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[2005] NSWIRComm 94
Industrial Relations Commission (NSW)
2005-07-01
Schmidt J
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 94
PROSECUTOR: Inspector Kathleen Maltby
PARTIES: DEFENDANT: Josef & Sons Contracting Pty Limited (In Liquidation) (ACN 002 844 537)
FILE NUMBER(S): IRC 5440, 5441, 5442, 5443, 5444, 5445, 5446 and 5447 of 1999
Occupational Health and Safety - prosecutions under section 15 and section 16 of the Occupational Health and Safety Act 1983 - company in liquidation - defendant has not been deregistered - exparte hearing - charges related to three periods - questions of double jeopardy and duplicity - offences proven in relation to two periods - prosecution to make an election as to which two of the four charges will be pressed for the third period CATCHWORDS:
Corporations Act 2001 LEGISLATION CITED: Evidence Act 1995 Occupational Health and Safety Act 1983
Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Insp Maltby) (2004) 135 IR 317 Edwards Madigan Torzillo Briggs Pty Ltd v Mansell [2004] NSWIRComm 162 Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 Inspector Jones v T Helsby & Sons Contracting Pty Ltd (Administrator Appointed) [2004] NSWIRComm 5 Inspector Page v Walco Hoist Rentals Pty Ltd (1997) 87 IR 286 Inspector Vierow v LBJ Crane & Rigging Pty Ltd [2003] NSWIR Comm 152 McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2004] NSWIRComm 202 Ove Arup and Ors [2003] NSWIRComm 452 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: Price v Humphries [1958] 2 QB 353 R v Chin (1905) 157 CLR 626 T Helsby & Sons Contracting Pty Ltd, Inspector Sharpin v Enpro Hearing Pty Ltd [2002] NSWIR Comm 211 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2003) 126 IR 1 WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs Pty Ltd and Ove Arup and Ors [2003] NSWIRComm 452 WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) & Ors [2002] NSWIRComm 226 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271
HEARING DATES: 03/26/2004; 05/06/2004; 02/18/2005
PROSECUTOR: Mr PK Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: Moray & Agnew Solicitors
DATE: 31 March 2005 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 5443 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 5444 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 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 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:
10 November 1995 Matter Number IRC 5445 OF 1999
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).
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 a construction 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.
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;
(c) where earthmoving machines were operated. (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 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.
The Defendant failed to adequately mark the charged gas supply line on the KSU.
The Defendant failed to have the demolition site examined by the 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.
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;
(c) where earthmoving machines were operated. (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. Matter Number IRC 5443 of 1999 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 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. The Particulars of the charge:
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.
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. Matter Number IRC 5444 of 1999 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. 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.
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.
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
(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.
In making these comments, I acknowledge the often difficult task which faces a prosecutor, especially in circumstances where a workplace accident highlights a variety of risks to employees which are available to be pleaded under the provisions of the Act. Nevertheless, there is a public interest in the prosecutor focusing attention on the most serious aspects of those risks when commencing proceedings in the Commission in Court Session. It is not infrequent that the Court is involved, even where there is a plea of guilty to a limited number of particulars, in an extensive hearing and significant time taken in deliberation where the additional particulars or a number of them do not add materially to the substance and objective seriousness of the offence. When that occurs, justice is not served: the resources of the parties are increasingly devoted to minutiae and ultimately the Court is required to consider a case which may not have required such extensive attention.
121 The problems posed for the Court by the form of the pleadings was also recently touched upon by Peterson J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 at paras [3] and [4] and Kavanagh J in WorkCover Authority of NSW (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 at para [12]. 122 To all of the above comments, I would also add the important consideration of public interest. There is the need, in my view, for a prosecutor to weigh the additional time and cost that such overlapping and repetitive pleading creates against the need to charge a person with an offence that balances time and cost considerations against the genuine public interest in pursuing charges that properly reflect the overall criminality of the defendants' conduct. Duplicating contraventions over differing time periods in the context of continuing offences as part of a system of work is not, it seems to me, evidence of such an approach.
123 I have commented earlier of my concerns in relation to double jeopardy in the approach taken to pleading alleged contraventions based on a continuing course of workplace activity underpinned essentially by the same proof of facts and distinguished only, as are some the matters before me, by the temporal component determined by the prosecution. The common law rule against double jeopardy is that an accused person should not be placed in peril of being convicted of the same crime in respect of the same conduct on more than one occasion: see Connelly v DPP [1964] AC 1254 and Davern v Messel (1984) 155 CLR 21.
124 In Sentencing Manual: Law Principles and Practice in NSW: Judicial Commission of NSW at p223, the following useful commentary as to the expression appears as follows: The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be punished again for the same matter. Further, double jeopardy is an expression that is employed in relation to several different stages of the criminal justice process - prosecution, conviction and punishment: Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 at [9].
125 It should also be acknowledged that, at common law, a person may be convicted of two offences in respect of the same conduct. That principle was reaffirmed and the application of the test of double jeopardy was considered in Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502. In that matter Gleeson CJ said at 507-508: Both the proposition that a person cannot be punished twice for the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well-established. R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation. Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.
In Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 510, Hope J said: '…There is no reason why an act may not be prohibited by two separate statutes and …involve an offence under each statute.' That statement, as part of his Honour's reasoning in the case, was approved by the Court of Appeal in that case ([1973] 1 NSWLR 229) and also in Sydney City Council v Paul Dainty Corporation Pty Ltd [1984] 3 NSWLR 104 at 107: see also Australian Oil Refining Pty Ltd v Cooper (1989) 11 NSWLR 277.
The Supreme Court of South Australia has, on a number of occasions, most notably in R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219, taken what some would regard as an expansive view of the rule against double jeopardy, and indicated a willingness to apply it in a case where a second charge relates to the same set of facts as those in respect of which there has been an earlier conviction. However, the problem of defining the relevant set of facts was clearly acknowledged. Bray CJ said (at 225-226): The view I take then is that a man should not be convicted again in respect of any act or omission for which he has previously been punished but it is necessary to define with some care the precise act or omission for which he was previously punished in order to see whether it is the same act or omission which is in question in the second prosecution. Wells J (at 258) said the rule was wide enough to cover cases where: '…the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former.' (See also Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205.)
Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another. It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law. For example, the scheme of the customs legislation and regulations is such that a transaction or dealing designed to evade customs duty is highly likely to expose the offender to multiple penalties: cf Scott v Geoghegan and Sons Pty Ltd (1969) 43 ALJR 243. This will be because various steps in the transaction are likely to contravene various prohibitions. That is not ordinarily regarded as involving double jeopardy in the technical sense.
126 The necessity to consider the rule against double jeopardy was also the subject of judicial review in Pearce v The Queen (1998) 194 CLR 610. In the majority decision, McHugh, Hayne and Callinan JJ, their Honours analysed those cases that were said to support the proposition that a plea in bar is available when a person is charged with different offences arising out of the same set of facts with particular reference to Wemyss v Hopkins (1875) LR10QB 378. In their Honour's opinion (at 618) reliance on Wemyss and other cases in support of that proposition may not be necessarily available. As their Honours said at 618: Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporal or would they be founded in the intentions of the actor? Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a plea. In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.
127 In considering this issue, their Honours referred with approval to the decision of the Supreme Court of the United States in Blockburger v United States (1932) 284 US 299 at 304 as follows: …where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of a fact which the other does not. (emphasis added)
128 Overall, applying the reasoning in the above authorities to the matter before me, it is clear that quite apart from temporal considerations, the system of work alleged contraventions (a), (b), (c), (e) and (l), while expressed in identical terms to alleged contraventions (a), (b), (c), (d) and (f) of the night shift charge rely on differing factual particulars or differing aspects of primary facts in order to establish the gist or gravamen of the alleged offences. Accordingly, in the particular matters before me, no issue of double jeopardy arises.
129 Having come to that view, it would still be appropriate in my view, to take into account what I would characterise as duplication in relation to the alleged contraventions pleaded, particularly when taking into account the continuing nature of the workplace activity involved, in order to address any notion of double jeopardy punishment as contemplated in Pearce v The Queen (1998) 194 CLR 610.
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:
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. 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)."
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
WorkCover Authority of NSW (Inspector Maltby)
Josef & Sons Contracting Pty Limited
(2004) 135 IR 317
(1992) 28 NSWLR 502
(1997) 87 IR 286
(1998) 194 CLR 610
(1905) 157 CLR 626
(2003) 126 IR 1
(2000) 101 IR 271
(1984) 155 CLR 21
(1989) 11 NSWLR 277
(1971) 1 SASR 219
(1991) 28 FCR 425
(1969) 43 ALJR 243