WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35 Prosecution: PARTIES : WorkCover Authority of NSW (Insp Maltby) & Anor Defendants: Abigroup Contractors Pty Limited & Luis Bustamante FILE NUMBER: IRC5432,IRC5433,IRC5434,IRC5436,IRC5438,IRC5502,IRC5503 of 1999 CORAM: Kavanagh J Limitation Application brought by defendants under s49(4) of the of the Occupational Health and Safety Act 1983 - defendants submit all prosecutions filed out of time as it does not appear from the Coroner's Report or proceedings each offence has been committed. Consideration of evidence from the Coroner's Report or proceedings. Objective assessment required. Consideration of the allegations, that is the alleged acts and omissions of defendants, as pleaded in each charge - question as to whether it appears each offence committed - Finding, if any of the number of alleged particulars against company establish a risk to safety, or as against the individual establish lack of "reasonable care", then it appears an offence was committed. Finding from coronial material it appears each offence has been committed. Summonses against each defendant found therefore issued within time under s49(4) of the Act.

As against Abigroup Contractors (Matter Nos IRC5432,5433,5434,5436,5438 of 1999) - Consideration of liability in five prosecutions brought under either s15(1) and s16(1) of the Occupational Health and Safety Act 1983 covering three distinct periods of time. Defendant company pleads not guilty to each charge. Defendant company contracts for Easy Access and Railway Station Upgrade - then contracts out associated demolition work - two explosions on a construction site during demolition and construction work. Evidence from persons who worked on site. Certificates issued under s128 of Evidence Act to some witnesses. Findings as to credit. Consideration of each alleged failure in the chronology of events - Findings as to whether alleged act or omission established - causal nexus/connection between failures and detriment to safety for employees (s15(1)) or other persons (s16(1)) - Charges proven