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[2005] NSWIRComm 425
Industrial Relations Commission (NSW)
2005-11-24
Schmidt J, Mr P
Original judgment source is linked above.
Industrial Relations Commission of New South Wales in Court Session
CITATION: WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) [2005] NSWIRComm 425
PROSECUTOR: WorkCover Authority of New South Wales (Inspector Maltby)
DEFENDANT: PARTIES: Josef & Sons Contracting Pty Limited (In Liquidation) (ACN 002 844 537)
FILE NUMBER(S): Matter Numbers IRC 5440, 5441, 5442, 5445, 5446 and 5447 of 1999
Occupational Health and Safety - prosecutions under sections 15(1) and 16(1) of the Occupational Health & Safety Act 1983 - exparte sentence hearing - defendant in liquidation - three sets of charges - principles of totality and parity - general deterrence - defendant found guilty of charges - penalties imposed CATCHWORDS:
Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983
Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317 Inspector Atkins v Network Production Personnel Pty Limited [2004] NSWIRComm 71 Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited (2003) 128 IR 204 CASES CITED: WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) [2005] NSWIRComm 94 WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) [2005] NSWIRComm 125 WorkCover Authority of NSW (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323
PROSECUTOR: Mr P Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: Moray & Agnew
MATTER NUMBER IRC 5440 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 MATTER NUMBER IRC 5441 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 MATTER NUMBER IRC 5442 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 MATTER NUMBER IRC 5445 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 MATTER NUMBER IRC 5446 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 MATTER NUMBER IRC 5447 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983
1 Judgment was given in this matter on 31 March 2005 (WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) [2005] NSWIRComm 94). The defendant was found guilty of four offences relating to two periods - 10 November 1995 and what occurred between that day and 4 December 1995. The prosecutor was put to an election in relation to four charges concerning events on 4 December 1995. In a judgment of 24 April (WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) [2005] NSWIRComm 125), the defendant was found guilty of two charges in respect of the events of that day. This judgment deals with penalty and costs for all six offences. 2 The charges provided: 10 November 1995
On or about 10 November 1995 at Kogarah in the state of New South Wales, the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Bruno Brdracic, Hasan Alagic, Chris Stoeski, Daniel Josef, Gorco Trajevski and Bernath Adler contrary to section 15(1) of the Occupational Health & Safety Act , 1983 in that it:
i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;
ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed.
iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace; (a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) where earthmoving machines were to be operated;
vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) risks associated with work close to a charged gas supply line;
(c) type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are: 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU). 2. On or about 8 November 1995 Abigroup engaged the Defendant to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited (AGL) to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended the KSU and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant failed to have appropriate persons at the KSU to liaise with Princi concerning the disconnection of the gas supply line. 8. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 9. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 10. The Defendant failed to adequately protect the charged gas supply line on the KSU. 11. The Defendant failed to adequately identify the charged gas supply line on the KSU. 12. The Defendant failed to adequately mark the charged gas supply line on the KSU. 13. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 14. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
On or about 10 November 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to section 16(1) of the Occupational Health & Safety Act , 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant: i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;
ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed.
iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated;
v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(c) where earthmoving machines were to be operated;
vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line;
(b) risks associated with work close to a charged gas supply line;
(c) type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are : 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU).
The Defendant failed to have appropriate persons at the KSU to liaise with Princi concerning the disconnection of the gas supply line.
The Defendant took no steps to remove a charged gas supply line from destruction area where earth moving machines were to be operated.
The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
The Defendant failed to adequately protect the charged gas supply line on the KSU.
The Defendant failed to adequately identify the charged gas supply line on the KSU.
The Defendant failed to adequately mark the charged gas supply line on the KSU.
The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.
Matter Numbers IRC 5440 of 1999 Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to section 16(1) of the Occupational Health & Safety Act , 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:
(i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provided and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated;
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located;
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace:
(a) within one metre of a building to the demolished;
(b) that was not adequately protected or identified.
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at KSU adequate information about the: (a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are: 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU).
The Defendant was aware of where the gas supply line had been cut and capped.
The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995.
Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building.
The Defendant used a stake to mark the gas supply line when it became exposed.
The defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated.
The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
The Defendant failed to adequately protect the charged gas supply line on the KSU.
The Defendant failed to adequately identify the charged gas supply line on the KSU.
16 The Defendant failed to adequately mark the charged gas supply line on the KSU.
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated;
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located;
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified;
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line;
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are: 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU).
On 4 December 1995 at Kogarah in the state of New South Wales, the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Bruno Brdracic, Hasan Alagic, Chris Stoeski, Daniel Josef, Gorco Trajevski and Bernath Adler contrary to section 15(1) of the Occupational Health & Safety Act , 1983 in that it:
(i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated.
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located.
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(viii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:
(b) the risks associated with work adjacent to the charged gas supply line;
(c) the type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are : 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU).
The Defendant was aware of where the gas supply line had been cut and capped.
The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995.
Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building.
The Defendant used a stake to mark the gas supply line when it became exposed.
On 4 December 1995 the Defendant instructed Robert Campbell to operate an excavator.
On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter.
The excavator was used to create the batter in the area where the gas supply line was situated.
The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU.
The Defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah.
The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape.
At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ.
Between 2.00 p.m. and 4.00 p.m. on 4 December 1995 the Defendant was advised of the explosion which had occurred. 20. At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ.
On 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to section 16(1) of the Occupational Health & Safety Act , 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:
(i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was affected in a position which was safe and without risks to health;
(ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed;
(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;
(iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated;
(v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located.
(vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished;
(b) that was not adequately protected or identified;
(vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) the risks associated with work adjacent to the charged gas supply line; (c) the type of work that might be carried out adjacent to the charged gas supply line. The Particulars of the charge are: 1. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading (KSU).
The Defendant was aware of where the gas supply line had been cut and capped.
The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995.
Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building.
The defendant used a stake to mark the as supply line when it became exposed.
On 4 December 1995 the Defendant instructed Robert Campbell to operate an excavator.
On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter.
The excavator was used to create the batter in the area where the gas supply line was situated.
The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU.
The Defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line.
On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah.
The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape.
At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ.
Between 2.00 p.m. and 4.00 p.m. on 4 December 1995 the defendant was advised of the explosion which had occurred.
At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ.
The gas explosions were of sufficient extent and severity that persons were injured thereby.
The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous.
The Defendant failed to adequately protect the charged gas supply line on the KSU.
The Defendant failed to adequately identify the charged gas supply line on the KSU.
The Defendant failed to adequately mark the charged gas supply line on the KSU.
The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.
The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. The Evidence 3 Reliance was placed on the statement of facts summarising the evidence, appearing at [18] in the March judgment. The statement provided:
Inspector Kathleen Maltby of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Josef & Sons Contracting Pty Ltd (in liquidation).
Josef & Sons Contracting Pty Limited (In Liquidation) [ACN 002 844 537] ("Josef & Sons Contracting") is a corporation duly incorporated in New South Wales with its registered office at 62 Croydon Street, Cronulla in the State of New South Wales, formerly of 118 Palm Avenue, Leeton in the State of New South Wales. Josef & Sons Contracting Pty Ltd was voluntarily placed into liquidation in May 1996.
Josef & Sons Pty Limited [ACN 001 283 601] ("Josef & Sons") is a corporation duly incorporated in New South Wales with its registered office at 11 Carlisle Street, Bondi NSW 2026.
Abigroup Contractors Pty Limited [ACN 000 201 516] ("Abigroup") is a corporation duly incorporated in New South Wales with its registered offices at First Floor, 25-29 Bridge Street, Pymble NSW 2073.
AGL Gas Networks Limited [ACN 003 004 322] ("AGL") is a corporation duly incorporated in New South Wales with its registered office at AGL Centre, 111 Pacific Highway, North Sydney NSW 2060.
The State Rail Authority of New South Wales ("SRA") is a statutory authority constituted pursuant to Section 4 of the Transport Administration Act, 1988 (NSW).
SRA was the relevant Authority which owned the Kogarah Railway Station and its surrounding areas, including shops 3, 5, 7 and 9 Railway Parade, Kogarah. Prior to demolition in 1995, these shops operated with the trading names: (a) Shop 3 - Railway Fruit Market;
The premises immediately to the south of 3, 5, 7 and 9 Railway Parade on the western side of Railway Parade and the border of the railway line were as follows: (a) No 11 Railway Parade - Mei Yee Fashions Ladies Dress Shop;
(b) No 13 Railway Parade - Family Amusement Zone (FAZ) being an electronic amusement centre and games parlour;
(c) No 15 Railway Parade - St George Tobacconist Shop;
(a) The SRA required the Kogarah Railway Station and its environs to be upgraded. (b) The project site was called the Kogarah Station Upgrading ("KSU"). The project included demolition of the concrete steps at the entrance to the Station on the eastern side; the uplifting and removal of pavers in the mall area outside Kogarah Town Centre; demolition of retail shops 3, 5, 7 and 9 Railway Parade, Kogarah, and construction within the KSU and the airspace above.
(a) A group of companies formed a joint venture, the Station Upgrade Joint Venture ("SUJV") for the purpose of tendering to the SRA for the right to provide services for upgrades to various metropolitan stations. (b) The SUJV was constituted by the companies TMG International Pty Limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited and three further corporations, Arup Partner Pty Limited, Ove Arup Consult Pty Limited and Ove Arup Pty Limited. (c) Arup Partners Pty Limited, Ove Arup Pty Limited and Ove Arup Consult Pty Limited traded pursuant to the business name Ove Arup & Partners. (d) The SUJV in furtherance of the joint venture operated and traded under the name of Capital Works Management ("CWM") which was registered as a trading name on 15 December 1994.
(a) The SRA engaged SUJV (later renamed CWM) on 29 July 1994 for the design, tender process and the supervision to completion of the upgrading of a number of SRA facilities including the Kogarah Station Upgrading. (b) SUJV was appointed as the project manager and the superintendent of the contract at the KSU between the SRA and Abigroup.
(a) Abigroup contracted with the SRA to carry out work at the KSU. (b) The contract was entered into on 18 October 1995.
On or about 8 November 1995 Abigroup sub-contracted with Josef & Sons Contracting to perform work including demolition work. Josef & Sons Contracting, pursuant to its obligations under the demolition contract, undertook to provide the management, skill, equipment and labour for the demolition of 2 sets of stairs and shops 3, 5, 7 and 9 Railway Parade, Kogarah.
Josef & Sons was the owner of certain equipment including a 7-8 tonne Daewoo excavator. This excavator was utilised at the KSU.
There was an arrangement between Josef & Sons Contracting and Josef & Sons whereby Josef & Sons leased, hired or otherwise made available to Josef & Sons Contracting equipment used in the demolition work to be carried out under the contract between Abigroup and Josef & Sons Contracting, including but not limited to the 7-8 tonne Daewoo excavator.
Robert Josef and Susan Josef, both formerly of 11 Carlisle Street, Bondi, presently 2/24 Spencer Street, Rosebay, were at all material times the Directors of: (a) Josef & Sons Contracting, and
(b) Josef & Sons. 17. AGL: (a) carried on business as a supplier of gas;
(b) was the owner of gas supply lines in Railway Parade, Kogarah;
(c) was the owner of the gas within the said gas supply lines;
(d) had the care, control and management of the said gas supply lines and of the supply of gas within the lines.
(a) In and around the Kogarah station area gas was reticulated by means of a yellow nylon tubing, known as "Goldline", "Rilsan" or "Rilsanol". (b) Prior to the use of Goldline, gas was reticulated through galvanised metal pipes.
(c) When Goldline was laid it was commonly inserted into the existing galvanised metal pipe gas reticulation system. (d) Goldline "elbow joints" were utilised to alter the direction of the gas pipe. Where such elbow joints were used, they were sealed to the adjacent sections of Goldline with glue. In order to insert these elbow joints, it was necessary to cut and remove a section of the existing galvanised metal pipe.
(a) Prior to the commencement of work at the KSU, a gas supply originated on the eastern side of Railway Parade. (b) It crossed the roadway in a westerly direction to a point directly outside the Family Amusement Zone ("FAZ") at No13 Railway Parade.
(c) It then made a right angle turn and continued along the building alignment of Railway Parade in a northerly direction for approximately 15 metres.
(d) It then made a further right angle turn to the west to enter 7 Railway Parade, Kogarah which were commercial premises known as "Kogarah Seafood". (e) This gas supply line was 32mm in diameter and had an approximate operating pressure of 210kPa.
At all material times Abigroup employed: (a) Maurice Bolger as Project Manager for the KSU;
Josef & Sons Contracting employed: (a) Daniel Josef as a Project Manager;
Robert Josef, as director of Josef & Sons Contracting and Josef & Sons performed management and supervisory roles in relation to the KSU.
Daniel Josef, as an employee of Josef & Sons Contracting, performed management and supervisory roles in relation to the demolition work at the KSU.
At all material times Robert Campbell was engaged by Josef & Sons Contracting as an operator to drive plant owned by Josef & Sons and made available to perform work for Josef & Sons Contracting.
On or about 30 October 1995, Abigroup was granted access to the KSU by the SRA, and in turn Abigroup granted access to Josef & Sons Contracting.
On or about 1 November 1995 Luis Bustamante and Robert Josef inspected the KSU and had a discussion relating to the disconnection of services including gas, electricity and water.
On or about 8 November 1995, a service order call was placed to AGL for the disconnection of the charged gas supply to 3 and 7 Railway Parade, Kogarah.
(a) On or about 10 November 1995 John Princi, who was employed by AGL, attended the KSU and inspected No.3 and No.7 Railway Parade. (b) Princi disconnected the gas supply attached to No 7 Railway Parade, Kogarah by cutting and fitting a cap to the Goldline.
(c) Princi was unable to find a gas supply line to number 3 Railway Parade, Kogarah.
(a) The charged gas supply line, having been cut and capped, remained in the KSU at all times up to and including 4 December 1995. (b) Located approximately 1.5 metres from the cut and capped end was an elbow joint.
(c) The next elbow joint to the south was approximately 15 metres away, under the footpath directly in front of FAZ. The Goldline between these two elbow joints was housed inside the galvanised metal pipe.
(a) After 10 November 1995 and before 4 December 1995 shops 3, 5, 7 and 9 were demolished by Josef & Sons Contracting by way of mechanical felling using an excavator, and manual felling. (b) Mr Alfred Begg, an employee of Reid's Excavations, was engaged by Josef & Sons Contracting to assist in the demolition work during this period.
Between 21 and 25 November 1995 a section of the Goldline gas supply line became exposed as an excavator pulled away the footings from shop No7 within the KSU.
(a) After the gas line became exposed a stake and some material was placed by Christopher Stoeski and Luis Bustamante near its capped end to mark it. (b) The stake was a "star picket".
(c) Photographs were taken by Robert Josef on 24 November 1995, showing the gas pipe marked with the star picket and material.
(d) No signage was placed near the exposed gas supply line.
(a) On or about 30November 1995 approximately 200mm of the pipe was exposed in a shallow hole which was approximately 300mm x 300mm on the ground within the KSU. (b) On 30 November 1995, Abigroup (by way of facsimile from Maurice Bolger to Robert Josef) directed Josef & Sons Contracting to accelerate their work to ensure completion by the programme date.
(a) On Saturday 2 December 1995, a 30 tonne excavator was used by Josef & Sons Contracting to complete the demolition of the concrete steps, located on the eastern side of the KSU and approximately 18 metres north of Mei Yee Fashions. (b) Upon completion of the demolition of the concrete steps the 30 tonne excavator was removed.
(a) Thereafter, an orange 7-8 tonne "Daewoo" excavator, which was owned and supplied by Josef & Sons, was brought on to the eastern side of the KSU to complete the demolition and clean up of the stairs. (b) This was used to remove rubble left by the 30 tonne excavator.
(d) Removal of the rubble was not completed on Saturday, 2 December 1995.
Monday 4 December 1995 was a scheduled picnic day for the construction industry but work on the KSU by Josef & Sons Contracting continued on that day.
On 4 December 1995, Robert Campbell, Bruno Brdaric, Hasan Alagic, Christopher Stoeski, Gorco Trajcevski, Bernath Adler, Daniel Josef and Robert Josef attended the KSU and performed work on behalf of Josef & Sons Contracting.
When the rubble had been removed on 4 December 1995, Christopher Stoeski directed Robert Campbell to use the Daewoo excavator to cut a batter in a north-south direction from the point where the steps had been located.
(a) Whilst cutting the batter between 12.30 p.m. and 1.30 p.m. on 4 December 1995 Robert Campbell operated the excavator in an area where the charged gas supply line was located. (b) The bucket of the excavator came into contact with the charged gas supply line.
(c) The contact between the bucket and the charged gas supply line caused the elbow joint located outside FAZ to become detached from the main gas pipe supplying gas to that point.
Between 1.00 p.m. and 2.00 p.m. a strong smell of gas was noticed by John Hatzikiriakos, the proprietor of Oasis Seafood, and Wally Afiouni, the proprietor of St George Tobacconist.
(a) John Hatzikiriakos and Wally Afiouni separately approached workers at the KSU and spoke to them about the strong smell of gas. As a result of their enquiry Bruno Brdaric and Christopher Stoeski carried out an inspection of the capped end of the gas supply line located within the KSU. Unable to locate any gas leaking from the gas supply line within the KSU, they attended Oasis Seafood with John Hatzikiriakos. (b) When outside FAZ they saw and heard gas escaping through a crack in the pavement.
Wally Afiouni made a "000" phone call at approximately 1.45 p.m. and was put through to the Police.
Christopher Stoeski directed Bruno Brdaric to put up a mobile metal barricade in the area where the gas was escaping through the crack in the pavement outside FAZ.
At approximately 1.55pm Bruno Brdaric placed the mobile scaffolding in position and attempted to direct pedestrians away from the area.
(a) At approximately 1.55 p.m. Constable Adams and Constable Stephens attended in a Police motor vehicle from Kogarah Police Station. (b) Whilst stationary at the lights at the corner of Railway Parade and Montgomery Street, they were able to smell gas.
At approximately 1.57 pm the Police Officers inspected the crack in the pavement outside FAZ where gas was escaping.
The Police Officers called for further Police to attend and attempted to direct people away from the area.
After it was determined that gas was leaking, Christopher Stoeski, Bruno Brdaric, Gorco Trajcevski and Robert Campbell moved the excavator from the KSU onto the open mall area towards the northern end of Railway Parade.
(a) At approximately 1.55 p.m. Christopher Shuetrim, an AGL employee at the Communications Centre in Alexandria received a telephone call from a male who identified himself to be from Josef & Sons Contracting. (b) This person reported a gas leak at Railway Parade, Kogarah.
(c) Christopher Shuetrim obtained the man's mobile telephone number, which was the telephone number of Robert Josef.
(d) He then despatched Luigino Galasso and Damien Lindsay, an AGL mobile maintenance crew, to Railway Parade, Kogarah.
At approximately 2.00 p.m. an explosion occurred in and about the FAZ.
The explosion blew out the front of FAZ causing damage to a number of shops in the immediate vicinity.
As a result of the explosion, Mina Bakhoum and Gregory Maybury sustained fatal injuries. At least 16 other persons sustained burn injuries.
Between 3.30 p.m. and 4:00 pm on 4 December 1995, a second explosion occurred inside FAZ.
A number of Fire Brigade officers were inside FAZ when the second explosion occurred.
Approximately five fire brigade officers sustained burn injuries as a result of this second explosion.
A Coronial inquest and inquiry was held into the deaths of Mina Bakhoum and Gregory Maybury between 9 December 1996 and 14 May 1997. The Coroner's report was delivered on 17 October 1997.
The prosecutor's case The hearing again proceeded ex-parte. Mr Skinner of counsel, appearing for the prosecutor, raised the utility of imposing a sentence in a case where the defendant is in liquidation, but submitted that principles of deterrence, especially general deterrence, given the grave nature of the offences in question, required that sentences be imposed. Reliance was placed on the approach adopted by Boland J in Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57 and Inspector Atkins v Network Production Personnel Pty Limited [2004] NSWIRComm 71. I accept the views his Honour expressed and propose to impose sentences, notwithstanding the liquidation of the defendant. 4 It was submitted that, given the various entities involved in the relevant events and the various charges which had resulted in convictions, questions of parity in sentencing here arose for consideration. The risks to safety in question were very serious, leading finally to an explosion in the gas system at Kogarah Railway station, in which a number of people were injured, two were killed and many others put at risk. The sentencing judgment given by Kavanagh J in WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited (2003) 128 IR 204 was relied on in several respects, although it was noted that the total penalties then imposed were reduced on appeal. (See Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2004) 135 IR 317.) 5 It was also submitted that the maximum penalty in each case here is $500,000. (See Kavanagh J in Abigroup at [46] to [47]). The defendant had a number of prior convictions. In the circumstances s 51A of the Act was not applicable (see Kavanagh J in Abigroup at [48]). 6 It was further submitted that consistently with the view taken by Kavanagh J in Abigroup and accepted on appeal, that the most serious of the offences here in question were those which occurred on 4 December and the least serious, those committed on 10 November. The sentences finally imposed for the offences with which Abigroup was convicted in relation to the same three periods was $300,000 each, in respect of the 10 November offence; $350,000 each for the 10 November - 4 December offences and $400,000 for the 4 December offence, a total of $1.7 million. Application of the totality principle reduced the penalties to $250,000 and $300,000 in the case of the first four offences a total of $1,500,000. On appeal the fines were reduced to $175,000 for the 10 November offences; $225,000 for the 10 November to 4 December offences and $300,000 for the 4 December offence. The total penalties imposed were $1,100,000. 7 It was argued that these penalties were imposed after application of the principle of totality to both the three periods in question and to the charges brought in respect of each of these periods, under both s 15 and s 16 of the Act, given the overlap in the charges which arose in these two ways. The Full Bench approached the application of the totality principle with greater leniency than Kavanagh J. A similar approach was adopted in relation to another offender charged in connection with the same events in WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2003] NSWIRComm 421, where however, the penalties there imposed were increased by the Full Bench on appeal - WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. It was accepted that a similar approach to totality must be adopted here. 8 It was also submitted that consistently with the parity principle, given the seriousness of these offences, substantial sentences must also be imposed, albeit with discounts for totality. That Abigroup was convicted in respect of five offences rather than six, (having no employees on the site on 4 December), would also affect the total penalty imposed in this case. 9 The prosecutor urged that account be taken of the fact that Abigroup was the head contractor on site, who had greater responsibility for the whole condition of the site, compared to this defendant. Also to be taken into account, however, was that this defendant was doing the actual work in question, which required the cutting off of the gas which led to the gas pipe being breached on 4 December, by work it was performing that day. In these circumstances, the culpability of this defendant was argued to be greater than that of Abigroup. Also of relevance was that in the proceedings before Kavanagh J, Abigroup brought forward evidence of subjective features which were taken into account in assessing penalty. There was no such evidence here. Although it was accepted that another matter relevant to be taken into account was the fact that this was a smaller company than Abigroup and that it was in liquidation. It followed that specific deterrence did not arise as an element to be taken into account in determining sentence. 10 On the evidence, it was submitted that the consequences of the risk here in question had crystallised in a severe accident, with very serious consequences for a number of people in the vicinity. The offences were serious and warranted the imposition of heavy penalties. Foreseeability was relevant, particularly in relation to the inadequate steps taken to mark a live gas pipe on a building site. The marker was moved, so that there was nothing to guide or warn the tractor operator who breached the pipe on 4 December. The idea that the steps taken had accorded with industry practice at the time was dealt with by Kavanagh J in Abigroup at [22]. A similar approach was urged here. Consideration
11 In the March judgment, I noted that while of the view that not all aspects of the particulars of each offence charged had been made out, I was of the view that the offences had been proven to the requisite degree. I approach the sentencing process with those conclusions in mind. 12 The starting point for the determination of the sentences to be imposed, consistently with the Crimes (Sentencing Procedure) Act (1999), is the nature and seriousness of the offences proven. On the evidence, there can be no doubt of the seriousness of the offences in question. The charges were concerned with the risks to safety to which employees and others were exposed at various junctures, when the defendant took entirely inadequate steps to deal with a live gas pipe on a construction site, situated at a major metropolitan railway station. The gas pipe was cut off at a point within a construction site, where heavy machinery was to be operating, demolition work was to be undertaken and construction to follow. The steps taken plainly did not ensure safety. Given this deficiency, the clearly inadequate steps taken to mark and identify where the live pipe was situated on this site, as work was undertaken between 10 November and 4 December, led perhaps unsurprisingly, to the point where the live gas pipe lay in the ground, its position entirely unmarked. On 4 December, when most fortuitously, not many people were working on the site, the pipe was disturbed during excavation work. The resulting gas leak and the explosion which followed led to the death of two people and the injury of others. The consequences of the inadequate steps taken by the defendant could plainly have been even worse. I am entirely satisfied, however, that these offences fell at the upper end of the spectrum and that this must be reflected in the penalty imposed. In terms of culpability, I also accept, overall, that this defendant had greater responsibility for those events, than did Abigroup, having itself taken dangerous steps and failed to take necessary steps to ensure safety at the site, rather than having merely supervised the work in question, as head contractor.
13 I agree with the views reached by Kavanagh J in relation to the relative seriousness of the three sets of charges and approach the sentences to be imposed in that light. The most serious offences occurred on 4 December, the least on 10 November. I also accept the submissions of the prosecutor, that the parity principle requires consideration to be given to the sentences finally imposed upon Abigroup, although noting that on 4 December, it was convicted of only one offence, having no employees on site that day. On the evidence, I take the view that the culpability of this defendant and Abigroup was similar for the first period, but that this defendant's culpability for the offences in the later two periods was greater than that of Abigroup. 14 I also accept that general deterrence is an important element of the sentence in this case. Given that the defendant is in liquidation, specific deterrence does not have a role to play, as the prosecutor accepted. 15 I also have taken note that this defendant is of the nature submitted by the prosecutor, namely that it is a smaller corporation than that of Abigroup, although there was but little evidence as to such matters and it is in liquidation. I am satisfied that the latter cannot properly preclude the imposition of a heavy sentence in the circumstances here before the Court. There were no other subjective matters led. The evidence led as to the defendant's record must also be taken into account. 16 In all of the circumstances, I have concluded that the penalties for each offence should be a total of $2,180,000.00:
Matter Number IRC 5445 of 1999 $300,000 Matter Number IRC 5446 of 1999 $300,000 Between 10 November and 4 December 1995
Matter Number IRC 5440 of 1999 $365,000 Matter Number IRC 5447 of 1999 $365,000 4 December 1995
Matter Number IRC 5441 of 1999 $425,000 Matter Number IRC 5442 of 1999 $425,000 17 The principle of totality must also be applied to those penalties. As the Full Bench observed on appeal in Abigroup, in this case too, there was a considerable overlap between the six offences in question in two respects. Firstly, overlap of the charges in respect of the three periods and secondly, the two sections under which the charges were laid in respect of each of the three periods. This must be taken into account in determining final penalty. Applying the principle of totality, accordingly, I have concluded that the penalties should be reduced to a total of $1,360,000.00:
Matter Number IRC 5445 of 1999 $175,000 Matter Number IRC 5446 of 1999 $175,000 Between 10 November and 4 December 1995
Matter Number IRC 5440 of 1999 $230,000 Matter Number IRC 5447 of 1999 $230,000 4 December 1995
Matter Number IRC 5441 of 1999 $275,000 Matter Number IRC 5442 of 1999 $275,000
18 The prosecutor also sought an order for party/party costs and was given liberty to file submissions as to the proper costs order to be made. No submissions were filed, but on 2 September an outline of costs was filed. In the circumstances, I referred those costs to the Registrar for assessment, but the prosecutor has not responded to the Registrar's directions. In these circumstances the Court is not in a position to make a costs order and I have determined to proceed to judgment.
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WorkCover Authority of NSW (Inspector Maltby)
Josef & Sons Contracting Pty Limited
(2004) 135 IR 317
(2003) 128 IR 204