WorkCover Authority of NSW (Insp Glass) v Pacific Concrete & Quarries Pty Limited

PROSECUTOR Mr F.C. Corsaro of counsel with Ms W.G. Thompson of counsel SOLICITOR WorkCover Authoriity of NSW

LEGAL REPRESENTATIVES: DEFENDANT Mr J. H. Pearce of counsel SOLICITOR Smits Leslie

JUDGMENT:

• 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC2364 of 1999 WORKCOVER AUTHORITY OF NSW (INSP GLASS) v PACIFIC CONCRETE & QUARRIES PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

1 This is a prosecution under s15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant originally entered a plea of guilty to the charge. Mr F.C. Corsaro, of counsel, with Mrs W.G. Thompson, of counsel, appeared for the prosecutor and Mr J Pearce, of counsel, appeared for the defendant. 2 The prosecutor submits the charge arises from one event although the charge directs itself to three contraventions of s15 of the Act namely: 1. The defendant failed to provide a safe system of work in relation to the appropriate loading of the trailer. 2. The defendant failed to adequately supervise the task of loading and securing the concrete slabs. 3. The defendant failed to adequately train and instruct its employees as to the safe loading of the concrete slabs on the trailer.

The summons is filed under s49A of the Act. 3 There is an Agreed Statement of Facts as to the circumstances of the breach: 3. At all material times and on 12 January 1998 the defendant employed Anthony Martinelli as a truck driver to transport and deliver its precast concrete products and panel systems from its factory premises to a building site. 4. On the said date, Martinelli sustained fatal crush injuries when the 4 concrete slabs he was transporting on his truck became adrift when he applied the brakes and smashed through the driver's cabin, pinning him to the steering wheel and the dashboard. The accident occurred on a downhill, at a curved section of the Southern Cross Drive in a 90 km per hour speed zone. 5. On 12 January 1998, Inspector Frank Glass of WorkCover attended the scene of the accident to carry out investigations. Inspector Glass took photos of the scene and noted the following: . A White, Road Boss diesel powered prime mover, white in colour, registration No. UOE 861. The prime mover was wedged against the concrete medium strip dividing the roadway. The cab was severely damaged and lifted up at the rear by the impact of the concrete slabs which had entered the cabin. The deceased was pinned between the concrete slabs and the steering wheel and dashboard of the prime mover. (Photograph 1&2) 7. A trailer with registration plate K25931 attached to the prime mover. The rear trailer panel had a company logo "ICM 2000 Precast Concrete Panels" below which was a contact telephone number "02 625 5211." The length of the trailer was approximately 12.2m and the table top was constructed of checker plate mild steel. (Photograph 3) 8. On the trailer, two steel "A" frames constructed of 0.200m x 0.80m "U" channel with wooden block inserts supported the load. These steel "A" frames were resting on the steel tray and were not secured or fixed to the trailer. (Photograph 4) 9. The load consisted of 4 precast concrete panels measuring 10.1m x 1.3m x 0.180m each weighing approximately 5.5 tonne. The two panels supported on the right side of the frame had two lifting lugs approximately midway on the 0.180m face, facing toward the rear of the trailer. The panels supported on the left side of the A frame did not have the lifting lugs facing toward the rear of the trailer. (Photograph 5) 10. The precast concrete panels rested on the wooden blocks attached to the "U" channel. The wooden block supporting the rear end of the precast concrete panel was splintered and broken. (Photograph 6) 11. The precast concrete panels were secured to the trailer by an 8mm graded chain bearing the marks 7B. This chain was connected approximately 2.3m from the front of the trailer closest to the prime mover. A rubber mat protecting the chain was inserted between the chain and the precast concrete block. A 2.6m black skid mark from the position of the chain and rubber mat was evident on the concrete slab. The chain was pulled forward and had considerable tension in it. A second length of chain was attached approximately 9.4m from the front of the trailer. (Photographs 7 & 8) 12. A chain lock was positioned approximately 0.3m above the trailer tray and had the markings "BEAVER 7mm 3000 kg's, and 8mm 3800 kg's." (Photograph 7) 13. A second similar chain was found lying on the road and the right hand driver side of the vehicle. The last link on the chain was open. (Photograph 9) 14. At 1.6m from the end of the outside left precast panel were two indentations in the concrete panel. The top of the panel had an indentation approximately 0.02m, a protruding ledge below had a 0.06m indentation. (Photograph 10) 15. A chain lock was lying by the rear tyres of the driver side of the vehicle. The markings on the lock are 5/16, 3/8 Swl 5400 LBS and MBS 19000 LBS. (Photograph 11) 16. At the rear of the vehicle behind the semi were 4 parallel skid marks which extended 107.3m from the crest of the hill to the final resting place of the vehicle. (Photograph 12) 17. At the time of the accident Martinelli had been driving semi-trailers for approximately eight months. It appears that at the time of the accident Martinelli applied the brakes on the prime mover forcefully because the traffic ahead was braking. 18. As a result, the momentum of the concrete slabs travelling at high speed and the opposing forces due to the braking action exerted sufficient force to overcome the coefficient of friction existing between the "A" frames and the strength of the chain causing the chain restraining the slabs to break. The slabs were then able to slide forward, smash through the driver's cabin and crush the driver. 19. Investigations revealed the following: i. The vehicle involved in the accident did not have any major defects that could have contributed to the accident. ii. The load on the truck had been secured by Martinelli in the same manner as was common practice adopted by the defendant for that type of load. iii. The accident occurred on a slight downhill curve with the truck travelling at considerable speed. iv. Only 2 eight millimetre Bradlink 70 chains secured the load to the trailer. v. The two "A" frames used to support the load were not permanently attached to the trailer and were resting on a steel table top, relying on a steel to steel friction coefficient to prevent sliding. vi. There were no forward or rear restraints to prevent the load from moving forward or backward. vii. The load was not secured in accordance with the Load Restraint Guide recommendations issued by the Roads and Traffic Authority of NSW. 20. At the material time the method of securing the load on the truck was inadequate and unsafe. The defendant could have implemented a safer method of securing the load, which was available at the time of the accident. This method consists of placing heavy rubber matting between the "A" frames, increasing the number of chains securing the load, providing fore and aft restraint for the load and providing a check list for the drivers to follow when securing the load. 21. Following the issue of an Improvement Notice on the defendant by Inspector Glass for the defendant to provide positive fixing of "A" frames and to provide sufficient fore and aft restraint to all loads to ensure that such an accident did not recur, the defendant has implemented the method outlined in paragraph 20 above. 22. Investigations further revealed that the poor design of the "A" frames resting on the steel table top of the truck was a contributing factor to the accident. 23. Inadequate training, instructions and supervision were provided on safely securing loads of concrete slabs on the truck. 24. It is alleged that on 12 January 1998 the defendant Pacific Concrete and Quarries Pty Limited [ACN: 085 780 678] being an employer at Southern Cross Drive, Mascot, South of Wentworth Avenue in New South Wales failed to ensure the health, safety and welfare of its employees and in particular Anthony Martinelli, contrary to the provisions of Section 15(1) of the Occupational Health and Safety Act 1983 in that: i. The defendant failed to provide adequate training and instructions to its employees on how to safely secure loads of concrete slabs onto the truck so as to ensure that the slabs would not shift or move during transportation. ii. The defendant failed to provide and maintain plant and systems of work that was safe and without risks to health. In particular, the defendant failed to: a) ensure that the 2 "A" frames used to support the load of concrete slabs on the truck were permanently attached to the trailer instead of resting on a steel table top and relying on a steel to steel friction coefficient to prevent sliding. b) ensure that there were adequate forward or rear restraints to prevent the load of concrete slabs from moving forward or backward whilst being transported by the truck. c) failed to provide adequate matting between the "A" frames to compensate for the design and ensure positive positioning of the 'A" frames. d) failed to provide adequate number of chains to be used in securing the load. iii. The defendant failed to adequately supervise the task of loading and securing of concrete slabs onto its trucks to ensure that the load was securely placed and would not shift should the truck apply its brakes during transportation. 4 After hearing submissions on the nature and quality of the offence and on subjective features of the breach in consideration as to the mitigation of penalty, this matter was adjourned for submissions as to the financial status of the company. After some time, the defendant company sought leave to file a notice of motion for leave to withdraw its plea of guilty in the matter and substitute a plea of not guilty revealing, after an inspection of company financial records, the defendant came to the view the wrong company has been named as the defendant.

5 The prosecutor then sought leave to file a notice of motion for leave to amend the summons to change the name of the defendant. Put simply when the defendant went away to obtain instructions as to the financial status of the company, inquiries were made and, following those inquiries, it became clear that the named defendant, Pacific Concrete and Quarries Pty Limited with ACN 085 780 678, was a company not registered until 7 January 1999 after the issue of the summons and long after the date of the accident.

6 On the day of the accident, 12 January 1998, Pacific Concrete and Quarries Pty Limited was the name of the company that employed the deceased. Both parties agree to this as a statement of fact. The prosecution proceeded on a summons which refers to Pacific Concrete and Quarries Pty Limited, ACN No. of 085 780 678, instead of the correct ACN No. of 058 394 237 for the employer company. The company that employed Mr Martinelli, (ACN058 394 237) was incorporated on 15 December 1992. At the date of Mr Martinelli's death the registered office of the company that employed him was called Pacific Concrete & Quarries Pty Ltd and its registered address was c/- Trood Pratt and Co., Suite 3102 Level 31, Tower Building, Australia Square Sydney, with its place of business at 202 Power Road, Plumpton. Mr Joseph Tak-Wong Wong was the managing director. 7 On 7 January 1999 Pacific Concrete and Quarries Pty Limited (ACN 058 394 237) changed its name to Manpac Industries Pty Limited. The change of name had no effect on the ACN number. It stayed the same. However, also on that day, a new company was incorporated. The new company took up the name formerly held by Manpac. The new company received an ACN number of 085 780 678. That is the ACN number that incorrectly appears on the court process. 8 At the time of the commencement of proceedings both Pacific Concrete and Quarries Pty Limited ACN 085 780 678 (the new company) and Manpac Industries Pty Limited ACN 058 394 237 which formerly traded as Pacific Concrete & Quarries Pty Ltd (Mr Martinelli's employer) operated out of the same principal place of business with Mr Tak-Wong Wong as a director of both companies. 9 There are a number of issues before the court: Have proceedings been commenced against the proper employer and, if proceedings have not been commenced against the right employer, can the prosecutor amend the summons to name the correct defendant and further, in all of the circumstances, should the defendant be given leave to withdraw the plea of guilty?

10 The prosecution submits the proceedings have been correctly commenced against Mr Martinelli's employer but there has been a mis-description of the ACN number on the amended summons. The prosecution submits the summons correctly names the defendant. If the Court is against this submission in the alternative, and in accordance with its notice of motion, the prosecution submits it should be given leave to amend the name of the defendant. 11 It is agreed between the parties the time limit for the issuing of a further summons has expired. The significance of the ACN number becomes relevant. The Corporations Law 1989 (Cth) governs the registration and naming of a corporation. Section 118(1) provides as follows: 118 "Registration" (1) If an application is lodged under section 117, ASIC may: (a) give the company an ACN; and (b) register the company; and (c) issue a certificate that states: (i) the company's name; and (ii) the company's ACN; and (iii) the company's type; and (iv) that the company is registered as a company under the Corporations Law of this jurisdiction; and (v) the date of registration.

Section 148 sets out the requirements for a company's name: (1) Company may use available name or ACN. A company may have as its name: (a) an available name; or (b) the expression "Australian Company Number" followed by the company's ACN. The name must also include the words required by subsection (2) or (3). . . .

Section 153 requires that a company must set out its name and ACN number on all public documents and negotiable instruments subject to any exemption provided under the Law . 12 Relevantly, s154 exempts a company from citing its ACN number on a receipt. Section 161 sets out the legal position where a company changes its name as follows: Effect of name change (1) A change of company name does not: (a) create a new legal entity; or (b) affect the company's existing property, rights or obligations; or (c) render defective any legal proceedings by or against the company. (2) Any legal proceedings that could have been continued or begun by or against the company in its former name may be continued or begun by or against it in its new name. 13 The evidential value of a certificate of registration is set out in s1274(7) and (7A) of the Corporations Law. Section 1274(7) provides as follows: (7) In any proceeding:(c) a certificate by the Commission that, at a date or during a period specified in the certificate, no company was registered under this Law by a name specified in the certificate shall be received as "prima facie "evidence that at that date or during that period, as the case may be, no company was registered by that name under this Law; and . . . (c) a certificate by the Commission that, during a period specified in the certificate, a particular company was registered, or taken to be registered, under this Law is to be received as prima facie evidence that, during that period, that company was registered under this Law. Relevantly sub-clause (7A) provides as follows: A certificate issued by ASIC stating that a company has been registered under the Corporations Law of any jurisdiction is conclusive evidence that: (a) all requirements of that Law for its registration have been complied with; and (b) the company was duly registered as a company under that Law on the date specified in the certificate. 14 The prosecutor submits the provisions of the Corporations Law make it clear the ACN of a company merely forms part of its name or description. Whilst a company under s153 is required to show its ACN number on public documents subject to some exemptions, there is no requirement that proceedings taken against a registered company requires the citation of an ACN number. 15 These proceedings were commenced pursuant to s47(1)(b) of the Occupational Health and Safety Act 1983. They are criminal proceedings conducted in the Industrial Relations Commission of NSW. Relevantly, s168 of the Industrial Relations Act 1996 states: (1) [Proceedings for an offence] Proceedings for an offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) [Supreme Court (Summary Jurisdiction) Act, 1967 applies] The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subs (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15) is taken to be a reference to the Commission in Court Session, and (b) to rules is taken to be a reference to rules of the Commission, and (c) to the Prothonotary is taken to be a reference to the Industrial Registrar. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence . NOTE: See s196 with respect to the procedure on appeal to the Full Bench in criminal proceedings

16 Therefore, in accordance with s168(3) of the Act, s6(1) of the Supreme Court (Summary Jurisdiction) Act becomes relevant. It provides as to defects in substance and form of a summons: Section 6 - Defects and variances in process (1) No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. (2) The Judge hearing the proceedings for any such offence shall: (a) where it appears to the Judge that any variance between any such application or order and the evidence adduced in respect of the offence charged in the application or order is such that the defendant has been misled by the variance; and (b) the defendant applies for an adjournment of the hearing, adjourn the hearing. 17 Wright J, President, in the matter of WorkCover Authority of New South Wales (Inspector Rodney Dubois) v Concrete Constructions Group Limited (unreported, IRC97/5242, 20 May 1999) concluded in an examination of a summons issued under the Occupational Health and Safety Act 1983 that while he found it was not defective, if it had been so found the defect would have been curable by the application s6 of the Summary Jurisdiction Act. Wright J, President, approved the judgment of Hill J in the Full Bench matter of Boral Gas (NSW) Pty Limited v McGill (58 IR 363) where Hill J also acknowledged the operation of s6 of the Summary Jurisdiction Act to amend a summons issued under the Occupational Health and Safety Act 1983. In both matters there was an examination of the more general law related to the powers to cure an alleged defect in a summons as addressed by the High Court in John L Pty Limited v Attorney-General for New South Wales ((1987) 163 CLR 508) and in Stanton v Abernathy & Anor ((1990) 19 NSWLR 656 at 666) where Gleeson CJ (as he then was) commented as to there being no precise technical verbal formula for questions of this nature. The prosecutor submits in all the circumstances related to the change of name of this company the court should use its discretion to amend the summons. 18 As to whether the Court should apply s6 of the Summary Jurisdiction Act to amend the named defendant, the defendant submits that it acknowledged the existence of the company Manpac to the WorkCover Authority during its investigations and any statement provided by Mr Wong to the Authority was given at the time Pacific Concrete and Quarries Pty Limited was the correct name of the employer company. They submit the search done by the prosecutor clearly indicated the named defendant was not incorporated until 7 January 1999 almost 12 months after the date of the offence. 19 The defendant further submits when the original summons was filed it mis-dated the date of the accident but the defendant took the appropriate steps to notify the prosecutor, leading to the first amended summons on which this case proceeded. This fact the defendant submits indicates there was no intent on the part of the company to deceive the prosecutor. The prosecutor made a significant error by not checking the date of the incorporation of the company it named as a defendant. The prosecutor made a mistake through no fault of the defendant. It is agreed the limitation period has expired for the laying of a charge against the properly named defendant. For the court to use its discretion under s6 of the Summary Jurisdiction Act the defendant submitted would have the effect of righting the wrong act of the prosecutor. The defendant submits the court should take no note of the authorities of John L and Concrete Constructions as they address the issue of an amendment to summonses which did not identify essential factual ingredients of an offence alleged and are therefore not relevant authorities.

20 As to the significance of the ACN number, the defendant submits that s153 of the Corporations Law requires that a company must set out its name and ACN number on all public documents. Therefore it submits this initiating summons is defective as it does not provide the correct ACN (now ARBN) number. The defendant further relies on an affidavit of John Anthony Leslie sworn 7 March 2000 which affidavit gives a chronological outline to the laying of the initiating summons and relies significantly on the file of the WorkCover Authority. 21 The prosecutor submits the facts of the case become relevant to the exercise of the court's discretion in consideration of the leave to withdraw the plea of guilty. They submit the plea was entered in circumstances where the defendant had a solicitor and was represented at the hearing by counsel and so was well advised. They submit there is no evidence before the court to support a submission the defendant did not understand the nature of the charge or the facts. The prosecutor submits there can be no miscarriage of justice if leave to withdraw the plea was declined. The prosecutor submits the defendant should not be entitled to take advantage of some corporate restructure that caused a new company to take the name of Mr Martinelli's employer where the same directors controlled both companies. Further, it submits, if the defendant had wished to take such a point it could have been taken at any time before the expiry of the limitation period and the summons would have been so amended. 22 As to the application of the defendant for leave to withdraw the plea of guilty, the defendant relies on the following facts: the defendant at all relevant times had one director, Mr Joseph Tak-Wong Wong. Due to difficulties between the defendant and its accountants, Mr Wong did not receive the original summons issued by the WorkCover Authority. Copies of same were handed to the solicitor for the defendant at court on 29 July 1999. Further, it submits the WorkCover Authority was in possession of a search in respect of the defendant which clearly indicated the defendant they named was not in existence at the time the offence occurred.

CONSIDERATION: AS TO AMENDMENT OF NAMED DEFENDANT TO SUMMONS

23 The principles to be applied to amend a named defendant to a summons have been given learned examination by the courts. In R v Lister ((1956) 72 WN 491) the court considered an application to amend the named defendant to a summons where a person was convicted under a summons which was issued against a different named person. The summons, the court held, could be amended to the proper name of the defendant because the same offence in the same language was that to which the person who was to be charged had pleaded. The court held (at 494): The point which has arisen centres around the fact that a false name and address were given by the appellant, Lister, to the Constable at the scene of the accident. . . . The summons obviously came to the notice of the appellant, because he appeared at the time and place notified in the summons to answer it ... 24 In McLean v Case & Deignan Pty Ltd ((1961) 78 WN 476 a summons was laid against a company where the prosecutor relied upon a receipt issued from a named company which receipt inserted letters into the proper name of the registered company. The docket purported to be issued by a company called K. Case & C. Deignan Pty Limited. However, the company registered under the Companies Act 1936 was Case and Deignan Pty Limited. The summons was issued against the defendant K. Case and C. Deignan Pty Limited. The court held: In my view it is not the case of a non-existent company; furthermore, the inclusion of the two initials K & C was merely a misnomer caused by the delivery of a cash sale docket containing those initials as part of the company's name by a representative of the company carrying on business at the shop in question. How, then, can it be said to be a company non-existent? It was decided long since the mere mis-description or misnomer of a body corporate in legal proceedings is a matter which can be rectified by amendment; see Stafford Corporation v Boulton (1797) 1 Bos and Pul 40; 126.

and the court further held (at 478) as to a similar provision in the Justices Act 1902 when looking at a section empowering the court to again hold: . . . (the section) is a most valuable section and it is important . . . that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. . . . It is abundantly clear that the company and its directors were neither deceived nor misled - if there were any deception it was on the part of the company's directors or servants in issuing a cash docket in the wrong name, but, allowing it was not a deceptive act, it was nevertheless an act of the company which could be misleading and it certainly misled the informant. 25 Further, in WorkCover (Inspector Wolfe) v Kiama Municipal Council (unreported, 14 July 1999), the Chief Industrial Magistrate said of a prosecution against a Shire Council incorrectly named in the summons: It seems to me that the public interest in ensuring safety at the work place far outweighs the prejudice caused to the council by the Inspector's careless actions. ... In regard to the name of the defendant the evidence of the general manager was that the council uses the name Kiama Municipal Council in general correspondence and in other non-legal documents.

The Chief Magistrate then noted that the Kiama Municipal Council operated from the same address as what would have been the properly named defendant, the Council of the Municipality of Kiama. The Chief Magistrate then held after relying on McLean v Case & Deignan : The purpose of any name is to identify a person. It is clear that the WorkCover has identified the correct entity and its address otherwise one would expect there to be no appearance of the defendant before the court. A close examination of the name alleged and the gazetted name of the council illustrates there is no difference and the correct defendant has been identified. I will allow an amendment under s65 of the Justices Act 1902. 26 Mr Pearce for the defendant, however, relies upon Sheil v Crothers ((1933) 33 SR 229) where Street CJ (as he then was) said (at 233): Generally speaking there may be very strong reasons why a power of amendment should not be exercised so as to substitute one name for another, but in this case seeing that Crothers, who was present in Court, had power to sue in the name of the Board, I think that the omission to do so was a mere irregularity on his part. I think, therefore, that the case was one in which, assuming a power to allow amendments, an amendment should have been allowed, and I agree with Davidson J in thinking that the mistake made by Crothers was a mere informality, and that it affords no ground for interfering with the conviction. 27 The defendant in this case adopts the "very strong reasons" view held by Street CJ to submit the power of amendment by a Court should not be applied. The defendant urges the court to distinguish the cases of Lister and McLean on the grounds that in those cases it was proven there were very strong reasons inviting the use of the power to amend. Not so, they submit, in the case before the court. The defendant submits it played no part in the misnaming of the defendant. The error was one entirely of the prosecutor and should not, in such circumstances, be corrected by the court in the use of its discretion particularly when a new summons is statute barred. 28 However, the court is persuaded on the authorities of Lister and McLean there is, in the set of circumstances before it, strong reasons for allowing the prosecutor to amend the name of the defendant. I am persuaded the court must amend the summons as it does not only mis-state the ACN number but mis-states the name of the employer company which was known as Manpac Industries Pty Limited at the time the summons was issued. 29 The court bases this decision on the following facts placed before the court: the employer was named Pacific Concrete and Quarries Pty Limited at the time of the accident; the new company did not exist at that time; Mr Wong was a director of both the new company and the employer; Mr Wong understood the structure of each company yet on his instructions the plea of guilty was entered. Evidence on affidavit reveals the prosecutor conducted a number of inquiries which included a visit to the premises operated by the employer and interviews with staff at the site. The new company, the defendant in the amended summons proceeded upon, had no business premises or staff until a year later. Further, an improvement notice was issued to the employer and acted upon. Mr Wong, with his solicitor, met with the prosecutor and provided written and oral answers to questions from the WorkCover Authority. The tenor of the interview was that the prosecutor was interviewing the employer and the employer was answering questions in that role. No ACN number was referred to at this stage of the investigation. Mr Wong signed his record of interview on 10 January 1999, three days after the incorporation of the new company, and forwarded it to the WorkCover Authority. No reference in the record of interview was made to the change of name of the company to Manpac Industries Pty Limited. No reference was made to the incorporation of a new company. Further, in the hearing of the charge, the employer, having had legal advice, entered a plea of guilty. The prosecution on that plea went to hearing. Mr Wong attended at the court and was instructing his solicitor and counsel as to the plea. He tendered documentation. On the plea the defendant tendered the statement Mr Wong gave to the WorkCover Authority in his defence. His presence at court and the facts in the affidavit reveal he has been served with the summons. The court is persuaded he understood the significance of the charge. 30 The court finds when the name of the company was changed from Pacific Concrete to Manpac and a new company was registered as Pacific Concrete, the company and Mr Wong, its director, may not have meant to deceive or mislead, but allowing it was not a deceptive act, it was nevertheless an act by the company which could be misleading and it certainly misled the prosecutor (see McLean's Case). 31 For this and other stated reasons the court orders the amended summons No. IRC2364 of 1999 on which the plea of guilty was entered to be further amended to name as the defendant "Manpac Industries Pty Limited ACN 058 394 237 formerly t/as Pacific Concrete and Quarries Pty Limited".

CONSIDERATION: AS TO APPLICATION TO WITHDRAW PLEA 32 As to the application by the defendant for leave to withdraw its plea of guilty, in Regina v Marchando ([2000] NSWCCA 8 at 4), the Appeal Court very recently restated the principles to be applied in the use of the court's discretion to grant leave for the withdrawal of a plea of guilty and the principles that are to be applied. The Court observed: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481.

In Regina v Sagiv ((1986) 22 A Crim R 73 at 80-81) these principles were earlier stated: There have been a number of cases in regard to withdrawal of a plea both before conviction and on appeal and the following have been cited here: Foley (1963) 80 WN (NSW) 726; Plumber (1902) 2 KB 339 ; S v Manchester City Recorder (1969) 3 all ER 1230; Bone (1968) Tas SR (NC 19) 194; James (1967) Tas SR (NC8) 264; Frochen v O'Gorman & Anor (1979) 1 NSWLR 683; Murphy (1965) VR 197; Forde (1923) 2 KB 400; Chiron (1980) 1 NSWLR 218; O'Neill (1979) 2 NSWLR 582; 1 A Crim R 59; Durham Quartersessions, Ex parte Virgo (1952) 2 QB 1; Ingleson (1915) 1 KB 512 and Lloyd (1923) 17 Cr App R 184 . . . it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence ( O'Neill (1979) 2NSWLR 582; 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings.

In R v Davies (1993) 19 MVR 481) the principles were further conveniently summarised: It is clear that this court may grant leave to appeal against a conviction entered pursuant to a plea of guilty. The principle to be applied is the same as that to be applied in a trial court where prior to sentence an accused person seeks leave to withdraw a plea of guilty previously entered.

And in the case of R v Murphy (1965) VR 187, the majority (Herring, CJ and Adam, J) cited the judgment of Avory J in R v Forde (1923) 2 KB 400 at 403: A plea of guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it; or (2) that upon the admitted facts he could not in law have been convicted of the offence charged. 33 As was stated in R v Boag ((1994) 73 A Crim R 35) there can be no miscarriage of justice in allowing the plea of guilty to stand in this matter. No argument has been put to the court that the company did not appreciate the nature of the plea which had been entered nor is there any suggestion the plea has been induced by fraud or threat or any other impropriety. While in Praglowski v Insp Robbins (unreported, NSW Industrial Commission in Court Session, IRC320 of 1998, 6 July 1998) an appeal was upheld and the withdrawal of a guilty plea allowed, the order was granted in circumstances where the evidence proved the facts advanced to the Magistrate were clearly erroneous. This court in WorkCover Authority (Insp Page) v RGM Building Services Pty Ltd [2000] NSWIRComm 27 has recently given judgment on a similar application. Wright J, President has referred to the above and other authorities in determining in the use of his discretion to give leave and he so used that discretion. 34 Such is not the case before me. It is clear this was a case of mistake by the prosecutor but no circumstances were put before the court which persuade the court the integrity of the plea as an admission of guilt is challenged. The court finds the plea was entered in full knowledge of all the facts and an awareness as to the charge. The court does not intend to order the plea of guilty be withdrawn. 35 For the above reasons I allow the amendment to the summons to change the name of the defendant and I reject the application of the defendant to withdraw its plea of guilty.

PENALTY 36 The prosecution revealed at the date of the breach that the maximum penalty under the Act is $550,000. The defendant has no prior convictions so consideration as to penalty does not attract the provisions of s51A of the Act. 37 The summons is filed under s49A of the Act which states: More than one contravention of section 15 . . . by a person that arose out of the same factual circumstances may be charged as a single offence or as separate offences. Subsection (3) states: 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.

I consider a plea of guilty has been entered to the charge as reflected in the above findings which amend the amended summons as to the proper name of the defendant. 38 It is noted s 49A is a provision designed to overcome a technical problem as found in Boral Gas NSW Pty Limited v McGill (58 IR 363) and so to facilitate prosecution. This section does not remove fundamental rules of specificity or precision without expressed language or necessary intent. As was said in the commentary to the Butterworths Practice on Occupational Health and Safety Law (at 3678.2): If there is a construction of statutory provisions which leaves fundamental common law rights and principles intact and yet at the same time which meets the needs and presumed intention of the legislation, that construction should be preferred. 39 Although the Court in accordance with the judgment of Hill J in Boral Gas NSW Pty Limited v McGill (58 IR 363) notes each summons issued under s15(1) of the Act should direct itself to a particular breach, s49A allows a protection to plead in a summons a single breach under s15(1) and to particularise three contraventions of s15 of the Act. The court intends to treat this charge as a single offence with three contraventions of s15 of the Act as the charges arise out of "the same factual circumstances". There is no definition in the Act of "the same factual circumstances". This term seems not to have been given legal scrutiny. In Boral Gas, Hill J examined s15(1)& (2) and determined on the summons before him (at 389): These particulars allege contravention of s 15(1), consisting of a number of separate and distinct failures falling within at least two of the categories of contravention set out in s 15(2) - par (a) failure to provide or maintain plant and systems of work that were safe and without risk to health (and, in particular, in relation to the safe state of the Marine Loading Arm), and par (c) failure to provide such information, instruction, training and supervision . . . In my view, these alleged failures involve at least two alleged contraventions of s 15(1) and therefore two offences. The nature and content of each failure is separate and distinct. The fact that each failure may occur and/or become evident on the same day, in my opinion, is not to the point. Each one is a contravention of s 15. . . . If, of course, the same act or omission falls coincidentally within more than one of the categories of failure set out in s 15(2) (or more than one of the sub-categories set out in each category), then, in my opinion, only one offence will be involved. But that is not the case here. Many of the acts and/or omissions identified as failures are disparate in nature and content. They involve different items of plant, different systems of work, different operations and procedures, different locations on the premises, and the safety of ingress to and/or egress from the premises, which in turn could involve, and is seemingly alleged to do so, different risks of danger to different employees. 40 The court has before it a series of contraventions all of which are connected, and proximate in time and if not place, to the accident which the court finds give rise to the same factual circumstances that is the shifting of the load causing the risk to safety. 41 To assess penalty, the court must determine the nature and quality of the offence. In assessing the gravity of an offence it is well-recognised that objective factors are taken into account but in any determination of penalty subjective features as to circumstances may also be considered. In the matter of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464: . . ., in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH & S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'. . . . It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence.

The Full Bench also approved the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

The Full Bench notes: The proper approach is first to consider the gravity of the offence viewed objectively.

And . . . In the case of an offence under s 15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

42 The prosecutor submits in the circumstances before the court the risk to safety was both obvious and foreseeable. A prime mover and trailer loaded with 22 tonnes of precast concrete panels travelling at speed, on a main arterial road, in Sydney, at 8am constitutes a significant potential risk to the driver of the vehicle if the load is not adequately secured and restrained. The prosecutor submits the opening words of the Federal Transport Department "Load Restraint Guide" directs itself to the prevention of load shift and to load restraint systems that are appropriate. It specifically deals with the potential dislodgment of loads and the type of tie-down lashings to be used as well as the appropriate placing of the said lashing.

43 Added to the breaches of the guidelines as to load restraints and lashings was the fact that the "A frames" holding the concrete slabs loaded on this truck were not attached. These frames were neither restrained nor placed on matting such as to ensure no slippage. The facts suggest very little was done by the defendant to assess the potential risks associated with the inherited loading practices of the trucks which it adopted when it purchased the related company. The defendant used the system it inherited from the previous operator. That system was inadequate. Further there was no training or instruction provided to Mr Martinelli, the driver, as to the checks required for the loading of his trailer.

44 The Act requires employers in New South Wales to be pro-active in removing risks at the workplace as well as reactive. In WorkCover Authority of NSW v CI&D Industries Pty Ltd ((1995) 60 IR 149 at 158) the Full Bench observed: The general duties created by the OH & S Act, such as in sections 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment as to safety and as to which a causal connection was shown. The accident itself may well, and probably does, manifest the existence of a detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

45 Mr Pearce for the defendant relies on a statement of Joseph Tak-Wong Wong who is the managing director of the defendant company. He acknowledges the system followed, which required only two chains be placed across the load, was insufficient. Immediately following the accident, in consultation with the associated company whose employees by way of crane operators loaded the precast concrete panels onto the trailer, the system of work in place was reassessed. Having sought the advice of the WorkCover Authority and having received a Notice of Improvement, the defendant company introduced a new system which involved placing six chains across the load attached to the trailer and two chains down the load attached to the trailer. The A frames were attached and it is now ensured they are placed on a rubber non-slippery mat. 46 The defendant company is a small company. It purchased the transport company and absorbed it into its overall operations in early 1997. In doing so it adopted the procedures in place for the loading of trailers. It required its drivers to have a Class 5 licence to drive a semi-trailer and the deceased, Anthony Joseph Martinelli, held such a licence, but it did not check the prior experience of its semi-trailer drivers. It is recorded the deceased had prior work using concrete mixing trucks. There is no evidence he was experienced in semi-trailers work. 47 For an assessment of penalty the court is required to make an assessment of the nature and quality, that is the gravity of the offence, viewed objectively. The Act under a s 49A prosecution requires the court to treat as a single offence more than one contravention of the section in the case of s15. The contraventions are pleaded as particulars in this summons, namely, the defendant failed to provide a safe system of work as to the loading of the trailer; failed to adequately supervise the loading and securing of concrete slabs and failed to adequately train and instruct its employees in safe loading of concrete slabs onto a trailer. In assessing the nature and quality of the offence, that is the gravity of the offence, I find each contravention is a serious one and the single offence most serious. 48 The court must take into account the subjective features in assessing penalty. The contrition of the defendant has been expressed through counsel and there have been endeavours to ensure a proper and safe system of work for the future has been established. There is now provision for the training of its drivers. The family of the deceased was given care and attention and other staff members were counselled. An early plea of guilty was entered to the charge. However the facts reveal the defendant is attempting to leave the industry and further it is still, through Mr Wong, an employer in NSW. No documentation was tendered to support any ongoing commitment to occupational health and safety. Mr Wong did not give evidence to the Court. The court is required to accept the assurances of counsel as to future safety practices. While it does accept those assurances, it finds the evidence before it of future commitment to safe working, sketchy. 49 The financial status of the company becomes important. While the nature and quality, that is the gravity, of an offence guides the court to the true measure of penalty, in this case there is evidence of absence of prior convictions. The defendant's holding company has since the accident leased two of the plants to another concrete operator and the court was informed is negotiating with a further concrete operator to operate the Plumpton plant. It is taking itself out of this industry. That is no reason for not preparing comprehensive site safety procedures and manuals to eliminate the risk to safety of its workers by the provision of safe systems of work, adequate plant and equipment and proper training of its workers. This type of assurance is not before the Court. 50 The defendant was asked by the court as to its financial status. Wright J, President has recently held that while the court has no discretion to apply a maximum penalty other than that prescribed by the legislation it is proper to have regard to the financial status of the company in a consideration as to Penalty (see Dept of Mineral Resources of NSW v A.M. Hoipo & Sons Pty Ltd (unreported, Walton J, Vice President, IRC98/6258, 15.3.00), Insp Gordon v MIJO (NSW) Pty Ltd (unreported, Cullen J, CT93/1002, 2.12.93). The financial position and more particularly the means of the defendant can be taken into account in relation to the question of penalty. As Wright J, President said in Ferguson v Nelmac Pty Limited ((1999) 92 IR 188): . . . Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. 51 After a further adjournment the court has received, without any attached submission, a document purporting to outline the financial situation of Manpac Industries Pty Limited (ACN 058 394 237) formerly trading as Pacific Concrete and Quarries Pty Limited. The documents forwarded to the Court suggest that the company is subject to a Deed of Arrangement which commenced on 19 October 1998. Company payments under the deed, up to 30 December 1999, of $500,000 have been paid to the Deed Administration Fund. The assets and liabilities document post the deed of company arrangement suggests the company has a book value of assets of $3.3 million. The fact there is a deed of arrangement indicates the company has significant financial liabilities. Nonetheless, I am persuaded it is proper in the circumstances to order a significant fine for this offence.

53 I fine the defendant in the sum of $160,000.00 with a moiety to the WorkCover Authority.

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