WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited

WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited - [2005] NSWIRComm 94 - NSWIRComm 2005 case summary — Zoe

[14]

1 In a judgment of September 2002, I concluded that orders pursuant to s4 of the Supreme Court (Summary Jurisdiction) Act 1967 should be made in these matters, even though the defendant company was in liquidation. (WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) & Ors [2002] NSWIRComm 226). The defendant was accordingly charged with various breaches of ss15 and 16 of the Occupational Health and Safety Act 1983 ('the OHS Act'). 2 There was no appearance or plea entered for the defendant and the charges were later pressed at an ex-parte hearing, where it was submitted for the prosecutor that the company being in liquidation did not affect its legal personality, merely its management (Section 601AD(1) of the Corporations Act 2001). The evidence showed that the defendant has not been deregistered. I was satisfied, in those circumstances, that there was no impediment to the Court exercising its jurisdiction under the OHS Act in these matters. 3 This approach is consistent with that taken in Inspector Jones v T Helsby & Sons Contracting Pty Ltd (Administrator Appointed) [2004] NSWIRComm 5 per Boland J, albeit there the defendant corporation was in administration, not liquidation. The reasoning in my earlier judgment dealt with this. I do not repeat it here. 4 The hearing proceeded ex-parte consistently with the approach taken in T Helsby & Sons Contracting Pty Ltd; Inspector Sharpin v Enpro Hearing Pty Ltd [2002] NSWIR Comm 211 and Inspector Vierow v LBJ Crane & Rigging Pty Ltd [2003] NSWIR Comm 152. 5 The hearing was, however adjourned, because the Full Court was reserved in an appeal from Kavanagh J, in a prosecution arising out of the same events that gave rise to these prosecutions. Judgment on the appeal was given in Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Insp Maltby) (2004) 135 IR 317. That appeal raised for consideration a number of the submissions advanced in these proceedings by the prosecutor. The prosecutor indicated that it would, of course, accept the outcome of the appeal in relation to those matters. I accordingly accepted the submission that the prosecution should be entitled to make further submissions in these proceedings, in light of the decision of the appeal bench, once given. 6 After the Abigroup Contractors judgment was given, the prosecutor filed further written submissions in January 2005. Final submissions were filed on 28 February, where reference was also made to other appeal judgments given after the hearing, in Edwards Madigan Torzillo Briggs Pty Ltd v Mansell [2004] NSWIRComm 162 and WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. These, too, had been referred to at the earlier hearing. The charges 7 The charges related to three periods. The events of 10 November 1995; what occurred between that day and 4 December and the events of 4 December. They respectively provided:

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8 Mr Skinner, counsel for the prosecutor, noted that Kavanagh J had dealt with prosecutions brought against co-defendant contractors in WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2003) 126 IR 1. He submitted that there her Honour had similarly drafted prosecutions to deal with and was critical of the style of drafting which had been adopted. In this case, it was submitted that all of the particulars pleaded in each case were made out on the evidence and even if not all were made out, that would not preclude convictions in each case. 9 The various charges here advanced relate to three periods of time. The first was 10 November, in respect of which two charges are pressed, one under s15 and one under s16. The charges were relevantly identical, apart from the fact that one referred to employees and the other to non-employees. The second period was from 10 November to 4 December. Again, two charges were pressed, one under s15 and the other under s16, which were similarly identical and, in addition, repeated, apart from one particular (at paragraph (v)), the particulars provided in relation to the 10 November charges. There were a number of other particulars provided in addition. 10 The third period was 4 December. Here, there were four charges pressed, two under s15 and two under s16. Like the earlier charges, these charges mirrored each other and the earlier charges, in a number of respects and added further particulars, as well as being concerned with employees and non-employees respectively. There was an added complication, however, in that these four charges were repetitive of each other. 11 This can be illustrated by reference to the charges brought under s15 in Matter Numbers IRC 5441 and 5444. The charges, respectively were: 5441 "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:" 5444 "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 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." 12 The additional words in the charge in Matter Number IRC 5444 'in that it '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', are identical to the words used paragraph (ii) in Matter Number IRC 5441. Otherwise, the charges and particulars are identical in content except that paragraphs (i) and (iii) - (vii) do not appear in Matter Number IRC 5444 and the numbering system adopted differs. 13 Section 49A is relevant to a consideration of this issue, it providing: 49A Multiple contraventions of Part 3

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(1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence. 14 Questions of double jeopardy and duplicity, a matter which has repeatedly arisen in prosecutions brought under the Act also arise. These matters were recently discussed by Staunton J in McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2004] NSWIRComm 202 at [120] to [130]: 120 While the prosecution may say that such an approach is permissible within the widest construction of s49A of the OHSA 1983, it is an approach that should be discouraged. It carries with it the danger of offending against the rule of double jeopardy. As well, it seems to me that it serves no useful purpose within the context of the Act or s49A in particular to break up the alleged contraventions of the defendants, relying predominantly on a temporal component with duplication of alleged contraventions simply to add to or create additional offences. This is particularly so where the prosecution is faced with a factual situation of continuing workplace activity encompassing those alleged contraventions. Further, it has to be asked whether such a pleading device materially adds to the substance and objective seriousness of the offences charged. And it is no satisfactory answer, it seems to me, for the prosecution to argue that any duplicity that arises can simply be addressed in the sentencing process. In this respect, I can only endorse the sentiments expressed by Haylen J in Robert Darcy Coombs v Patrick Stevedores Holdings Pty Limited [2004] NSWIRComm 77, particularly at paras [5] and [6] as follows: I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case.

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130 I should also add that, to the extent that it was canvassed by the defendants, I see no basis for a stay of any of the proceedings before me: see Pearce v The Queen at 620-621. 15 In this case, the four prosecutions brought in relation to 4 December, all relate to the same factual circumstances. There are two charges brought under s15 and two under s16. On any reading of the charges it is apparent that they do not concern four contraventions of the OHS Act, but only two. The charge brought in Matter Number IRC 5444 is entirely encompassed within the charge brought in Matter Number IRC 5441. The same position exists in relation to Matter Numbers IRC 5443 and 5442. I am unable to see, in those circumstances, that s49A has any application. There are, in reality, two allegations that the obligations imposed by s15 and s16 were breached. Unlike the circumstances before Staunton J, the charges here brought in relation to the events of 4 December, are not such that questions of duplicity can be properly left to be dealt with later in the sentencing process. In my view it is not open under the OHS Act for a defendant to be convicted twice for the same offence, arising out of the same circumstances. See the discussion of Gleeson CJ in Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 at 507-8. Nor is this the type of circumstance dealt with in Pearce v The Queen (1998) 194 CLR 610 at [40] - [41], two offences with common elements. The two s15 offences are identical, as are the s16 charges. The overlap is complete. It follows from these conclusions, that the prosecutor must make an election as to which of the 4 December charges he wishes to press. He must be given that opportunity. 16 Questions of duplicity also plainly rise from the offences charged in relation to 10 November, 10 November to 4 December and two of the offences charged in relation to 4 December. I am satisfied that those questions may be left to be dealt with in the sentencing process, although I entirely agree with the observations of Staunton J and those of Kavanagh J, as to how the approach adopted is inconsistent with the public interest. 17 I now turn to deal with the other aspects of the matters argued. In Matter Numbers IRC 5445, 5447, 5441 and 5444, it was pleaded that Mr Trajevski was an employee. It was accepted that there was some question on the evidence as to whether such employment was established and that accordingly, it could not be argued that the prosecutor had established the fact of his employment, to the necessary degree. That was submitted not to be fatal to a conviction, however, because each charge referred to five other persons, shown on the evidence to have been employees. I accept that submission. The evidence 18 The prosecutor tendered the prosecution brief, an ASIC search of the defendant and a statement of facts, which it was submitted was supported by the other evidence. Various expert reports were also relied upon. The statement of facts provided:

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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. 19 As I earlier noted, Mr Skinner conceded that the evidence could be considered as not having established, to the criminal standard, that Mr Trajevski was an employee of the defendant. It was argued, however, that this was not fatal to any of those charges. I agree with that concession and the argument so advanced. I also note that I am otherwise satisfied that there was evidentiary support for the other parts of the statement of facts tendered and that those facts were made out to the requisite standard. 20 I note that in coming to that conclusion, I took account of the prosecutor's acceptance that there was some evidence led, which concerned steps taken by employees of the defendant on 4 December, after the breach of the gas pipeline was discovered, matters not raised in any of the charges. It was submitted that this evidence was, nevertheless, relevant to the charges, because it showed how the defendant had dealt with the gas leak, which had serious ramifications. It was accepted, however, that given the obligations imposed on a prosecutor in ex-parte proceedings such as this, that such evidence might not be received because of a view that it was unfairly prejudicial to the defendant. (See s135 of the Evidence Act 1995). I have reservations as to the relevance of this evidence, but in any event, am satisfied in the circumstances where these proceedings are being heard ex-parte and having regard to the nature of that evidence, that I should have no regard to it, as s135 of the Evidence Act 1995 permits. Section 49(4) of the OHS Act 21 There was a coronial inquest into the events which gave rise to these prosecutions and a report given by the Coroner in October 1997. It was the case of the prosecutor that the offences charged were brought within the period provided in s49(4) of the OHS Act. 22 In Abigroup, the Full Bench considered the operation of the principle of regularity, so far as the operation of s49(4) of the Act was concerned. At [38] to [43] the approach adopted by Kavanagh J to the question of whether the prosecution was brought within time was considered, in the light of the judgments in Price v Humphries [1958] 2 QB 353 and R v Chin (1905) 157 CLR 626. In these proceedings, there has been no challenge to the prosecution having been brought within the time prescribed by the Act. Accordingly, it must be presumed in these cases the prosecutor has done all that is necessary and that the summonses issued are good. 23 The prosecution also relied upon the conclusions of Haylen J in WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs Pty Ltd and Ove Arup and Ors [2003] NSWIRComm 452, where at [68] his Honour followed the conclusions of the Full Bench in Inspector Page v Walco Hoist Rentals Pty Ltd (1997) 87 IR 286, that on the proper construction of s49(4) of the OHS Act, it is not necessary to identify the offender in the material before the Coroner or in the Coroner's report; that it is unnecessary for the prosecutor to rely only on the Coronial proceedings, or the report and not both and that there is no requirement that the material in the report or the proceedings relied upon, should have there appeared for the first time. These conclusions accorded with those which I had earlier reached in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271. I adhere to the views which I there came to. The Full Court in Edwards Madigan did not disturb those conclusions, leave to appeal being refused. Consideration 24 In Robert Josef, the Full Court observed at [23] that ss15 and 16 of the OHS Act place obligations on employers in relation to safety of employees on the one hand and non-employees not the other. It was said: "They are separate and distinct offences and are required to be considered as such. That the factual circumstances giving rise to acts and omissions constituting the offences under ss15 and 16 often arise from the same factual matrix, does not alter the fundamental proposition that they are not alternative offences in the sense that one may stand in the place of the other. As well, there is an essential element that distinguishes them that cannot be overcome in any direct alternative sense. That is the obligation arising with respect to employees in s15(1) as distinct from non-employees in s16(1). They are sperate in s16(1)."

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25 Like in Robert Josef, the evidence here showed that in the three time periods with which the various charges deal, both the defendant's employees and non employees were exposed to risks to safety at the defendant's workplace. It follows that the s15 and s16 offences are distinct and separate and must be dealt with as such, notwithstanding the similarity in the particulars upon which they were respectively based. 26 The evidence showed that at the relevant times, the defendant was an employer; that the worksite where the Kogarah Station Upgrading was being undertaken was its place of work; that there were both employees and non-employees of the defendant there present; that it failed to ensure that such employees were not exposed to risks to their health and safety while they were at work; and, in the case of the non-employees, that they were not exposed to risks to their health and safety arising from the conduct of the defendants undertaking at that workplace. 27 In Abigroup, the Full Bench had to deal with an appeal from the sentences imposed by Kavanagh J, having regard to a substantial degree of commonality between the various offences charged. This was accepted by the prosecution before the Full Bench. Likewise in these proceedings, a degree of commonality was accepted by the prosecution as arising in the charges here before the Court, having regard to the way in which the various charges have been framed. 28 That situation will have an impact upon sentence in these proceedings, given the need to consider questions of double jeopardy, duplicity and the principle of totality, as discussed by the Full Bench in Abigroup and at [87] to [89] in Robert Josef. That, however, at this stage of the proceedings, requires no further comment. On the evidence led, I am satisfied that the offences charged in each case have been made out, even though I am not satisfied that every aspect of the particulars of each charge has been made out. For example in the 10 November charges, it was alleged that the charged gas supply line was not adequately protected or identified. The evidence, however, showed that on that date the line was covered by earth and pavers and its location was marked in the pavers. 29 It is unnecessary to deal further at this stage with this, given that I am satisfied that each offence has been proven on the evidence. 30 Nor is it necessary, at this stage, to deal the repetitive nature of various of the particulars charged. If the Court is asked to impose penalties, the prosecutor will have to address itself to this question, including in relation to the application of the principle of totality, in determining sentence. 31 Suffice it for me to note at this stage, that I am satisfied that the evidence supported what was contained, in a summary way, in the statement of facts earlier set out, other than in relation to Mr Trajevski, who, it was accepted, had not been demonstrated to have been an employee. That evidence supported the conclusion that the various offences charged had been made out. On the evidence the defendant plainly failed to meet the obligations imposed by the Act, in relation to both employees and non-employees, on the days in question, as alleged. Orders 32 For the reasons given, I find the offences charged in relation to 10 November and the period 10 November to 4 December, proven. In relation to 4 December, the prosecution must have an opportunity to make an election as to which two of the four offences charged will be pressed. 33 The matters will be relisted for further hearing on application. Such application should be made within 14 days.

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