Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61

Industrial Relations Commission of New South Wales in Court Session

CITATION: Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61

APPELLANT Rodney Dale Morrison

CORPORATE RESPONDENT (IRC No 7068 of 2003) PARTIES: Powercoal Pty Ltd

PERSONAL RESPONDENT (IRC No 7069 of 2003) Peter Lamont Foster

FILE NUMBER(S): IRC 7068 and 7069 of 2003

CORAM: Walton J Vice-President; Boland J; Staff J

Occupational health and safety - Appeal - Sentencing proceedings on appeal involving corporate and personal respondents - Coalmining industry - Workplace fatality - Sentencing principles in occupational health and safety prosecutions - Maximum penalty - Application of s 51A of Occupational Health and Safety Act 1983 - Whether for the purposes of s 51A the relevant date is the date the conviction is recorded or the date of the previous offence - Where two offences are heard concurrently whether conviction/sentence in both should result in one of the offences being treated as a second offence and attract provisions of s 51A - Principle of totality - Double jeopardy - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Section 10 to be applied in extraordinary and highly exceptional circumstances -Considerations regarding the application of s 10 to personal respondent - Section 10 applied - Costs - Whether notice of appeal covered an order for costs - Whether Court has power to make costs order in an appeal under s 197A of the Industrial Relations Act 1996 - Considerations regarding the exercise of discretion in respect of whether the appellant is entitled to costs orders in relation to the trial at first instance and costs on appeal - Convictions recorded against corporate respondent and fines imposed - No convictions against personal respondent and charges dismissed - Costs orders against corporate respondent relating to costs at first instance and on appeal- No costs orders against personal respondent