Industrial Relations Commission of New South Wales in Court Session CITATION : Barber v Gundagai Shire Council (or alternatively Gundagai Council) [2002] NSWIRComm 243 APPELLANT: WorkCover Authority of New South Wales (Inspector Mark Barber) PARTIES : RESPONDENT: Gundagai Shire Council (or alternatively Gundagai Council) FILE NUMBER: IRC 4235 of 2002 CORAM: Wright J President; Walton J Vice-President; Staunton J Appeal - Leave to appeal - Occupational health and safety prosecution - S 10 of Crimes (Sentencing Procedure) Act applied by Magistrate - Parties reach agreement that appeal be upheld and matter remitted to another magistrate for re-sentencing - Approval by Full Bench necessary for leave to appeal to be granted and for appeal to be upheld - Full Bench grants leave to appeal and upholds appeal - Costs CATCHWORDS : Occupational health and safety prosecution - Appeal - Leave to appeal - S 10 of Crimes (Sentencing Procedure) Act applied by Magistrate - Parties reach agreement that appeal be upheld and matter remitted to another magistrate for re-sentencing - Approval by Full Bench necessary for leave to appeal to be granted and for appeal to be upheld - Full Bench grants leave to appeal and upholds appeal - Costs Crimes Act 1900 s 556A Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED : Industrial Relations Act 1996 s 188 s 197 Justices Act 1902 s 81 Occupational Health and Safety Act 1983 s 15 s 47 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 McCarthy v Sell & Parker Pty Ltd (2000) 102 IR 355 CASES CITED : Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Schultz v Tamworth City Council (1995) 58 IR 221 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 HEARING DATES: 09/02/2002 DATE OF JUDGMENT: 09/30/2002 APPELLANT: Mr Gordon Henderson WorkCover Authority of New South Wales Phillips Fox, Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr Williams of counsel Peter Gain & Associates (Mr Peter Gain) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President STAUNTON J Monday 30 September 2002 Matter No IRC 4235 of 2002 INSPECTOR MARK BARBER v GUNDAGAI SHIRE COUNCIL (OR ALTERNATIVELY GUNDAGAI COUNCIL) Application by WorkCover Authority of New South Wales for leave to appeal and appeal from a decision of Magistrate Robert Rabbidge given on 1 July 2002 in case no 20159078/02 JUDGMENT OF THE COURT [2002] NSWIRComm 243 1 These proceedings involve an application for leave to appeal and, subject to leave being granted, an appeal against a decision of Magistrate Rabbidge sitting at Gundagai Local Court given on 1 July 2002. 2 The proceedings before his Worship related to a prosecution laid by Inspector Barber as informant on behalf of the WorkCover Authority of New South Wales, citing an offence pursuant to s 15(1) of the Occupational Health and Safety Act 1983. 3 The information alleged that the respondent to the appeal, and the defendant in the proceedings before Rabbidge LCM, being an employer, failed on 19 May 2002: 1.1 to ensure that an inherently dangerous nip point created between a bin lifter and a metal cradle bracket on the rear of the hopper of the compaction unit was properly guarded or otherwise inaccessible to employees; 1.2 to ensure that employees operating the control lever for the bin lifter could not access the nip lift point; 1.3 to provide adequate warning to its employees of the risk of injury by the nip point while carrying out garbage collection activities; 1.4 to provide adequate instructions and training to its employees concerning the safe operation of the bin lifters while carrying out garbage collection activities. 4 When the matter came before the Registrar of the Local Court on 3 June 2002, a plea of guilty was entered and the matter subsequently transferred to Gundagai Local Court for the determination of sentence. The matter came before Magistrate Rabbidge on 1 July 2002 for submissions on sentence. 5 Before Magistrate Rabbidge, the prosecutor tendered an agreed statement of facts together with a number of relevant photographs and a letter from his instructing principals adding to the agreed statement of facts. As well, the prosecutor advised the Court that the defendant had no prior convictions under the Occupational Health and Safety Act 1983. 6 The defendant's solicitor, by consent, tendered an affidavit of Mr Robert Moore, Manager of Community Services of the defendant. His responsibilities included overseeing the collection and disposal of refuse within the Shire. 7 After considering the written material placed before him, the solicitor for the defendant addressed the Court, identifying factors that, he submitted, his Worship should consider in mitigation. In doing so, he did not make any request for any particular sentencing outcome. The prosecutor was not called upon to make any submissions. 8 His Worship briefly summarised the matters placed before him and then dismissed the charge without conviction and penalty pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. In reaching that decision his Worship stated, relevantly, as follows: "In this matter … the Council has met its responsibilities through its plea of guilty, and I do note the learned submissions of Mr Gain. I note his final comments in relation to the manufacturer as well as the operator not recognising or being aware of the problems in this particular unit, over fourteen years, obviously had worked extraordinarily hard as indeed had the operator, and the operator himself had had no difficulties with the unit until this very unfortunate incident (sic). Very much to the credit of the Council, immediate action was taken to rectify the problem and to liaise with WorkCover and no doubt other persons to ensure the safe means of work for all its employees. I do note what Mr Gain has said in relation to the very careful and good relationship between the ratepayers and Council and the fact that the employees of Council are local ratepayers. In other words, every person works together to ensure the welfare of the community, and that is the way it should be. So clearly there is no deliberate or malevolent breach by the Council of its duties. It was something which, as Mr Gain has carefully submitted, even the manufacturer had not recognised, and it is a tragedy that a man should be injured because of the unique circumstances that should lead to a further safety mechanism being placed on the machine. I note the Gundagai Shire Council has had no problems under this legislation since the legislation has been in operation and that now is over quite a large number of years – Occupational Health and Safety Act 1983. That therefore displays the Council's very fine record and approach towards its employees and its duties. Under the circumstances it is appropriate I believe to proceed by way of a section 10 dismissal. I do note the unique circumstances, the plea of guilty, the very considerable efforts made by Council to rectify the problem, and the cooperation that has clearly been displayed by the Council to ensure that this problem does not occur. It is entirely appropriate I believe therefore in the interests of the community that a section 10 dismissal be the means by which this matter is dealt with." 9 His Worship then considered the question of costs. He was advised by the prosecutor that the usual agreed costs in such matters were in the vicinity of $1400. Following further brief submissions on behalf of the defendant, his Worship declined to make an order for costs apart from the usual Court costs of $59. In making that decision his Worship said: "In the matter, Mr Eldridge, who appears on behalf of WorkCover, asks the Court to consider awarding costs, looking to professional costs and the usual disbursements. He refers me to a letter dated 28 June to Mr Gain in relation to his inquiries. It is a response to his inquiries. At paragraph 3, it states: 'We note your comments concerning the prosecutor's scale of costs and disbursements. It is the practice of the Chief Industrial Magistrate, and other Magistrates hearing prosecutions under the Occupational Health and Safety Act 1983 to award costs and disbursements in accordance with the scale. However, we acknowledge that there is no legislative or regulatory power behind the document.' Mr Gain puts to the Court the costs that the local ratepayers have already faced. It is a small group – or relatively small group of people of some two thousand only. Mr Gain notes this, the public obligation is opposed of course to user pays, and we're all aware that both commonwealth, state and local governments are taking the user pays approach (sic). Certainly that has become very apparent over the last 12 or so years. Having considered the material, I don't propose to award costs. I consider that a state body such as the Occupational Health and Safety body, should be in a financial position where it can meet its costs. Council has made very considerable efforts in this matter and I consider that to be sufficient. The ratepayers obviously have enough to pay and to worry about without worrying in addition about costs and disbursements. I decline to award costs." 10 The issue of costs is one of the matters raised in the application for leave to appeal and appeal, particularly having regard to the construction and application of s 81 of the Justices Act 1902. 11 The appellant, the prosecutor in the proceedings before his Worship, now seeks leave to appeal and appeal pursuant to s 47 of the Occupational Health and Safety Act and s 197 of the Industrial Relations Act 1996 on the following grounds: 1. His Worship erred in exercising his discretion under section 10(1) of the Crimes (Sentencing Procedure) Act 1999 to dismiss the information. 2. His Worship erred in exercising his discretion to dismiss the information pursuant to section 10(1) of the Crimes (Sentencing Procedure) Act 1999 without raising this issue with the parties. 3. His Worship erred in acting upon wrong principles when exercising his discretion to dismiss the information pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. 4. His Worship erred in that the penalty was manifestly inadequate having regard to the objective circumstances of the offence. 5. His Worship erred in exercising his discretion to decline to award costs to the Appellant. 6. His Worship erred in the exercise of his discretion in sentencing, in that he: · gave undue weight to matters subjective to the Respondent; · gave insufficient weight to factors objective to the Respondent; 7. His Worship erred in allowing extraneous or irrelevant matters to guide or affect the exercise of his discretion in declining to award costs to the appellant. 8. On any other ground that the Commission considers appropriate. 12 In support of his application for leave to appeal, the appellant, in the notice of appeal, submitted that the appeal raised important questions as to the construction and application of s 10 of the Crimes (Sentencing Procedure) Act, the principles to be adopted and the weight to be given to subjective features relevant to the defendant in sentencing and considerations to be taken into account on the discretion to award costs. 13 Additional reasons for the granting of leave to appeal identified as matters of public importance were whether the penalty was manifestly inadequate when considering the objective circumstances of the offences and the exercise by the Court of its discretion under s 10 of the Crimes (Sentencing Procedure) Act without prior notice to the parties. 14 At the directions hearing in this appeal, the solicitor for the appellant was joined by the respondent's solicitor indicating that the parties had reached agreement on the proposed further conduct of the matter. A request was made of the Court that, subject to the approval of the Full Bench, leave to appeal be granted and that consent orders be made in terms of the Short Minutes of Orders filed with the Court at the directions hearing. On that occasion, a number of directions were made by consent including that the parties were to file the requisite appeal books and provide to the Court a short outline of submissions, which may be joint submissions. Those directions were complied with and the appeal books and joint submissions are now before the Court. 15 The submissions and related documents have now been considered by the Full Bench as have the decision made by his Worship both as to penalty and costs, and the evidence before his Worship on those issues. 16 The requirement for leave to appeal to be granted in accordance with s 197 of the Industrial Relations Act for matters such as the one before us is well established: see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446. In addition s 188(2) of the Industrial Relations Act requires the public interest test to be assessed in granting such leave. 17 In considering all of those matters averted to, we are of the view that leave to appeal should be granted. The nature of the crush injury suffered by Mr Jones when his right forearm became trapped in the identified nip point between the metal lip of the bin lifter on the metal cradle and the rear of the hopper of the compaction unit are objectively serious on any view. We accept without issue the force of the joint submissions on the requirement for guarding such dangerous machinery expressed in paragraph 8 in the following terms: "The requirement for employers and other persons to identify and safely guard all dangerous parts of machinery used at work has been recognised for decades in decisions of the Commission and its predecessors, and well as in the Chief Industrial Magistrate's Court and Local Court." 18 Given that view, with which we concur, the requirement of public interest is manifestly evident in the matter before us. As has been expressed by this Court repeatedly in like and similar terms, the Occupational Health and Safety Act and the obligations arising there from requires an employer to look ahead and to seek out and foresee dangers even when those dangers have not crystallised to an incident or accident. On that point, it is pertinent to note that the agreed facts placed before his Worship contained the following observations made by the informant following the accident that only serve to highlight that issue: " 7.1 The nip point formed between the lip of the bin lifter and the cradle bracket on the rear of the hopper of the compaction unit was inherently dangerous in that it was unguarded and readily accessible by an operator; 7.2 … 7.3 Two green waste bins of the premises were emptied into the compaction unit. Jones noticed that there was excess rubbish in the hopper of the compaction unit after emptying the bin. Jones reached across with his right arm to level out the rubbish in the hopper and while doing so his right arm was trapped in the nip point; 7.4 Jones is unsure how the bin lifter was activated at that point and believes he may have activated the control lever with his knee or another body part; 7.5 It was relatively common for employees of the defendant, including Jones, to reach into the hopper area of the compaction unit with their hands to level out rubbish." [our emphasis] 19 The limited circumstances in which the application of the discretion conferred by s 10 of the Crimes (Sentencing Procedure) Act 1999 has been applied to occupational health and safety offences before this court are well known: see Schultz v Tamworth City Council (1995) 58 IR 221 and more recently WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 particularly at 72 where the Commission in Court Session expressed the view: " … in occupational health and safety offences before this Court the exercise of the discretion under s. 556A (cf. s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant and also by the judge acceding to that submission. The obligation is increased rather than diminished in the situation, such as the present, when the exercise of the discretion is not sought by the defendant but raised by the Court." See also McCarthy v Sell & Parker Pty Ltd (2000) 102 IR 355 at 357 - 358 and Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145. 20 It is relevant to our consideration of this matter that the defendant did not seek the exercise of the Court's discretion under s 10, the prosecutor was not invited to address the Court on the question of penalty and his Worship gave no indication prior to making his decision that he was considering the application of s 10 to the matter before him. Given the rare circumstances in which the benefit of s 10 (and before that s 556A of the Crimes Act 1900) has been considered in occupational health and safety prosecutions, his Worship's decision to unilaterally apply the discretion available in the circumstances that he did was an incorrect one, particularly having regard to the objective seriousness of the matter which we have already commented upon. 21 In all the circumstances we are of the view that the exercise of the sentencing discretion by his Worship at first instance miscarried and the appeal on the question of penalty should be upheld. 22 The consent orders proposed by the parties also invite us to quash the order of his Worship as to costs particularly having regard to the construction and application of s 81 of the Justices Act 1902: 81 Payment of costs by defendant or by prosecutor or complainant (1) The Justice or Justices making any conviction or order may in and by such conviction or order adjudge that the defendant shall pay to the clerk of the court, to be by the clerk paid to the prosecutor or complainant, or, in the case of an order of dismissal, that the prosecutor or complainant shall pay to the clerk of the court, to be by the clerk paid to the defendant (or, if the prosecutor or complainant so elects, directly to the defendant) such costs as to such Justice or Justices seem just and reasonable. (2) The amount so allowed for costs shall in all cases be specified in the conviction or order. (3)(a) For the purpose of the exercise of the power conferred by subsection (1), any order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 shall have the like effect as a conviction. (b) The amount allowed for costs under subsection (1) as extended by this subsection shall be specified in the order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 and the order shall be deemed to be an order whereby a sum of money is adjudged to be paid within the meaning of this Act." 23 His Worship's reasons for coming to the view that he did, relevantly, have been detailed in paragraph [9], above. It is unclear what his Worship was referring to with his reference to "user pays" within any proper consideration of awarding costs in a criminal prosecution such as he had before him in this matter. On any view, such considerations would be outside the purview of matters which one might normally consider in making an order for costs in the circumstances before his Worship. 24 In the matter before him, the defendant had entered a plea of guilty. In order to secure the entry of that plea, the informant was required to undertake detailed investigations and observations of the defendant's work site and work practices. Such activities are not without cost to the public purse, with the intended ultimate beneficiary being the wider community in the overall regulation and investigation of occupational health and safety matters in this State in order to ensure safe workplaces and safe systems of work consistent with the intent of the legislation. 25 In all the circumstances we conclude that the application for costs made by the prosecutor was fair and reasonable. Accordingly we are of the view that the appeal on the question of costs should be upheld. 26 In conclusion, we make the following orders in determination of these proceedings: 1. Leave to appeal is granted. 2. The order of his Worship Mr Robert Rabbidge made on 1 July 2002 at Gundagai Local Court under s 10 of the Crimes (Sentencing Procedure) Act 1999 dismissing an information brought by the appellant (as informant) alleging breach of s 15(1) of the Occupational Health and Safety Act 1983 by the respondent is quashed. 3. The order of his Worship made on 1 July 2002 at Gundagai Local Court declining to award costs on the information to the appellant is quashed. 4. The information is remitted to the Chief Industrial Magistrate, or another Industrial Magistrate, for sentencing and costs to be determined according to law. 5. The respondent pay the appellant's costs of these proceedings in the amount of one thousand dollars. _________________ 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.