Industrial Court of New South Wales CITATION: Inspector Nicholson v Pymble No 1 Pty Ltd [2010] NSWIRComm 79 Inspector Anthony Nicholson (Prosecutor) PARTIES: Pymble No 1 Pty Ltd (First defendant) Silvio Molinara (Second defendant) FILE NUMBER(S): IRC 621; 633 of 2009 CORAM: Marks J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10 and s 10(1) by virtue of s 26 of the Occupational Health and Safety Act 2000 - interlocutory application - lack of evidence - strike out motion dismissed - costs reserved LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 10, s 10(1), s 26 HEARING DATES: 10 & 23 June 2010 (written submissions) DATE OF JUDGMENT: 30 June 2010 Mr R Reitano of counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Legal Group Mr S Molinara (self represented) Second defendant and on behalf of First defendant JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Wednesday 30 June 2010 Matter No IRC 621 & 633 of 2009 Inspector Anthony Nicholson v Pymble No 1 Pty Ltd and Silvio Molinara Prosecutions under s 10(1) and s 10(1) by virtue of s 26 of the Occupational Health and Safety Act 2000 JUDGMENT ON STRIKE OUT MOTION [2010] NSWIRComm 79 1 The prosecutor in these proceedings, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales, has charged Pymble No 1 Pty Ltd with a breach of s 10(1) of the Occupational Heath and Safety Act 2000 ("the Act"). The personal defendant, Silvio Molinara, has been charged with a breach of the same section by virtue of s 26 of the Act in that at all relevant times he was alleged to be a director of Pymble No 1 Pty Ltd. 2 The proceedings arise out of certain incidents that occurred at a building site at 23 Ryde Road Pymble between 1 May 2007 and 22 June 2007. Pymble No 1 Pty Ltd is alleged to have been the owner of those premises. It engaged Millennium Project Group Australia Pty Ltd as its principal contractor to carry out building work at the premises. The prosecutor has alleged that certain aspects of the building work were carried out in an unsafe manner and that there was a risk of injury to certain persons carrying out that work. Those persons are alleged to have been either employed or engaged by named subcontractors who were carrying out work on the site. 3 In essence, the prosecutor alleges that as owner of the premises and notwithstanding the engagement of a principal building contractor, Pymble No 1 Pty Ltd nevertheless had "control", either wholly or in part, of the premises and as such was bound by s 10 of the Act to ensure that the premises were safe and without risks to health and safety of persons performing work at the premises. 4 By a document entitled "Notice in Reply", the defendants have sought a number of orders including the dismissal of the proceedings. As I understand the defendants' principal submission, they seek to argue that the provisions of the building contract exclude any control over the premises for the purpose of s 10 of the Act. 5 The defendants are self represented and Mr Molinara resides in South Australia. He asked that the application be dealt with on the basis of written submissions and the prosecutor consented. 6 In an affidavit filed in support of the interlocutory application, Mr Molinara annexed a document that he asserted was a copy of the building contract between Pymble No 1 Pty Ltd and the principal contractor. The prosecutor submitted that he did not agree to evidence of the building contract being adduced in this manner. On this basis it was said that there was no evidence before the Court to enable the Court to determine the interlocutory application. 7 There are other factual matters that are referred to in written submissions prepared by Mr Molinara. They canvass the circumstances leading up to the appointment of the principal contractor and factual matters that occurred after the building contract was entered into. I agree with the submission of the prosecutor that it is inappropriate and impermissible for the defendants to seek to adduce evidence by way of written submissions upon which they rely in prosecuting the interlocutory application. 8 It is inappropriate and, indeed, impermissible for the Court to determine a strike out motion of this kind without any appropriate factual basis having been established by the receipt of evidence properly given and admitted for the purpose of the proceedings. In these circumstances, the application for dismissal of the proceedings must be dismissed. 9 The defendants also sought orders that the prosecutor provide further and better particulars. I am unsure as to what particulars the defendants seek. The prosecutor's written submissions make the prosecutor's case, which is sought to be made out against the defendants, perfectly clear. It is the case of the prosecutor that: The corporate defendant owned the premises and by reason of ownership of the premises had control, or limited control, of them. The prosecution case is that the corporate defendant had a contract with the principal contractor that confirmed the corporate defendant's control (entire or limited) over the premises as owner. The corporate defendant was obliged to ensure that those premises were safe and without risks to health and safety under the Act. 10 The prosecutor further asserts, as referred to in his submissions, that there were persons performing work at the premises who were not employed by the corporate defendant "(W)ho used the premises as a place of work and the corporate defendant was, by reason of ownership, in control of, or in limited control of, the premises and was obliged by reason of s 10 of the Act to ensure that they were safe." 11 In written submissions, the prosecutor referred to certain provisions of the building contract "which all speak of the control that the corporate defendant retained over the premises under the contract." 12 Furthermore, the prosecutor said: The prosecution case is that there were a series of acts and omissions by the corporate defendant that have been set out in correspondence to the defendants that if taken would have ensured safety to people at the premises. These acts and omissions are in the Applications for Order and include a failure to undertake a risk assessment with respect to people working at height at the premises; the failure to ensure that there was a falls prevention system in place at the premises such as perimeter scaffolding, temporary handrails, the use of falls arrest harnesses, safe work platforms and toe boards or any other combination of them; the failure to provide and maintain either by itself or through others the use of safe work method statements for people who were working at the premises; the failure to provide a safety management plan for the premises; and the failure to provide premises specific induction training to people working at the premises. 13 As is obvious from the position asserted by the defendants and the engagement by the prosecutor, a fundamental issue to be determined in these proceedings is whether and to what extent the corporate defendant, Pymble No 1 Pty Ltd, had control over the premises in circumstances where it had entered into a building contract with a principal contractor. This is a matter that must be determined upon the basis of evidence properly adduced for the purpose of the proceedings. 14 The application filed by the defendants is dismissed. Costs are reserved. 15 The proceedings are set down for hearing for five days beginning at 10am on 25 October 2010. 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.