WorkCover Authority of NSW v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW v Belmadar Constructions Pty Ltd [2000] NSWIRComm 206 PROSECUTOR WorkCover Authority of New South Wales (Inspector Dubois) PARTIES : DEFENDANT Belmadar Constructions Pty Limited FILE NUMBER: IRC2484 of 1999 CORAM: Peterson J CATCHWORDS : Occupational Health and Safety - Breach of s16(1) of Occupational Health and Safety Act 1983 - plea of guilty - failure to ensure wearing of safety harness- penalty - discounting relating to subjective features LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of NSW [2000] NSWIRComm 142 Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 HEARING DATES: 03/28/2000 DATE OF JUDGMENT: 10/26/2000

PROSECUTOR Ms L V Stapleton of counsel

SOLICITOR Mr N A Correy Moray & Agnew SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr B D Hodgkinson of counsel

SOLICITOR Mr Catanzariti Clayton Utz SYDNEY

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: PETERSON J

DATE: 26 OCTOBER 2000

Matter No. IRC2484 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DUBOIS) v BELMADAR CONSTRUCTIONS PTY LIMITED. Prosecution under s16(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 Inspector Rodney Dubois, an Inspector in the employ of the WorkCover Authority of New South Wales, has initiated proceedings against the defendant, Belmadar Constructions Pty Limited ACN: 000 817 505 in relation to an alleged breach of s.16(1) of the Occupational Health and Safety Act 1983 ('the Act'). Section 16(1) of the Act imposes upon every employer a duty to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at his place of work". The defendant has pleaded guilty to the charge and this judgment concerns the issue of penalty. 2 Subsequent to the hearing of this matter, while judgment was reserved, the defendant filed a notice of motion seeking an order setting aside the summons in the matter and an order for costs. The motion concerned a question which had arisen in other proceedings concerning the validity of the procedures adopted within the Commission for the purpose of the issue of such summonses. That question was resolved, as I understand it, by the judgment of the Full Bench in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 142. On 12 October 2000 the solicitors acting for the defendant in these proceedings wrote to my Associate in terms the substance of which is as follows: We wish to advise that the solicitors for WorkCover have consented to the withdrawal of our client's Notice of Motion with payment of any costs applicable to the Notice of Motion in the event of a costs order in favour of WorkCover eventuating from the substantive proceedings.