Industrial Relations Commission of New South Wales in Court Session CITATION: WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In Liquidation) [2005] NSWIRComm 125 PROSECUTOR: Inspector Kathleen Maltby PARTIES: DEFENDANT: Josef & Sons Contracting Pty Limited (In Liquidation) (ACN 002 844 537) FILE NUMBER(S): IRC 5440, 5441, 5442, 5443, 5444, 5445, 5446, 5447 of 1999 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - prosecutions under section 15 and 16 of the Occupational Health and Safety Act 1983 - two charges dismissed in relation to 4 December CASES CITED: WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) [2005] NSWIRComm 94 DATE OF JUDGMENT: 04/20/2005 PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: LEGAL REPRESENTATIVES: Moray & Agnew DEFENDANT: No appearance JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J 20 April 2005 Matter Number IRC 5440 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5441 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5442 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5443 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5444 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5445 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5446 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 Matter Number IRC 5447 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v JOSEF & SONS CONTRACTING PTY LIMITED (IN LIQUIDATION) Prosecution under s15(1) of the Occupational Heath and Safety Act 1983 JUDGMENT [2005] NSWIRComm 125 1 On 31 March 2005, judgment was given in these matters WorkCover Authority of NSW (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) [2005] NSWIRComm 94. At [32] and [33] I found: 32. For the reasons given, I find the offences charged in relation to 10 November and the period 10 November to 4 December, proven. In relation to 4 December, the prosecution must have an opportunity to make an election as to which two of the four offences charged will be pressed. 33. The matters will be relisted for further hearing on application. Such application should be made within 14 days. 2 In a written submission of 18 April 2005, Mr Skinner of counsel for the prosecutor explained that orders in Matter Numbers IRC 5443 and 5444 of 1999 had been taken out 'inadvertently'. It had never been intended to press those charges, but there had been no written communication given to the Court to advise that position. Nor had this been addressed at the hearing. 3 In those circumstances, the charges in Matter Numbers IRC 5443 and 5444 of 1999 must be dismissed and the charges in Matter Numbers IRC 5441 and 5442 of 1999, in relation to 4 December, found proven. I order accordingly. 4 The matters will be relisted for further hearing on application, which should be made within 7 days. ------------------------ 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.