Industrial Relations Commission of New South Wales in Court Session CITATION : Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 APPELLANT: Inspector Maurice Vierow PARTIES : RESPONDENT: Ridge Consolidated Pty Ltd FILE NUMBER: IRC 1278 of 2002 CORAM: Wright J President; Walton J Vice-President; Marks J Appeal - Occupational health and safety proceedings - Successful appeal from acquittal by trial judge - Double jeopardy - Nature of company - Relevance to penalty - Sentence imposed - Costs CATCHWORDS : Occupational health and safety proceedings - Appeal - Successful appeal from acquittal by trial judge - Double jeopardy - Nature of company - Relevance to penalty - Sentence imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 CASES CITED : Bultitude v Grice Constructions Pty Limited (No. 2) [2002] NSWIRComm 234 Inspector Vierow v Ridge Consolidated Pty Ltd (No 2) [2002] NSWIRComm 254 HEARING DATES: 12/05/2002 EXTEMPORE JUDGMENT DATE : 12/05/2002 APPELLANT: Ms P E McDonald of counsel WorkCover Authority of New South Wales (Ms R Panagoda) LEGAL REPRESENTATIVES: RESPONDENT: Mr F C Corsaro SC Solicitors: Colin Biggers & Paisley (Mr N Crennan) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President WALTON J, Vice-President MARKS J Thursday 5 December 2002 Matter No IRC 1278 of 2002 INSPECTOR MAURICE VIEROW v RIDGE CONSOLIDATED PTY LTD Application by WorkCover Authority of New South Wales for leave to extend time to appeal and to appeal against a decision of Justice Peterson given on 8 February 2002 in Matter No IRC 3877 of 1999 JUDGMENT OF THE COURT (Extempore) [2002] NSWIRComm 345 1 In these proceedings the appellant brought a prosecution against the respondent under s 15(1) of the Occupational Health and Safety Act 1983. At first instance the charge was dismissed but that decision was reversed on appeal in a judgment which we published on 23 September 2002: see Inspector Vierow v Ridge Consolidated Pty Ltd (No 2) [2002] NSWIRComm 254. These proceedings are confined now to the question of penalty and costs. 2 The circumstances which gave rise to the prosecution are fully set out in our earlier judgment and there is no necessity to traverse the factual background to the proceedings. We have had the benefit of submissions from both the appellant and respondent with respect to penalty and costs. 3 Viewed objectively, the offence was a serious one. There were steps which were reasonably available to the respondent to avoid the incident which caused the death of one of its employees and in fact measures were adopted by the respondent after the incident, and after the appeal decision, which were directed to that end. It is necessary that the Court also take into account the general and specific deterrent effect of any penalty. 4 The respondent continues in operation and, accordingly, it is necessary to have consideration of this circumstance in determining the impact of deterrence. There are however, a number of mitigating factors. The respondent, through its officers, has expressed contrition for what has occurred and the respondent reacted positively in assisting the family of the deceased employee. It seems from the material advanced in the proceedings that the respondent had a general awareness of its responsibilities under the Occupational Health and Safety Act and put into place a system and procedures designed to enhance its commitment to occupational health and safety matters generally. It is also true, as the appellant conceded during the course of submissions, that the respondent had taken steps to protect the safety of the employees concerned in the circumstances of this incident albeit those steps were not sufficient to prevent the incident occurring and were not sufficient to avoid the respondent being in breach of the provisions of the Act. The respondent has demonstrated its commitment to occupational health and safety matters by putting in place procedures, as has already been indicated, designed to ensure that incidents of this kind do not occur in the future. 5 It is also necessary to take into account the principle of double jeopardy in the circumstances. That principle had been applied on a number of occasions by this Court. The most recent relevant authority in this Court is the recent Full Bench judgment in Bultitude v Grice Constructions Pty Limited (No. 2) [2002] NSWIRComm 234. It is appropriate in the circumstances of these proceedings, as we have said, that the principle be applied here as well. It is noted in determining the question of penalty that the respondent operates in an industry which is inherently dangerous. The respondent has a prior conviction which has been the subject of prosecution appeal proceedings before this Court. It was fined the sum of $91,500 on 30 May 2002 arising out of an incident which occurred in 1997. By reason of the earlier conviction the maximum penalty which now applies to these proceedings is $825,000. 6 During the course of his submissions Mr F C Corsaro SC, who appeared for the respondent, said that in substance there should be a reduction in penalty having regard to the fact that, notwithstanding that the respondent was a corporation, it was a family company and the family members would have to shoulder the burden of any fine imposed. The evidence disclosed that the respondent was viable from a financial and asset viewpoint. The Court does not consider that there is any authority supporting the respondent's submission and none was advanced by Mr Corsaro. The Court rejects the submission. The matters referred to by Mr Corsaro in this aspect of his submissions are not relevant subjective factors in these proceedings. 7 The Court has determined that an appropriate fine in all the circumstances is the sum of $105,000. In terms of costs, the respondent should pay the appellant's costs at first instance such costs to be assessed by the Court in default of agreement. However, the Court is of the opinion that there should be no order as to the costs of the appeal given the totality of the circumstances of these proceedings. 8 The Court makes the following orders additional to those made on 23 September 2002: 1. The respondent is convicted the offence charged in Matter No IRC 3866 of 1999. 2. The respondent is fined the sum of $105,000 with a moiety thereof to the appellant. 3. The respondent shall pay the appellant's costs of the proceedings at first instance, such costs to be assessed by the Court in default of agreement. 4. There shall be no orders as to the costs of the appeal. ____________________ 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.