Industrial Relations Commission of New South Wales in Court Session CITATION : Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) [2000] NSWIRComm 45 APPELLANT: Sydney Water Corporation Limited PARTIES : RESPONDENT: WorkCover Authority of New South Wales (Inspector Hes) FILE NUMBER: IRC4761 of 1999 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Appeal - Leave to appeal - Nature and quality of the offence - Parity principle - Multiple liabilities - Multiple parties charges being brought from a single incident involving a common substratum of facts - Prosecution of a principal and a contractor in relation to a single accident - Tender of new material - Equal justice - Equal sentences - Appropriate penalty - Absence of reasons for sentence - Level of culpability of a defendant - Nature and quality of an offence - Amended form of summons - Inclusion of inappropriate materials in appeal books - Prior record of a defendant - Leave to appeal refused Occupational Health and Safety Act 1983 s15 LEGISLATION CITED : Industrial Relations Act 1996 s188 s191(2) Industrial Relations Commission Rules 1996 r46 Blue Mountains Disability Services Ltd-v- Stinson (1999) 92 IR 246 Caltex Petroleum Pty Limited -v- Harmer (1999) 92 IR 264 Knowles -v- Anglican Property Trust (unreported, Walton J, Vice-President, Glynn J and Patterson C, IRC 99/2137, 15 December 1999) CASES CITED : Lawrenson Diecasting Pty Ltd -v- WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Lowe -v- The Queen (1984) 154 CLR 606 Postiglione -v- The Queen (1997) 187 CLR 295 Regina -v- Steele (unreported, Court of Criminal Appeal, 95/60738, 17 April 1997) WorkCover Authority of NSW (Inspector Ankucic) -v- McDonalds Australia Limited (unreported, Walton J, Vice-President, IRC 98/1104 and 1106, 4 February 2000) HEARING DATES: 03/15/2000; 03/16/2000 EXTEMPORE JUDGMENT DATE : 03/16/2000 APPELLANT: Mr B Hodgkinson (of counsel) SOLICITORS: Mr R Walker Clayton Utz LEGAL REPRESENTATIVES: RESPONDENT: Ms P McDonald (of counsel) SOLICITOR: Mr G McCann WorkCover Authority of NSW JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Thursday, 16 March 2000 Matter No. IRC 4761 of 1999 SYDNEY WATER CORPORATION LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HES) Application for leave to appeal and appeal against a decision of a Local Court constituted by an Industrial Magistrate given on 16 August 1999 in Matter No. CIM 1342 of 1998. JUDGMENT OF THE COURT (extempore) 1 THE PRESIDENT: His Honour, the Vice-President will give the first judgment. 2 WALTON J: This is an application by the Sydney Water Corporation Limited ("the appellant") for leave to appeal and, if leave be granted, appeal from the decision of a Local Court constituted by Ms P O'Shane, Industrial Magistrate, given on 16 August 1999. 3 Leave to appeal is required in this matter pursuant to s188 of the Industrial Relations Act 1996 ("the Act"): see Blue Mountains Disability Services Ltd -v- Stinson (1999) 92 IR 246 at 258. 4 In its written submissions, the appellant submitted that leave to appeal should be granted as the appeal raised fundamental matters of importance as follows: (a) The impact of the Magistrate having regard to a charge which was not before her in the form considered. (b) The proper circumstances to be taken into account when considering the nature and quality of the offence and the application of that principle appropriately. (c) The application of the parity principle and the proposition in law that it must be considered in circumstances such as those disclosed in this matter. 5 In oral submissions, Mr Hodgkinson of counsel, who appeared for the appellant, emphasised the third ground, namely the issue of parity. He submitted that under the Occupational Health and Safety Act 1983 ("the Act") multiple liabilities arose, particularly where parties were involved in contracting activities. There was a potentially large number of persons or corporations so affected as multiple charges might often be brought from a single incident involving a common substratum of facts. This raised important considerations, particularly where, as it was submitted, there was an absence of authority in this Court as to the application of the parity principle to circumstances where there occurred a prosecution of a principal and a contractor in relation to a single accident. 6 In support of those submissions, and the appeal generally, Mr Hodgkinson sought leave to tender in the appeal the transcript of proceedings held on 4 November 1998 before another industrial magistrate. Although that transcript was incorporated in the appeal books it was not in the evidence at first instance. The transcript recorded the hearing of a plea in the prosecution of K G Facility Management Pty Ltd, a contactor of the appellant, pursuant to s15 of the Act and the decision of the other industrial magistrate in that matter. An employee of that contractor was involved in the accident in this matter. 7 The Court raised with Mr Hodgkinson the implications of this further material to the question of leave: see Caltex Petroleum Pty Limited -v- Harmer (1999) 92 IR 264 at 269 and Knowles -v- The Anglican Property Trust (unreported, Walton J, Vice-President, Glynn J and Patterson C, IRC 99/2137, 15 December 1999) at 4 - 5. He nonetheless pressed the tender of the material. 8 The Court refused to admit the new material. The transcript in question may well have been a significant factor in the application of the principle of parity at first instance but was not put before the industrial magistrate. There was before the court at first instance, and remains before us, a singular lack of material to properly determine the application of the issue of parity, particularly in relation to the circumstances giving rise to the penalty imposed upon the contractor. 9 The principle of parity operates to ensure equal justice, but the principle does not require equal sentences where there exists differences between offenders which warrant a different approach: Lowe -v- The Queen (1984) 154 CLR 606 and Postiglione -v- The Queen (1997) 187 CLR 295 at 301, 309, 325, 338 and 340. 10 In this case, it would appear that a penalty imposed upon the contractor may have been inadequate. However, there is nothing before the Court which will permit such a finding to be properly made. Similarly, there was an insufficient basis in the material before the court at first instance which would warrant or permit an affirmative conclusion that the penalty imposed by the magistrate resulted in an unjustifiable discrepancy when compared with the penalty imposed upon the contractor. 11 In particular, in the absence of reasons for the sentence in the contractor's case, it is difficult to say whether the sentence was inappropriately lenient or severe: see Regina -v- Steele (unreported, Court of Criminal Appeal, 95/60738, 17 April 1997) at 6. 12 Given the objective seriousness of the offence committed by the appellant, and the absence of detailed material permitting a comparison between the contractor and the appellant, I am not satisfied there is a sufficient basis for intervention in the decision of the magistrate in relation to the application of the principle of parity. 13 Further, I do not agree with Mr Hodgkinson's submissions that there is underdeveloped in the jurisprudence of this Court the application of the principle of parity in relation to circumstances where a principal and contractor face charges under the Act arising from a single incident. 14 I note my decision in relation to the principle of parity in WorkCover Authority of NSW (Inspector Ankucic) -v- McDonald's Australia Limited (unreported, IRC 98/1104 and 1106, 4 February 2000) at 99 - 108. The principle of parity, and its application in relation to that matter and in relation to the role of a contractor or contractors, was there discussed. I adopt the reasoning in that decision for the purposes of this matter. I also note the observations made in that decision that the role of contractors often casts light upon the level of culpability of a defendant. Further, the principle of parity is well settled in the judgments of the High Court in Lowe and Postiglione. 15 There is no warrant, in my view, for the grant of leave based upon the issues associated with the parity principle. 16 The remaining two bases for seeking leave by the appellant do not, in my view, raise sufficient grounds for the grant of leave to appeal. The proper circumstances to be taken into account in considering the nature and quality of an offence are now well settled: see Lawrenson Diecasting Pty Ltd -v- WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474 - 475. I am not satisfied that the decision at first instance demonstrated such issues as to the application of those principles as would warrant the grant of leave to appeal in this matter. 17 As to the submission that the industrial magistrate failed to have regard to the amended form of the summons, I am not satisfied that such approach, if in fact it occurred, had any real impact upon the reasoning or orders made at first instance. 18 I mention one further issue before proposing the orders to be made in this matter. An appellant should be careful to ensure that the material included in appeal books conforms with the requirements of the Industrial Relations Act and the Industrial Relations Commission Rules 1996 (see Pt8, r46 and s191(2)). In particular, I note that the content of the appeal books should be limited to the record of proceedings at first instance, unless leave is granted to include other materials. Any application to that effect, whether made in the notice of appeal or by separate motion, should be made in a prompt and timely way supported by affidavit evidence. 19 The reasons which were given for the inclusion of extraneous materials in this case appeared to indicate that the materials were included inadvertently. It should be clear that the inclusion of inappropriate materials in appeal books is unacceptable and parties should ensure appeal books are filed in the proper form. 20 I also emphasise the desirability in sentencing matters for the prosecutor to provide adequate details of any prior record of a defendant in order that the Court might properly consider that matter in sentencing. 21 I would propose the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The appellant shall pay the respondent's costs as agreed or assessed. 22 THE PRESIDENT: I agree. Although I initially considered that the appropriate disposition of this matter was to grant leave to appeal and to dismiss the appeal, having however had the opportunity to consider the reasons of his Honour, the Vice-President, I consider that this matter does not warrant the grant of leave to appeal. 23 HUNGERFORD J: I agree with the President and with the orders proposed by the Vice-President for the reasons given. 24 THE PRESIDENT: The orders that the Court makes are therefore those proposed by the Vice-President. ______________________ 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.