Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Ross Wolf v Rockdale Beef Pty Ltd and Others [2004] NSWIRComm 244 Matter Number IRC 6126 of 2003 _________________________________________ PROSECUTOR: Inspector Ross Wolf DEFENDANT: NAIQ Pty Limited ACN 093 955 812 Matter Number IRC 6127 of 2003 _________________________________________ PROSECUTOR: PARTIES : Inspector Ross Wolf DEFENDANT: Riverina Agency Contracting Services Pty Limited ACN 075 022 445 Matter Number IRC 6128 of 2003 _________________________________________ PROSECUTOR: Inspector Ross Wolf DEFENDANT: Rockdale Beef Pty Limited ACN 003 789 991 FILE NUMBER: IRC 6126, 6127 and 6128 of 2003 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety Act - prosecutions under s8 and s10(2) of the Occupational Health and Safety Act 2000 - notice of motion - prosecutor seeking joint hearing of all three matters - trials to be heard separately - costs Criminal Procedure Act 1986 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2003 CASES CITED : R v Bikic (2000) 112 A Crim R 300 WorkCover Authority of New South Wales (Insp Lane) v Australian Winch Haulage Pty Ltd (2000) 102 IR 40 HEARING DATES: 07/28/2004 DATE OF JUDGMENT: 08/20/2004 PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales DEFENDANT IN IRC 6126 of 2003 Mr SC Finnane of counsel SOLICITORS: Colin Biggers & Paisley LEGAL REPRESENTATIVES: DEFENDANT IN IRC 6127 OF 2003 Mr D Cross, solicitor SOLICITORS: Allens Arthur Robinson DEFENDANT IN IRC 6128 OF 2003 Mr SL Bell of counsel SOLICITORS: Terrett Lawyers JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 20 August 2004 Matter Number IRC 6126 of 2003 INSPECTOR ROSS WOLF v NAIQ PTY LIMITED Prosecution under s.10(2) of the Occupational Health and Safety Act 2000 Matter Number IRC 6127 of 2003 INSPECTOR ROSS WOLF v RIVERINA AGENCY CONTRACTING SERVICES PTY LIMITED Prosecution under s.8(1) of the Occupational Health and Safety Act 2000 Matter Number IRC 6128 of 2003 INSPECTOR ROSS WOLF v ROCKDALE BEEF PTY LTD Prosecution under s.8(2) of the Occupational Health and Safety Act 2000 JUDGMENT 1 Three defendants have been charged with offences under the Occupational Health and Safety Act 2000 ('the Act') arising from injuries suffered by an abbattoir worker. Two charges were brought under s8 of the Act and one under s10(2), with alternative charges under other sections pressed in each case. The prosecution unsuccessfully raised the question of a joint hearing of all three matters before Boland J and later filed a motion seeking orders to that effect. 2 The grounds and reasons in support of the motion were that there was no application by the defendants, or material presented to the Court, that would justify displacement of the normal position that the prosecutions be heard jointly. The affidavit supporting the motion, sworn by Linda Barnes, solicitor, indicated that orders were issued by the Court on 23 November 2003, with all offences alleged arising out of the same circumstances at the premises of Rockdale Abattoir at Yanco. Ms Barnes asserted that they were 'of the same or a similar character'. The prosecution in each case was anticipated to take at least two weeks and it was expected that there would be much duplication in separate trials, because 'most of the admissible evidence that the prosecution relies upon in the case against each defendant is the same.' 3 Shortly prior to the hearing of the motion, the prosecution revealed to the other parties that it had reached agreement with one of the defendants, Rockdale Beef Pty Ltd, that there be a separate trial of the offences with which it had been charged. The prosecution thus did not press the motion in relation to that defendant. It was agreed by all parties to the three prosecutions that this trial should proceed first. It was listed for a four week hearing. Mr Skinner of counsel explained for the prosecutor that 'it makes sense for it to go first because, in that trial, material may emerge which will leave the other two defendants being more willing to make concessions than just from reading the prosecution brief.' 4 This agreement was reached in a context where Rockdale Beef was charged under s8(2) as an employer, with responsibilities for non-employees at its place of work. Rockdale Beef was charged in the alternative under s10(2), as the controller of plant or substance used by people at work. Riverina Agency Contracting Services Pty Limited was charged under s8(1), as an employer with responsibilities for employees. In the alternative, Riverina Agency was charged under s8(2). NAIQ Pty Limited ('NAIQ') was charged with an offence under s10(2) and in the alternative, an offence under s8(2). NAIQ Pty Limited 5 NAIQ, initially understood that in the circumstances of the agreement which the prosecutor had reached, its trial would also proceed separately. The prosecutor disagreed and pressed for a joint trial of the prosecution against NAIQ and Riverina Agency. Riverina Agency had no objection to a joint trial, but NAIQ opposed that course. 6 Having heard the submissions, I concluded that the NAIQ and Riverina Agency trials should be heard separately. 7 I came to this view, having regard to the fact that while the usual course would be to expect a joint trial of all of these prosecutions, justice required a departure from that approach. It became apparent that the agreement reached in relation to a separate trial for Rockdale Beef, had regard to information provided by that defendant, which the prosecution accepted, that: 'The question of whether Rockdale Beef was an "employer" for the purposes of section 8 (2) of the OH&S Act is an issue which will need to be resolved in the proceedings concerning the prosecution of Rockdale Beef. It may ultimately be necessary for the Court to undertake a detailed analysis of, among other things, a range of financial and business records concerning the affairs of Rockdale Beef, Renod and MCMR. Many of those records are commercially confidential private documents which Rockdale Beef, Renod and MCMR will not wish to divulge to either NAIQ or RACS.' 8 NAIQ complained that the prosecutor was attempting to have the prosecutions run as an enquiry into the identity of the employer, which would have adverse costs implications for its case, as well as prejudice in the conduct of its trial. The prosecution's primary case was that it was not an employer, but that Riverina Agency was. Any officer of NAIQ could be called as a witness in the prosecution case, but the usual limitations as to leading evidence and cross examination would apply. In a joint trial, cross examination of such witnesses by the other defendant would however follow, as well as difficult procedural questions as to such cross examination, so as to ensure a procedurally fair trial for the two defendants. 9 For its part, the prosecution was concerned that separate trials may result in different judges hearing the prosecutions. It acknowledged that the circumstances were unusual and resulted from its difficulty in proving who the employer was - a matter of fact and law. The prosecution's primary position was that Riverina Agency was the employer and that NAIQ was not, but that it controlled the premises. If NAIQ was found to be the employer, the alternative that Riverina Agency was still liable because of control which it had, would be pressed. It was asserted that despite those circumstances, a joint trial would not prejudice either defendant. Justice favoured a joint trial, particularly having regard to the duplication of witnesses in running separate trials. 10 I was unable to accept that view, given the unusual circumstances which here arose for consideration. The prosecution has an acknowledged difficulty in establishing the identity of the actual employer, which it has addressed by the alternative charges laid. There was no suggestion that a situation of joint employment was at issue in the two trials sought to be heard jointly. The circumstances in which and the reasons for which a separate trial had been agreed with Rockdale Beef could not be overlooked. That has consequences which the prosecution has accepted and which it anticipates will impact upon the length of the subsequent trials. In that context, the obvious procedural difficulties which would arise in a joint trial in relation to the other two defendants, could not simply be ignored. The trial process must ensure justice as between all of the parties, in a context where a question fundamental to the respective charges, namely whether or not any of the defendants was an employer, is at issue. That is a matter for the prosecution to establish in each case. 11 It was for these reasons that I exercised the Court's discretion to require separate trials. There was, in fact, no issue that this would lead to different judges having to hear the trials, a matter also impacting upon the conclusion which I reached. Rockdale Beef Pty Ltd 12 Rockdale Beef sought an order for costs in its favour in respect of the motion. It was submitted that the motion should never have been pursued. When the matter was before Boland J in April 2004, when pleas of not guilty were entered, his Honour indicated his view that this prosecution should be heard separately. Despite this, the motion was filed, but eventually not pressed. Costs had been incurred in preparing for the hearing of the motion. The prosecution's acceptance of Rockdale Beef's position was only advised on the day prior to the hearing. 13 The prosecutor's submission was that it had been entitled to pursue the motion. The normal course was submitted to be that there would be a joint trial, even though there was no express provision to that effect made in either the Industrial Relations Act 1996, or the Criminal Procedure Act 1986. There was a discretion, but no statutory guidance as to how it would be exercised. The matter had, however, been dealt with by the Full Court in WorkCover Authority of New South Wales (Insp Lane) v Australian Winch Haulage Pty Ltd (2000) 102 IR 40 at [46]. It followed that there is an onus on the accused to move for a separate trial. The view of Boland J to the contrary was wrong and so it followed that the prosecutor was entitled to pursue the motion. 14 In this case, that onus had not been met by the defendant until the filing of the affidavit of Mr Terrett, which had then been accepted by the prosecutor. It followed that no order as to costs would be made in favour of the defendant. 15 For the defendant it was submitted that the prosecutor was in error as to onus and was in essence seeking to argue the merits of its application for a joint hearing, when it had abandoned pursuit of that course. Consideration 16 The usual order as to costs is that they should follow the event. Here, the prosecutor raised the question of a joint hearing with Boland J, who took a contrary view. Having determined to pursue a motion that a joint trial be ordered, the motion was abandoned once the affidavit of Mr Terrett was received. It was accepted that the information contained therein provided a proper basis for a separate trial. 17 The prosecution relied upon the judgment of the Court of Criminal Appeal in R v Bikic (2000) 112 A Crim R 300, where reference was made to a departure from the 'normal rule, well sanctioned by the highest authority as it is, that persons that are alleged to have taken part in a common criminal purpose should be tried together'. In Australian Winch Haulage, the Full Court observed that the normal method of hearing prosecutions arising from the same accident or injury to be a joint trial of the various defendants. 18 In this case, of course, it was the prosecution which filed a motion seeking a joint trial, the matter having been raised before his Honour Justice Boland, when pleas were entered. His Honour's conclusion that there should be a separate trial, led to the motion being pursued. 19 Mr Skinner explained that it was what appeared in paragraphs 22 and 23 of Mr Terrett's affidavit, which had convinced the prosecutor not to press the motion. There it was said: The question of whether Rockdale Beef was an "employer" for the purposes of section 8 (2) of the OH&S Act is an issue which will need to be resolved in the proceedings concerning the prosecution of Rockdale Beef. It may ultimately be necessary for the Court to undertake a detailed analysis of, among other things, a range of financial and business records concerning the affairs of Rockdale Beef, Renod and MCMR. Many of those records are commercially confidential private documents which Rockdale Beef, Renod and MCMR will not wish to divulge to either NAIQ or RACS. In the period since 1993-1994 when the Boning Room of the Rockdale Abattoir was first established up until 1 August 2001, the Partnership carried on all beef boning, slicing, packing and related activities in the Boning Room of the Rockdale Abattoir. Rockdale Beef, in its capacity as "Manager for and On behalf of Rockdale Beef Partnership" engaged certain Partnership Employees and certain other independent contractors for that purpose during that period.' 20 In those circumstances, I cannot see any basis for a departure from the ordinary course, that costs should follow the event. The defendant has from the outset opposed a joint trial. Boland J did not accept the prosecution's view that there should be a joint trial and so a joinder motion was filed. The defendant then put on affidavit material which the prosecutor accepted and which led it not to press its application for a joint hearing. It is relevant to consider that had that outcome resulted from an application for a separate trial pressed by the defendant by way of motion, it would also have been entitled to an order for costs in its favour. Orders 21 For the reasons given, the prosecutor is ordered to pay Rockdale Beef's costs of the motion, as agreed or as assessed in accordance with the Court's Rules. ------------------------ 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.