concerning safety issues at the work site. It is clear that a proper risk analysis was undertaken. It is clear that the risk to safety as to a firm level surface in relation to the mobile scaffolding was identified. It is clear that, to the extent that Mr Litchfield was involved on behalf of the corporate defendant Litchfield, an insistence on firm and level ground was seen as an absolute prerequisite to undertaking the task at hand. To the extent that that did not occur, the culpability that flows from that is not, on the material before me, a culpability that, for the purposes of sentence, should be visited upon Mr Joseph Litchfield as one of three directors of the corporate defendant who has already entered its plea of guilty.
84 Section 10(3) says that the court is to have regard to matters such as the person's character, antecedents, extenuating circumstances and other matters that the court thinks proper. There has been placed before me a considerable degree of testamentary material attesting to the character of Mr Litchfield, both in relation to his approach to his job and his role in the community which, as attested to, is extensive and constructive.
85 On any view, this accident has affected Mr Litchfield profoundly. There is nothing to suggest that, as he expressed in his affidavit, that he has been anything other than profoundly affected by the accident, particularly the death of Mr Shearer. As he deposes: I remember vividly seeing Gavin laying there where he was. I had never experienced death at close quarters like this before. I have never forgotten the feeling that I had on that day and there is seldom a day goes by that I do not think of the accident, of Gavin and the feelings which I experienced of overwhelming sorrow and regret that such an accident had occurred. Some days after the accident my father David Litchfield, my brother Tim Litchfield and I travelled to Raymond Terrace north of Newcastle where Gavin's parents lived and met and spoke with them at their family home. They were of course most distraught but were courteous to my brother, my father and to me and appreciated our visit on the day at which time we paid our respects to them and attempted to comfort them in respect of their tragic loss. Both myself, my father David and my brother Tim attended the funeral service for Gavin and the company closed its office and shut down all jobs so that the entire workforce of the company could attend the funeral service. I have not maintained any contact with Gavin's family since that time. I was distressed at the time by the effect of his loss on the family and thought that it was important to reserve their privacy and allow them to grieve without providing any further reminders of Gavin's death. I dwelt heavily on the accident. I had always taken great pride in my work and in the company's and my own safety record and I was devastated by the loss to Gavin's family and aggrieved that the accident had occurred when myself and the company were so safety conscious. In the weeks following the accident I experienced interrupted sleep patterns as I constantly revisited the events of the accident. Additionally I recall that I was particularly affected at family celebrations on a wedding anniversary and at Christmas both of which occurred shortly after the accident. Much of the sadness and anguish that I felt at the time was internalised and I was deeply affected by the accident. I had met Gavin's father for the first time only after his death and I had felt terrible shaking his hand in such circumstances thinking how I would feel if it was my son who had died. Since the accident I now have a young son and I am constantly reminded when watching him grow up of the loss to Gavin's family. I recall Gavin's mother making some critical comments in the local press at the time of the accident and even though I considered there were some mitigating circumstances surrounding the tragic accident I viewed her comments as quite reasonable having regard to the great personal loss suffered by her.
86 I also take the view that, in relation to Mr Joseph Litchfield, I can accord some weight to the affidavit evidence of Mr Carney and Mr Mowle referred to in paras [57] and [58] above.
87 In all the circumstances and taking into account all the material that I have referred to, I am satisfied that in relation to the personal defendant, Mr Joseph Litchfield, I can properly exercise the discretion available to me and apply the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999. Accordingly, in relation to that offence, the defendant should be discharged without conviction and penalty.
88 In November 2001, the three defendants before me filed notices of motion that sought these proceedings be dismissed or alternatively, struck out or permanently stayed. The basis for the application, in short, went to arguments grounded in s49(4) of the Act as well as the validity of the originating summons. I have detailed the background to the notices of motion in paras [50] and [51] of this judgment. It does not require to be repeated.
89 As already indicated, that decision in WorkCover v Lucon upon which the notices of motion were contingent was handed down in April 2002. As a result of that decision, by consent, Short Minutes of Order were made by the Court concerning the notices of motion in relation to all three matters before me. The orders made by the Court on 29 October 2002 relevantly were as follows: 1. The Notice of Motion filed by the First Defendant (Litchfield Roofing Pty Ltd) on 9 October 2000 is withdrawn and costs of the motion are reserved. 2. The Notice of Motion filed by the Second Defendant (Joseph Litchfield) on 9 October 2000 is withdrawn and costs of the motion are reserved. 3. The Notice of Motion filed by the Third Defendant (J & T Michilis Pty Ltd formerly known as Michilis Pty Ltd) on 7 November 2001 is withdrawn and costs of the motion are reserved.
90 It is the question of costs of the motions that still awaits to be determined. Relevant to my decision in this matter is the decision of the Full Bench of the court on the issue of costs in the WorkCover v Lucon matter. That decision was given on 9 May 2003 in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) NSWIRComm 40. In that decision, on the question of costs, the Court ordered that the defendants were to pay the prosecutor's costs of the motions to be assessed in the absence of agreement: such costs were to be limited to one set of costs which, in the absence of agreement, were to be borne by the defendants in equal shares.
91 Specifically on the question of costs, the Full Bench in that matter had this to say at para [23]: On the question of costs of the motions we consider that the defendants should pay the prosecutor's costs. We say that for the same reasons that we would dismiss the motions. That is, that the substantive issues sought to be canvassed by the defendants in the notices of motion and the subsequent reference were directed to arguing the validity of the initiating process such that the summonses should be dismissed, struck out or permanently stayed. On those issues the Court has found against the defendants and in doing so has affirmed the conclusions in Ridge . We do not accept the thrust of the defendant's submissions that the matters raised and the questions posed arising from the notices of motion raised novel questions or matters of significant importance that had not already been decisively determined such as to warrant consideration by a Full Bench and that they therefore should not be liable for the relevant costs.
92 In my view, the background to the costs issue before me on the notice of motion is no different to that considered by the Full Bench in Lucon (Australia) Pty Ltd No 2. The approach taken by the Full Bench in that matter is one I propose to adopt here. Accordingly, in relation to the question of costs on the notice of motion arising in relation to this matter and to those matters already mentioned, I determine that the defendants are to pay the prosecutor's costs of the motions to be assessed in the absence of agreement; such costs should also be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares.
93 Taking into account all of the above facts and circumstances as I have, I determine as follows in relation to the three offences:
Re: Matter No IRC 7014/99 (Litchfield Roofing Pty Ltd)
94 I assess a notional penalty in the first instance of $200,000. In applying the discounts that I have assessed I determine a final penalty of $140,000. I make the following orders:
· The defendant is convicted of the offence as charged.
· I allocate a moiety to the prosecutor on the usual terms.
· Costs to the prosecution as agreed or failing agreement, that matter be re-listed for further determination.
95 I discharge the defendant without conviction and penalty in accordance with the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999.
96 I assess a notional penalty in the first instance of $120,000. In applying the discounts that I have assessed I determine a final penalty of $84,000. I make the following orders:
· The defendant is convicted of the offence as charged.
· I allocate a moiety to the prosecutor on the usual terms.
· Costs to the prosecution as agreed or failing agreement, that matter be re-listed for further determination.
97 In relation to the notices of motion I order that the defendants are to pay the prosecutors costs of the motions to be assessed in the absence of agreement; such costs should also be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares.
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.
WorkCover Authority of New South Wales (Inspector Dall)
Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; J & T Michilis Pty Ltd
(1999) 90 IR 464
(2000) 99 IR 29
(2002) 112 IR 232
(2000) 100 IR 156
(2000) 100 IR 64
(1999) 90 IR 413
(1990) 37 IR 110
(2001) 110 IR 469
(1993) 47 IR 1
(1998) 82 IR 80
(1995) 59 IR 89
(1987) 10 NSWLR 247
(1991) 24 NSWLR 156
(1998) 83 IR 338
(1977) 1 NSWLR 594
Litchfield Roofing Pty Ltd convicted and fined $140,000 (moiety to prosecutor); J & T Michilis Pty Ltd convicted and fined $84,000 (moiety to prosecutor); Joseph Andrew Litchfield discharged without conviction or penalty under s10 Crimes (Sentencing Procedure) Act 1999; defendants ordered to pay prosecutor's costs of withdrawn interlocutory motions, to be assessed if not agreed and limited to one set shared equally (paras [94]-[96], [92]).