Industrial Relations Commission of New South Wales in Court Session CITATION : Zelbarry International Pty Ltd v Inspector Christensen [2004] NSWIRComm 183 APPLICANT Zelbarry International Pty Ltd PARTIES : RESPONDENT Inspector Madeline Christensen FILE NUMBER: IRC 3458 of 2004 CORAM: Boland J CATCHWORDS : Appeal - Application for leave to appeal and appeal - Stay application made - Application to Stay penalty - Stay granted LEGISLATION CITED : Occupational Health and Safety Act 2000 CASES CITED : Inspector Christensen v Harnischfeger of Australia Pty Ltd t/as H & P Minepro Services (Australasia) AND Inspector Christensen v Zelbarry International Pty Ltd [2004] NSWIRComm 131 HEARING DATES: 06/21/2004 DATE OF JUDGMENT: 06/28/2004 APPLICANT Mr R Bromwich of counsel Solicitor: Nada Vujat Emery Partners LEGAL REPRESENTATIVES: RESPONDENT WorkCover Authority of New South Wales Mr P J Thompson Solicitors: Moray & Agnew JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 28 June 2004 Matter No IRC 3458 of 2004 ZELBARRY INTERNATIONAL PTY LTD v INSPECTOR MADELINE CHRISTENSEN Application by Zelbarry International Pty Ltd for leave to appeal and appeal against a decision of Justice Haylen on 26.5.2004 in matter no. IRC 4833 of 2003 JUDGMENT [2004] NSWIRComm 183 1 Zelbarry International Pty Ltd ("the appellant") has made application for leave to appeal and appeal against a decision of Haylen J in which his Honour imposed a penalty of $140,000 for an offence by the appellant under s 8(1) of the Occupational Health and Safety Act 2000: See Inspector Christensen v Harnischfeger of Australia Pty Ltd t/as H & P Minepro Services (Australasia) AND Inspector Christensen v Zelbarry International Pty Ltd [2004] NSWIRComm 131. The appellant seeks a stay of the orders against it. 2 The background to the proceedings before Haylen J is summarised in the opening paragraphs of his judgment: 1 On 1 May 2002, Mr Phillip Batterham was working at the Mt Thorley premises of Harnischfeger of Australia Pty Ltd ("Harnischfeger"). Harnischfeger was involved in the maintenance and repair of surface mining equipment used in open cut mining. In conducting this business it had contracted with Zelbarry International Pty Ltd ("Zelbarry") which was a labour hire company. Zelbarry employed workers skilled in the metal fabrication, mechanical, civil engineering, electrical and painting trades and professions for placement in industry. Zelbarry had employed Mr Batterham as a welder and in turn Mr Batterham's services had been supplied to Harnischfeger to perform various types of welding work. On 1 May 2002, Mr Batterham was welding what were described in the proceedings as "wear plates" or "wear bands" to a large mining bucket when a jig failed in the course of this work and struck Mr Batterham in the head, resulting in a depressed fracture of his skull. Inspector Christensen commenced proceedings against Harnischfeger under s 8(2) of the Occupational Health and Safety Act 2000 and also commenced proceedings against Zelbarry under s 8(1) of the Act. 2 Both Harnischfeger and Zelbarry entered pleas of guilty. Because of the common facts and circumstances, the pleas were, by consent, heard together. A significant difference between the defendants, however, was the fact that Zelbarry had no prior convictions under the Act but Harnischfeger had one prior conviction. 3 The defendant, Harnischfeger, was fined an amount of $200,000. 4 The grounds of appeal were: 1 That his Honour erred in law by finding that a second offence under section 8(2) of the Occupational Health and Safety Act 2000 (NSW) with a maximum penalty of $825,000 was not a more serious offence than a first offence under the same provision with a maximum penalty of $550,000 (paragraphs 48-58). 2 That the applicant/appellant has a justifiable sense of grievance, having regard to the penalty imposed on the co-defendant, who was the operator of the worksite and a repeat offender. 3 That the penalty is manifestly excessive in all the circumstances. 5 The grounds for the stay were that: 1 The penalty imposed is excessive and contrary to law. 2 The respondent is not entitled to the payment of a penalty of that magnitude. 3 There is no prejudice to the respondent in awaiting receipt of the lesser penalty sought to be imposed by the Honourable Court. 6 In the oral submissions on behalf of the appellant two points were made in support of the stay application, that is, the penalty of $140,000 was close to being an "unprecedented penalty for a first offence with a guilty plea" and secondly, there was no identifiable prejudice to the respondent if the penalty were not paid immediately whereas it would be a significant impost on the appellant, which was only a "relatively small company". 7 The respondent opposed the stay, submitting that the penalty was within the range available given the nature and quality of the offence. 8 Neither party put anything further of substance by way of evidence or submissions in support of their positions. 9 Whilst proper respect must be shown to the judgment at first instance I consider the grounds of appeal are at least plausibly arguable, although that is not to express any view as to the merits of the appeal grounds. In other words, the grounds are not so implausible as to deny any possibility of success on appeal. That leaves the question of the balance of convenience. This would seem to lie in the appellant's favour. I can see no real prejudice against the prosecutor in the penalty not being imposed immediately whereas the imposition of the penalty on the appellant is likely to have an adverse impact. 10 The prosecutor does, of course, have a pecuniary interest in being granted a moiety of the fine but a delay in receipt of a moiety is not sufficient to tip the balance in favour of the prosecutor. In any event, the hearing of the appeal is scheduled for as early as October 2004. 11 Accordingly, I propose to stay the penalty and the moiety thereof pending the outcome of the appeal. Orders 12 I make the following order: 1 Order 2(b) made by Haylen J on 26 May 2004 in Matter No IRC 4833 of 2003 is stayed pending the outcome of the application by the appellant for leave to appeal and appeal. 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