WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman

LEGISLATION CITED: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000

PROESCUTION: Mr R Reitano of counsel SOLICITORS: LEGAL REPRESENTATIVES: Criminal Law Practice Legal Group

CORAM: Staunton J DATE: 24/11/2006

Matter No IRC 5606 of 2005 WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman Prosecution pursuant to s 10(2) and by virtue of s 26(1) of the Occupational Health and Safety Act 2000

1 In these proceedings, the defendant has been charged with an offence in that: Being a director of a corporation, Akerman-Apache (Joint Venture) Pty Limited, ACN 105 825 821, whose registered office is situated at Suite 45, 47 Neridah Street, Chatswood, in the State of New South Wales (corporation), by virtue of section 26(1) of the Act, is taken to have contravened section 10(2) of the Act, in that the corporatio n, being a person who had control of plant which was: (a) not plant used only by employees of the defendant; and

(b) not plant used in premises occupied as a private dwelling; and

(c) plant which was controlled in the course of a trade, business or other undertaking (whether for profit or not) of the defendant; and

(d) plant provided for the use of persons at work, on 3 November 2003 at Otford Road, Otford, New South Wales failed to ensure that the plant as aforesaid described, was safe and without risks to health when properly used contrary to section 10(2) of the Occupational Health and Safety Act 2000. The particulars of the charge are that: (a) At all material times the defendant was a director of the corporation.

(b) The corporation failed to ensure that the plant was safe and without risks to health when properly used in that it: (i) Failed to ensure use of a towing vehicle for towing a mud plant (mud mixer) that was safe and without risks to health and safety. (ii) Permitted a dual axle Tiri Kemtron trailer registered in the United States of America, Oklahoma registration no. 747-5EL, Vin No 5CNPF222PYC000097 (trailer) weighing 9561.82 kg to be towed without a safe braking system. (iii) Failed to ensure that steps were taken to ensure that the trailer was not towed once becoming aware that the braking system of the trailer was inadequate and posed a risk to the health and safety of persons at work. (iv) Failed to ensure that Ross Boyer did not use a 20.8 tonne International Water Tanker model SF2670, registration number QFQ107, (truck) without a safe braking capability. (v) As a result of the corporation's failures Ross Boyer and other persons were placed at risk of injury. (vi) The defendant, being a director of the corporation, is taken to have contravened section 10(2) of the Act by virtue of section 26(1) of the Act. 2 The proceedings against the defendant were commenced on 2 November 2005 when the prosecutor filed an application for order with the Court. The order was made by Staff J on 2 November 2005 and issued by the Registry together with the summons on that date. 3 Since the above date and by way of preliminary case management, this matter has been before the Court on a number of occasions. At no time has the defendant entered an appearance. 4 Along with the defendant, there are three other defendants charged in relation to the incident giving rise to Mr Akerman's offence. They are all legally represented and, until very recently, had entered pleas of not guilty to their respective offences. Those matters were Matter No IRC 5605/2005 - WorkCover Authority of NSW (Inspector Belley) v Jonathan Dwyer Herbert; Matter No IRC 5607/2005 - WorkCover Authority of NSW (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and Matter No IRC 5608/2005 - WorkCover Authority of NSW (Inspector Belley) v John Lindsay Walker. 5 On 19 May 2006, all defended matters were set down for hearing. In relation to Mr Akerman, absent any appearance, the prosecution flagged an intention to proceed on an ex parte basis. 6 On 31 October 2006, the three defendants identified above formally entered a plea of guilty to an amended application for order in relation to their respective offence. Submissions on sentence having been heard, I have now delivered my judgment on penalty in relation to all three defendants: see my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370 given earlier today. Relevant facts and considerations 7 In relation to Mr Akerman, the prosecution have sought leave to proceed against him on an ex parte basis. I am not persuaded that such leave is necessary having regard to s 250(a) of the Criminal Procedure Act 1986 that provides: 250 Procedure where accused person does not obey order to appear If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2. 8 In any event, on behalf of the prosecutor, reference was also made to Rule 112(4) of the Industrial Relations Commission Rules 1996. Rule 112 deals with service of originating process outside of Australia. Rule 112 (4) provides: Where there is no appearance by the defendant or respondent to any process served under this Rule, the applicant must not proceed except by leave of the tribunal before which the proceedings are brought. 9 Notwithstanding the preliminary view expressed in relation to s 250(a) of the Criminal Procedure Act, I am prepared to grant leave as required by Rule 112(4) of the Rules. Accordingly, assuming the defendant to have been properly served, I will deal with the offence before me on an ex parte basis. 10 Consideration of the matter before me persuades me that Mr Akerman's liability for the offence charged is properly determined having regard to the provisions of s 10(2) and s 26(1) of the Occupational Health and Safety Act 2000. Specifically, as is alleged: The defendant, being a director of the corporation, is taken to have contravened section 10(2) of the Act by virtue of section 26(1) of the Act. 11 It is apparent that Mr Akerman's liability under s 10(2) arises pursuant to the provisions of s 26(1) that provides:

26 Offences by corporations - liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 12 As the situation now stands, the corporate defendant Akerman-Apache (Joint Venture) Pty Limited (Akerman-Apache) of which Mr Akerman is asserted to be a director, has entered a plea of guilty to an offence charged under s 10(2) of the Act and has been sentenced in relation to it. That offence is particularised in relevantly similar terms to that laid against Mr Akerman. It seems clear to me that once the corporate defendant admits it's contravention and is, in due course, convicted, Mr Akerman as a director of the corporate defendant, is, as s 26(1) provides, 'taken to have contravened the same provision' subject to the statutory defences provided in s 26(1)(a) and (b). 13 Accordingly, for me to find the offence proved with respect to the defendant, I need to be satisfied: (i) as to service of the defendant; (ii) that he was at the relevant time a director of the corporation that contravened the Act; and (iii) that he is, on the evidence before me, unable to rely on the statutory defences provided in s 26(1)(a) or (b). 14 In establishing the offence charged against the defendant relevant to the matters I have to determine, counsel for the prosecutor has tendered, and I have admitted, the following: (i) Affidavit of Inspector Belley sworn 3 November 2006 to which is annexed, inter alia, the affidavit of service of Mr Terry Gibson earlier referred to; (ii) Facsimile from Akerman Construction Co Inc to Tony Jaroszewicz, Priority Sewerage Program Alliance Team, dated 20 May 2003 attaching Statement of Qualifications. (iii) Letter of Award from Priority Sewerage Program Alliance Team to Akerman-Apache Alliance dated 31 July 2003. (iv) Instrument of Agreement Priority Sewerage Program Alliance - Coalcliff, Stanwell Park, Stanwell Tops and Otford Sewerage Scheme, Subcontract No. 01 - C020 for Horizontal Direction Drilling at Stanwell Tops and Otford for Transfer and Gravity Mains. (v) Manager's Statement of Steve Barker dated 30 August 2005. (vi) Historical Company Search for Akerman-Apache (Joint Venture) Pty Limited. (vii) Company Statement of Lindsay Walker dated 2 September 2005. (viii) Company Statement of John Herbert dated 12 August 2005. (ix) Witness Statement of Paul Roger Jasper dated 9 August 2005. (x) Witness Statement of Jay Francis Haigh dated 2 August 2005. (xi) Vehicle Import Approval No, 66077/1 under Regulation 11 - Used trailer over 4.5 tonnes ATM dated 12 August 2005. (xii) State of Oklahoma Tax Commission - Vehicle Registration. (xiii) Witness Statement of John Carey dated 4 August 2005. (xiv) Witness Statement of Ian White dated 6 May 2005. (xv) Statement of Constable Gordon Wreford dated 5 July 2004. (xvi) Statement of Constable Gordon Wreford dated 6 October 2006. (xvii) Letter from Department of Immigration and Multicultural Affairs dated 2 November 2006. (xviii) Email from Department of Immigration and Multicultural Affairs dated 3 November 2006. Service of the defendant

15 Reference to the documentation tendered establishes that Mr Akerman, an American citizen and resident, is the President of Akerman Construction Co. Inc. located in Purcell, Oklahoma, United States of America. 16 On 2 February 2006, the defendant was served by Mr Terry Gibson, Licensed Process Server in Oklahoma, with a copy of the Order made by Staff J together with the documents required by para [3] of Practice Direction No 12: Occupational Health and Safety Prosecutions - Standard Timetable and Directions Pursuant to Rule 89 of the Industrial Relations Commission Rules 1996 as follows: (i) a Certified Copy of the Order, a copy of the Application for an Order together with the supporting Affidavits;

(ii) a blank Notice of Appearance (Form 37); (iii) a copy of Practice Direction No 12; and (iv) an explanatory document advising the defendant of his obligations to file and serve a Notice of Appearance and the consequences of his failure to appear at the first Directions Hearing or otherwise in the proceedings. 17 Included in the material served was a document titled Obligations of Defendant in Criminal Proceedings that stated, inter alia: Failure to appear at the first directions hearing, or failure to otherwise attend the hearings of the matter, may result in: s the matter being heard in your absence, including conviction and the imposition of a penalty; and s an order for costs against you. 18 Annexed to the affidavit of Inspector Belley tendered by the prosecution in relation to Mr Akerman was an affidavit of Mr Terry Gibson sworn on 2 February 2006 deposing to personal service on the defendant on 2 February 2006 of the documents identified in para [16] above. In his affidavit, Mr Gibson deposed relevantly: At the time of service I asked the person served, 'Are you Steven Carl Akerman?' He replied 'Yes'. 19 In addition to personal service, I note also from Inspector Belley's affidavit, the solicitors for the prosecutor have written to Mr Akerman on three occasions in relation to these proceedings - on 7 November 2005, 14 March 2006 and 5 June 2006. 20 I am satisfied the defendant has been properly served in accordance with s 250 of the Criminal Procedure Act 1986. Director of the corporation 21 In May 2003, Mr Akerman, on behalf of Akerman Construction Co. Inc. registered an expression of interest to Mr Tony Jaroszewicz of the Priority Sewerage Program Alliance Team (PSPAT). PSPAT was an alliance of Sydney Water Corporation, MWH Australia Pty Limited, United KG Pty Limited, John Holland Pty Limited and Manidis Roberts Consultants Pty Limited. PSPAT was formed for the purposes of building a sewerage scheme for Coalcliff, Stanmore Park, Stanmore Tops and Otford. 22 As the documentary evidence discloses, in order to undertake the project in Australia, Akerman Construction entered into a joint venture with an Australian company, Apache Earthworks Pty Limited. That joint venture was incorporated as Akerman-Apache (Joint Venture) Pty Limited: ACN 105 825 821. There were two other directors of that joint venture, both of whom along with the joint venture company, have been charged with offences arising from the incident giving rise to the offence involving Mr Akerman. The two personal defendants are Mr Jonathan Herbert and Mr John Walker. As earlier indicated, Akerman-Apache, Mr Walker and Mr Herbert have all entered pleas of guilty to amended applications and have been dealt with. 23 In his statement tendered in these proceedings dated 12 August 2005, Mr Herbert explained that Akerman-Apache was created to allow Akerman Constructions to work in Australia because it needed an Australian based company structure to do so and, according to Mr Herbert, 'the contract was issued to Akerman Constructions in Oklahoma. All of the plant, labour, skills and operation was run by Akerman Constructions.' 24 The relevant ASIC historical company extract in relation to Akerman-Apache (Joint Venture) Pty Limited discloses that Steven Carl Akerman was a director of the joint venture company at the relevant time of the offence with which I am concerned. 25 I am satisfied that, at the relevant time, Mr Akerman was a director of Akerman-Apache (Joint Venture) Pty Limited, ACN No 105 825 821, the corporate defendant and a co-defendant in proceedings for an offence pursuant to s 10(2) of the Occupational Health and Safety Act 2000 and arising from the same factual matrix as the one currently before me in relation to Mr Akerman. Substantive offence established

26 I have already determined the defendant has been properly served. As well, on the material before me and to which I have already been referred, I am satisfied he was, at the relevant time, a director of the corporate defendant. The corporate defendant has pleaded guilty to the offence charged under s 10(2) of the Act as particularised in the amended application for order filed in relation to it. Further, as earlier stated, I have now sentenced the corporate defendant. 27 There is one particular pleaded with respect to Mr Akerman that is not particularised with respect to the corporate defendant. That is, that Mr Akerman: (iii) Failed to ensure that steps were taken to ensure that the trailer was not towed once becoming aware that the braking system of the trailer was inadequate and posed a risk to the health and safety of persons at work. 28 I have some difficulty attributing the above particular failure directly to Mr Akerman absent the liability of the corporate defendant. The evidence I have from Mr Jasper's statement is that Mr Akerman was the project manager on site 'when he was in Australia and Chuck Nelson when he wasn't'. It is undisputed that at the time of Mr Boyer's accident on 3 November 2003 involving the mud plant and the truck, Mr Akerman was in the United States. 29 Further, the evidence of Mr Jasper, corroborated by Mr Haigh, is that Mr Steve Akerman was not involved in the decision to shift the mud plant using the truck in the way and in the circumstances that was done. As Mr Jasper said in his statement: Q44: In your statement to the NSW Police identified as Document 4.10, paragraph 9 you stated 'They made a decision to start bringing the mud machine down to the work sites. To do this they required a truck to tow the mud machine to the sites. The truck that I drove was not equipped with a rear towing hitch. As a result they decided to build one on the back of the International. When I refer to they, I mean Chuck Nelson, Mark Akerman, Mark and Ross Boyer.' Is that correct? A44: Yes. Q45: Did you observe the towing hitch being built on to the back of the International Water Tanker? A45: Yes. Q46: Describe what you saw? A46: They went out and brought the metal, it required metal plates and I observed them, Mark Akerman, Ross Boyer, Mark Quigly and Chuck authorised the building of it; building the whole thing, cutting away the back of the truck and welding and bolting the plates to the back of the truck. This occurred at the depot. I remember it was summer and you weren't allowed to weld on site because of the fire danger. I can't quite remember but the Water Board must have given approval for them to do the welding on site. Q47: Can you describe what the towing hitch looked like? A47: I know it wasn't a quick hitch but I can't remember what it was called. I know theirs was a grabber, which locked onto a ring. Q48: Do you know if a competent person examined the towing hitch after it was fitted on to the back of the truck? A48: No. The person on site who looked at it, an Indian bloke, was the engineer we were using for drilling, he wasn't the proper engineer for certifying a hitch on the truck. 30 Particularised failure (iii) as pleaded above necessitates a conscious awareness and/or knowledge on the part of Mr Steve Akerman that 'the braking system of the trailer was inadequate'. On the evidence, the clear inference is that Mr Akerman was not only absent but he had previously agreed that the mud plant should remain located at the project base and if it was to be moved, it was to be done by a low loader. On that point, I refer to the statement of Mr Steve Barker tendered in these proceedings. Mr Barker was the overall Project Manager for the PSPAT Alliance Team. He dealt with Mr Akerman on behalf of the corporate defendant in relation to the contract negotiations including safe work method statements. When interviewed by Inspector Belley, Mr Barker said: Q 67. What can you tell me about the mud trailer that was used by Akerman Apache and was involved in the fatality of Ross Boyer? A 67. All of their equipment was brought to our Helensburgh compound by low loader and moved from site to site on low loader. During pre-contract negotiations I brought it to their attention the very steep and narrow access roads around the site and to maybe not drive their directional drilling equipment on the road but to transport it by low loader. Steve Akerman agreed to that. He was the one I conducted the contract negotiations with. It was written into their safe work method statements. Also for that particular site at Otford weir our environmental officer brought up concerns that we were in a very low lying part of the creek and they would be there a number of weeks, for about a month. An environmental management plan that was prepared for the site showed that the mud plant would be set up on site and we eventually agreed that the mud plant would remain at Helensburgh depot because of the danger of floods. Everything we set up stated that the mud plant would be set up at Helensburgh, I didn't know that they were driving it down to the site at the weir. 31 Considering the above, I am not satisfied there is sufficient evidence to prove beyond reasonable doubt that particularised failure (iii) as pleaded is established in relation to Mr Akerman. Accordingly, it is dismissed. 32 I am satisfied, as a director of the corporate defendant and in accordance with s 26(1), the defendant is taken to have contravened the same provisions constituting an offence under s 10(2) of the Act as the corporate defendant. Accordingly, the offence charged against the defendant, with the exception of particularised failure (iii), is proved. 33 My findings in relation to the other three co-defendants in the parallel proceedings in relation to objective seriousness and the respective parity of the three personal defendants are relevant here. On that point, I refer to my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370 where I said: [60] It is necessary at this point to consider parity in relation to the relative culpability as between the two defendants and as between the two defendants and Mr Akerman. [61] It is apparent Mr Herbert and Mr Walker, as non-executive directors of the corporate defendant, took something of a back seat role in the day to day operations of the work being performed by the company under the PSPAT contract. Accepting the evidence of Mr Herbert and Mr Walker on this point, Mr Steve Akerman was the driving force and project manager responsible for getting the work done safely, on budget and on time. He was a visible and hands on presence at the workplace notwithstanding he was not there when the accident with the truck and the mud plant occurred. Whether Mr Akerman would have sanctioned what was done and the manner in which it was done is simply not known. The evidence that there is suggests that Mr Akerman was very aware of workplace safety and, as a general assessment, ensured the observance of safe workplace standards in the work being undertaken. [62] On this point, the view of Mr Barker, project manager for the PSPAT project as referred to in the agreed facts, warrants repeating as follows: [33] Steven Barker (Barker), Projects Manager employed by Sydney Water and PSPAT, was responsible for the overall project. In an interview with WorkCover following the accident he said that he observed that there were very few problems with the first defendant's safety performance. Its quality systems were working and it worked very well within the environmental management plan. [34] It was Barker's responsibility to ensure the plant that sub-contractors used on the project was safe to use up to and on 3 November 2003. [35] Barker and Steve Akerman agreed that the directional drilling equipment should not be driven on the road but rather transported by low loader and this was included in safe work method statements. Barker and Steve Akerman also drew up an environmental management plan that was prepared for the project site which showed that the mud plant would be set up on site. [36] Barker and Steve Akerman agreed that the mud plant would remain at the Helensburgh Depot because of the danger of floods. [63] I accept that, relative to Mr Akerman, the culpability of Mr Walker and Mr Herbert is less. They were obviously content to allow Mr Akerman to do all the running on the project, acknowledging that the quid pro quo for them was, as directors of Apache Earthworks, they stood to gain if the joint venture project, under Mr Akerman's direction, was a success. Likewise, in a similar fashion, Mr Akerman and his company. Having said that, Mr Herbert and Mr Walker cannot avoid their responsibilities and ultimate culpability, which their plea of guilty acknowledges, simply because of their more arms length role vis-a-vis Mr Akerman, in the workplace activities of the corporate defendant. Statutory defences

34 Turning now to the statutory defences available under s 26(1)(a) or (b) of the Act. 35 Section 26 of the Act provides:

26 Offences by corporations - liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 36 On 31 July 2003, the corporate defendant, then referred to as Akerman-Apache Alliance, entered into a contract with PSPAT. As generally described, the nature of the agreement entered into by Akerman-Apache was to provide directional drilling services and civil construction services for the sewerage project, particularly in relation to the installation of pipelines in the Otford and Stanwell Tops region. That work required the stripping and stockpiling of topsoil, excavation, installation of pipes, backfilling, restoration, insulation and maintenance of erosion and sedimentation controls, investigation and the installation of gravity mains by horizontal directional drilling and open cut trenching methods. 37 The work being undertaken by the joint venture was overseen predominantly by Mr Akerman. According to Mr Jasper in his statement, Mr Akerman was the on-site manager when he was in Australia and Mr Chuck Nelson was when Mr Akerman was absent. According to Mr Jasper: 'It was obvious that Steve Akerman was in control of the job.' 38 Further, according to Mr Jasper, on a daily basis during his time when he was engaged to perform services for the joint venture, he was supervised either by Mr Steve Akerman or Mr Chuck Nelson. The hands-on involvement of Mr Akerman in the work being undertaken by the joint venture is corroborated in the statement of Mr Jay Haigh, another employee contracted to work with the joint venture company. 39 On the material before me, I am satisfied the defendant was very much able to influence the conduct of the corporation in relation to the contraventions grounding the offence of the corporate defendant under s 10(2) of the Act. As the statement of Mr Jasper explains, the defendant was the project manager for the work being undertaken by the corporate defendant. He was present at the worksite frequently, supervising the work being performed and issuing directions although, as I found, there is no evidence to show he was directly involved in the decision to shift the mud plant using the truck in the manner in which that was undertaken. Mr Akerman was certainly aware of the obligations of the corporate defendant to undertake the work the company was undertaking free of risks to safety. That obligation was reinforced by the corporate defendant's contractual obligations under the project which Mr Akerman was predominantly responsible for negotiating with Mr Barker. As Mr Barker explained: A55: My duties were to ensure that the project plan, which covered design, procurement, and construction, was correctly and fully implemented. For construction activities that meant implementing an incident management plan, safety management plan, an environmental management plan, the customer home plan and the construction plan. For example, the customer plan involved a site visit and interview with 600 families affected by the scheme. The Project Manager, Safety Officer, Site Engineers, Site Supervisors and the Construction Manager implemented a comprehensive project safety plan. It started with review of subcontractor safety plans during tendering, and on site it involved site inductions, checking equipment and labour accreditation, reviewing subcontractor safety plans and monitoring their implementation, toolbox talks, and safety inspections. 40 Given all of the above, there is no evidence of any actions or otherwise on which the defendant is able to rely such as to establish a defence under s 26(1)(a) of the Act. 41 I come to the same conclusion in relation to s 26(1)(b). That is, there is no evidence to establish, as a director of the corporate defendant, the defendant took any steps to prevent the contravention by the corporate defendant. He was certainly in a position to do so. As project manager for the work being undertaken, the defendant was directly complicit in the acts and omissions of the corporate defendant that gave rise to the offence under s 10(2). Notwithstanding the agreement Mr Akerman had with Mr Barker in relation to the fixed location of the mud plant, the system of work that was in place at the time simply failed to ensure that instructions were in place to ensure the mud plant remained at the project base and if it was to be moved, it would be done using a low loader. As project manager, Mr Akerman was directly responsible to ensure such instructions were in place and complied with. 42 In all the circumstances, there is no evidence the defendant is able to rely on, of any actions on his part such as to establish a defence under s 26(1)(b) of the Act. 43 In conclusion, I am satisfied that, on 3 November 2003 the defendant, Steven Carl Akerman, was a director of Akerman-Apache (Joint Venture) Pty Limited, ACN 105 825 821. On that day and in that capacity and by virtue of s 26(1) of the Occupational Health and Safety Act 2000, he contravened s 10(2) of the Occupational Health and Safety Act 2000 in relation to the plant as particularised and, with the exception of particularised failure (iii), in the circumstances as particularised. I find the offence proved.

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