Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) PARTIES: DEFENDANT: Ove Arup Pty Ltd FILE NUMBER(S): IRC 5482 and 5483 of 1999 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 1983 - s 17(1)(a) - pleas of guilty entered during course of hearing - breaches by one member of an unincorporated joint venture - whether control of defendant limited to its membership of Joint Venture Management Committee - whether there should be one penalty for the Joint Venture divided between the four Joint Venture participants according to their culpability - extent of control of defendant as member of Joint Venture Management Committee and as a single participant in the Joint Venture found to be considerable - general and specific deterrence considered - consideration of penalties imposed on other corporations involved in same incident - principles of parity and consistency considered - overlap in particulars of two charges covering two periods in time - totality - utilitarian value of plea - other subjective factors considered - penalties imposed Abigroup Contractors Pty Ltd v WorkCover Authority of NSW (Inspector Maltby) [2004] NSWIRComm 270 Akula Pty Ltd (No 2) [2004] NSWIRComm 367 MacMillan Britton and Kell Pty Ltd v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 Markarian v The Queen [2005] HCA 25 CASES CITED: Morrison v Akula Pty Ltd [2004] NSWIRComm 41 Morrison v Ureka Opals Pty Ltd [2005] NSWIRComm 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Ltd and anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult and ors [2003] NSWIRComm 452; [2006] NSW CA 28 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd and ors (2002) 116 IR 128 WorkCover Authority of New South Wales (Inspector Page) v Growth Equities Services Pty Ltd, unreported 9 September 1994 HEARING DATES: 30/03/05, 31/03/05, 01/04/05, 04/04/05, 05/04/05, 07/04/05, 08/04/05, 10/04/06/, 11/04/06, 27/04/05 DATE OF JUDGMENT: 07/24/2006 PROSECUTOR: Mr M Joseph SC with Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr P Greenwood SC with Mr R Grady of counsel SOLICITORS: Phillips Fox Lawyers JUDGMENT: - 39 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 24 July 2006 Matter No IRC 5482 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LTD Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 Matter No IRC 5483 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LTD Prosecution under s 17(1)(a) of the Occupational Health and Safety Act 1983 JUDGMENT [2006] NSWIRComm 240 BACKGROUND 1 On 12 October 1999, Inspector Mansell commenced a number of prosecutions against various entities that comprised an unincorporated joint venture which was involved in the upgrade of Kogarah Railway Station. On 4 December 1995 at approximately 2.00 pm, an explosion and fire occurred in Railway Parade, Kogarah: two people died as a result of the explosion and fire and a number of other persons, including members of the New South Wales Police Service, were injured. A second explosion occurred approximately one and half hours after the first and several Fire Officers were injured. 2 Under the Joint Venture arrangements, essentially four companies held a 25 per cent stake in the Joint Venture. In what had come to be referred to as the "Ove Arup Group" for the sake of convenience, there were a number of bodies, namely: Ove Arup Consult Pty Ltd, Arup Partner Pty Ltd and Ove Arup Pty Ltd. In 1999, Inspector Mansell commenced three prosecutions under s 17(1)(a) of the Occupational Health and Safety Act 1983 against Ove Arup Consult Pty Ltd; three prosecutions under s 17(1)(a) of the 1983 Act against Arup Partner Pty Ltd; and three prosecutions under s 17(1)(a) of the 1983 Act against Ove Arup Pty Ltd. 3 Proceedings by way of objection to the continuation of proceedings have been taken by the Ove Arup Group in particular before a Full Bench of the Commission on appeal (see WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd and ors (2002) 116 IR 128, before the Court as presently constituted (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult and ors [2003] NSWIRComm 452), and before the Court of Appeal ([2006] NSWCA 28) 4 In March 2005 the prosecutions commenced against this defendant and the other participants in the Joint Venture - eight hearing days were occupied and the matters stood over for a considerable period to allow challenges in the Court of Appeal to be finalised. A further five weeks were set aside to complete the hearing commencing in March 2006. When the matters were listed for substantive hearing in this Court (after proceedings in the Court of Appeal were determined) it was announced that, as a result of extensive discussions, Inspector Mansell would proceed in relation to two charges against Ove Arup Pty Ltd and that the remaining seven prosecutions against Ove Arup entities would be withdrawn and dismissed. The arrangements between the parties were such that, although a significant degree of agreement could be reached about relevant facts, other issues remained in disagreement and, in particular, the extent of the control exercised by the defendant at the Kogarah worksite and the level of the defendant's culpability. In those circumstances, a considerable amount of additional oral and documentary evidence was then produced on the sentencing hearing of the defendant. THE CHARGES 5 In Matter No IRC 5482 of 1999, the charge was that the defendant on or about 10 November 1995, being a person who had, to any extent, control of non-domestic premises at Kogarah which had been made available to persons (not being the defendant's employees) as a place of work, did fail to ensure the premises were safe and without risks to health contrary to s 17(1)(a) of the Occupational Health and Safety Act 1983 in that it had a charged gas supply line situated in an area where construction work was designed to occur. The particulars of the charge were: (1) The Defendant was a participant in an unincorporated joint venture known as Stations Upgrade Joint Venture. (2) The participants of the joint venture registered a business name, Capital Works Management (CWM), which name it used for the purpose of identifying the joint venture in its trading activities. (3) The State Rail Authority of New South Wales (SRA) engaged the Defendant and the other participants in CWM for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station Upgrading (KSU). (4) On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the SRA to perform construction work on the KSU. (5) On or about 8 November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited (Josef) to perform working including the demolition of Shops 3,5,7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. (6) Because of the nature and difficulty of the work place at the KSU which was situated adjacent to a railway station being used continuously by passenger trains and in the centre of the Kogarah Shopping Centre, safety was an acute problem. (7) CWM had control of the KSU to a degree pursuant to the terms of the engagement with the SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risks to health. (8) Pursuant to the terms of the engagement CWM appointed a superintendent charged with the duty of ensuring the work was conducted in accordance with contracts in a safe manner without risks to health. (9) On or about 10 November 1995 John Princi, an employee of AGL Gas Networks Limited (AGL), attended the KSU and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. (10) The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. (11) The gas supply line remained charged. (12) The existence of a charged gas supply line situated in an area where construction was designed to occur was inherently dangerous. (13) The Defendant failed to ensure the charged gas supply line at the KSU was adequately protected. (14) The Defendant failed to ensure that the gas supply line on the KSU was adequately identified. (15) The Defendant failed to ensure the gas supply line on the KSU was adequately marked. (16) The Defendant failed to ensure that the KSU over which it had control to a degree was safe and without risks to health. (17) The Defendant failed adequately to supervise Abigroup and Josef in the performance of their duties to ensure that the KSU was safe and without risks to health. (18) The Defendant failed adequately to inspect the KSU or have in place a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risks to health. (19) The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. (20) The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 6 In Matter No IRC 5483 of 1999, the defendant was charged that between 10 November 1995 and 4 December 1995 being a person who had, to any extent, control of non-domestic premises at Kogarah which had been made available to persons (not being the defendant's employees) as a place of work, did fail to ensure the premises were safe and without risk to health contrary to s 17(1)(a) of the Occupational Health and Safety Act 1993 in that it had a charged gas supply line situated in an area where construction work was designed to occur. The particulars of the charge were: (1) The Defendant was a participant in an unincorporated joint venture, known as the Stations Upgrade Joint Venture. (2) The participants of the joint venture registered a business name, Capital Works Management (CWM), which name it used for the purpose of identifying the joint venture in its trading activities. (3) The State Rail Authority of New South Wales (SRA) engaged the Defendant and the other participants in CWM for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station upgrading (KSU). (4) On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the SRA to perform construction work on the KSU. (5) On or about 8 November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited (Josefs) to perform work including the demolition of Shops 3,5,7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. (6) Because of the nature and difficulty of the work place at the KSU which was situated adjacent to a railway station being used continuously by passenger trains and in the centre of the Kogarah Shopping Centre, safety was an acute problem. (7) CWM had control of the KSU to a degree pursuant to the terms of the engagement with the SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risks to health. (8) Pursuant to the terms of the engagement CWM appointed a superintendent charged with the duty of ensuring the work was conducted in accordance with contracts in a safe manner without risks to health. (9) On or about 10 November 1995 John Princi, an employee of AGL Gas Networks Limited (AGL), attended the KSU and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. (10) The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charge gas supply line within the KSU where construction was designed to occur. (11) The gas supply line remained charged. (12) Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. (13) A stake was used to mark the gas supply line when it became exposed. (14) The existence of a charged gas supply line situated in an area where construction was designed to occur was inherently dangerous. (15) The Defendant failed to ensure the charged gas supply line at the KSU was adequately protected. (16) The Defendant failed to ensure that the gas supply line on the KSU was adequately identified. (17) The Defendant failed to ensure the gas supply line of the KSU was adequately marked. (18) The Defendant failed to ensure that the KSU over which it had control to a degree was safe and without risks to health. (19) The Defendant failed adequately to supervise Abigroup and Josefs in the performance of their duties to ensure that the KSU was safe and without risks to health. (20) The Defendant failed adequately to inspect the KSU or have in place a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risks to health. (21) The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. (22) The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 7 While the Agreed Statement of Facts does not deal with the issue of the defendant's level of control of this worksite (an issue that was the subject of much detailed additional evidence and submissions), the Agreed Statement of Facts does, together with the particulars of each charge which have been accepted by the plea of guilty, set out important matters relating to each offence. It is appropriate therefore that regard be had to that document in the context of this decision and it is set out as an Appendix to the judgment. THE EVIDENCE 8 A great deal of evidence was received by the Court. The following summary of the evidence of witnesses is regarded as particularly significant in deciding the issues tendered for decision by the parties. Doctor Robert Care as Chair and Chief Executive Officer of Arup Australasia provided affidavit evidence and was cross-examined. Dr Care was a Director of several of Ove Arup companies, a number of which were described as "Arups Australasia". He described how the Arup engineering practice was founded in Dublin and London and came to Australia in 1963 to undertake the structural design of the Sydney Opera House. Arup commenced as an Australian partnership of engineers in November 1965. Between January 1983 and October 2001 the firm traded as Ove Arup Partners being a partnership of three companies, namely, Ove Arup Pty Ltd, Ove Arup Consult Pty Ltd and Arup Partner Pty Ltd. Since 1 October 2001, Ove Arup Pty Ltd had been the sole operating entity controlling the firm's engineering business. Dr Care stated that Ove Arup operated as a company and not as a partnership. 9 Dr Care dealt with Arup's values which were said to encompass not only a focus on the work of engineering. The essential ethos of these values had been formally espoused in the speech of Sir Ove Arup in July 1970 known in Arups as "the key speech", a copy of which was before the Court. It was said that the principles identified in the key speech recognised the importance which the social role of quality and socially aware engineering could play and that the principles recognised that the important elements in achieving those aims included a commitment to an excellent quality of work and a high level of respect for employees and clients. Listed amongst the main aims of the firm were quality of work, total architecture, humane organisations, straight and honourable dealings, social usefulness and reasonable prosperity of members. The core values that had been identified in the key speech and which were still relevant today led to Arup seeking to ensure that it was also always associated with quality, that it acted honestly and fairly in dealing with its staff and others and that it enhanced the prosperity of all Arup's staff. Dr Care stated how these aims and core values were relevant to him and why he had returned to Arup in 1990 having left in 1986. A list of awards achieved by Arup in the 35 years to 2005 was attached to the affidavit and mention was also made of a 2006 citation, being Ove Arup's fifth consecutive citation, awarded to only 116 organisations as an "EOWA employer of choice for women". 10 In relation to the wider community, Arup used its knowledge, expertise and resources for charitable purposes and as a benefit for the wider community. For example, in 2005, Arup Cause was launched as part of its 60th Anniversary: Arup Cause focused primarily on Arup's partnership with Water Aid, an international non-government charity organisation seeking to provide clean water, sanitation, hygiene and education to the world's poorest people. Arup Australasia was also a corporate member and founding sponsor of RedR Australia: Dr Care was a director of that body. RedR Australia was a body of registered experts in disaster relief with the aim of providing experts to assist in disaster relief by applying their knowledge and expertise in addressing the consequences of disastrous events for example, by building infrastructure. A contribution to RedR Australia by Arup involved an annual sponsorship of $8,000; encouraging staff to be members; providing staff to attend disaster relief; paying for the relevant training of staff to undertake disaster relief, paying for travel and accommodation expenses for incidental personal expenses; and encouraging donations to RedR Australia. Six employees had been trained for RedR Australia registration and four Arup's employees had undertaken tours of disaster relief duties including the Pakistan earthquake, and a further 40 had recently expressed interest but were yet to be trained. 11 Ove Arup also played a role in Australian Higher Education and long term research programmes in a number of ways. Firstly, it was a founding industry partner of the Co-Operative Research Centre in construction innovation by which the Australian Government invited industry to support and participate in long term research programmes. Ove Arup's contribution over five years of operation had been in excess of $700,000. In addition, three principals of Ove Arup (including Dr Care) were adjunct professors at local universities. These honorary positions provided support to tertiary education at a strategic level through participation on industry advisory boards, deans' committees and similar bodies. Further, Ove Arup was a collaborating organisation in two large Commonwealth supported Australian Research Council Linkage Research Grants. These grants had the dual function of providing a return on investment to collaborating organisations while also benefiting the common good by mandatory public dissemination of results through seminars and educational programmes. Dr Care also listed a number of Arup's donations to charities in the last two financial years. 12 In relation to occupational health and safety, it was said that Arup took its obligations in this area very seriously and had never been the subject of an occupational health and safety prosecution of any nature apart from the present matters. All employees of Arup were provided with a variety of health and safety documents upon commencing work. Arup had an occupational health and safety officer since early 1998 encouraging a pro-active health and safety culture amongst staff at all levels in the region and supporting the delivery of the Arup's health and safety systems by ensuring compliance with its legal obligations: in particular, this occurred across the design and delivery of projects, on site and in the general office environment. There was provision of pragmatic support and guidance embracing all aspects of health and safety to all internal clients and ensuring that the firm's interests were maintained to a high standard. The role involved developing and assisting in the delivery of appropriate health and safety training modules across all areas of the business and for all grades of staff and the position acted as a focal point in the co-ordination and delivery of health and safety matters within the Australasian region. 13 Dr Care then dealt with the creation of the Stations Upgrade Joint Venture Agreement in June 1994, later renamed Capital Works Management ("CWM"). Ove Arup joined with three other companies to form an unincorporated Joint Venture. The four companies were described as follows: Group One Interiors Pty Ltd, a construction management company; Edwards Madigan Torzillo Briggs Pty Ltd (EMTB), an architectural company; TMG International Pty Ltd (TMG), a transport systems company; and Ove Arup & Partners, a consulting engineering group of the consulting engineers Arup Partner Pty Ltd, Ove Arup Consult Pty Ltd and Ove Arup. Within the Joint Venture Ove Arup was considered a single entity and that entity was one of four members of CWM. 14 The object of CWM was to win the project management services contract in relation to the State Rail Authority of New South Wales (SRA) Station Upgrade Programme. That programme was an initiative between SRA and the State Government involving the proposed upgrading of 294 railway stations throughout SRA metropolitan area. Work relating to the management and implementation of the programme was initially conducted by SRA. Work at Kogarah Railway Station formed only one part of the overall programme. It was a huge programme and there were numerous railway stations simultaneously undergoing some form of restorative work both before and after the Kogarah Station Upgrade. 15 It was understood that the idea of the Joint Venture to tender for the project management services contract was originated by Mr Coleman, a director of TMG and Mr Thornton a principal at the time of Arup. The idea was to pool the resources of a group of companies each having distinct areas of expertise with the aim of creating a consortium that would jointly tender for the project management services contract. In the pooling of resources, it was intended that TMG would provide project management, rail systems and engineering expertise, Ove Arup would provide project management and engineering expertise, EMTB would provide architectural design management expertise and Group One would provide construction management expertise, including the superintendence of construction contracts. Mr Coleman and Mr Thornton had prior working relationships and knowledge of EMTB and Group One, and, knew of their area of expertise while Group One, TMG and EMTB had each worked with SRA on previous projects which was considered a significant factor to enable the Joint Venture to win the contract. 16 Dr Care's involvement with the CWM project began in approximately September 1993. His initial involvement was in the preparation of the tender submission provided to SRA. He regarded himself as being appointed to this role because of his experience in preparing other large tender documents and he undertook this work jointly with Mr Owens, then an employee of TMG. On 29 July 1994, SRA awarded the contract to the group of companies as a consortium rather than in the name of CWM. 17 Particular aspects of the Joint Venture agreement were dealt with by Dr Care. The four participants in CWM each had a 25 per cent interest with Ove Arup Partners being considered as one entity. Subject to other determinations by the Management Committee, employees were engaged by the participant company having expertise in the particular area in which that employee was to operate and thereafter that employee was seconded to CWM. Reimbursement to each CWM participant was based on the costs of each employee seconded to CWM by that participant. The rights, duties, obligations and liabilities of the CWM participants were in every case to be several and not joint or joint and several. 18 The agreement provided that the relationship between the participants was one of joint venturers and nothing in the agreement was to constitute any of them as agent or partner of any other or to create an agency or partnership for any purpose. Except as otherwise provided in the agreement, a particular participant had no authority to act for or create or assume any responsibility or obligation on behalf of any other participant. Particular responsibilities and duties were then allocated, with Group One having responsibilities and duties in relation to construction management, EMTB having duties and responsibilities in relation to architectural and design management, TMG being allocated project management, rail system and engineering and Ove Arup being allocated project management and engineering. A Management Committee was established with specified duties and powers and the four person Management Committee had equal representation from each of the CWM participants. 19 The terms of the joint venture agreement were incorporated into the project management services contract between the SRA and CWM. By reference to an Ove Arup letter written on behalf of the consortium to the SRA, Dr Care believed that CWM had clearly made known its structures and intentions to the SRA and others. In this way, in Dr Care's understanding, Ove Arup's only responsibility was in relation to "project management and engineering" and the only CWM participant directly responsible for construction management was Group One. The only CWM participant directly responsible for architectural and design management was EMTB. It was Dr Care's belief from the outset that any obligations and duties imposed on CWM arising from the project management services contract or in the Abigroup building contract were to be understood in the context of the terms of the Joint Venture agreement which provided for the separation of roles and areas of expertise of each participant in CWM. 20 Dr Care gave evidence of his understanding of the operational features of CWM as well as his "intention" in relation to that matter. In his view, each participant in CWM was to be responsible only for specific tasks that fell within the relevant stated area of their expertise; each participant relied on this self-stated expertise by each participant when entering into the Joint Venture agreement; each participant appointed specialist personnel to ensure compliance with the specific requirements of its field of expertise and those persons were then seconded to CWM; each member monitored the day to day conduct of their own employees and groups and, largely, each member had to deal exclusively with their own areas. The participants did not assign employees with overlapping skills in an effort to cover or supervise another participant's dedicated area of operation. There was no ranking of participants within CWM with all members equal in the sense that all were entitled to have a person on the Management Committee and were remunerated on the same basis. 21 This view of the operation of the Joint Venture was said to be the firm understanding of Dr Care and the other participants. He would not have advised or willingly permitted Ove Arup's involvement in the Joint Venture if its responsibilities and/or liabilities were other than as set out in the Joint Venture agreement. In his view, the inclusion of documents outlining each participant's specific area of expertise in the tender material, together with the provisions of the joint venture agreement, was to clearly demonstrate that division of expertise and responsibility to SRA. The inclusion by SRA of that material as part of the project management services contract between SRA and CWM demonstrated SRA's acceptance of those matters. 22 Because of the way the Joint Venture was established, including the provision of the pre-registration material by each participant, Dr Care on behalf of Ove Arup stated that there was no reason to believe that the persons engaged by any of the CWM participants (including Group One, TMG or EMTB) and seconded to CWM was not suitable or sufficiently qualified. No employee of Ove Arup had reason to believe that persons engaged by any of the other participants and sent to CWM and seconded were not suitable or sufficiently qualified. In keeping with the assigned areas of expertise under the Joint Venture agreement, Group One (being responsible for construction management) was to provide the construction manager. Group One appointed Mr Dilly to that role. Edwards Madigan Torzillo Briggs was to provide a design manager and appointed Mr Willoughby to that role. Ove Arup was responsible for project management and engineering and appointed Mr Burgmann to the role of consultant's representative. Under the terms of the building contract entered into between the SRA and Abigroup in relation to the Kogarah Station, the superintendent of that contract was to be the "construction manager Capital Works Management", and Mr Dilly was the superintendent of the building contract. 23 Dr Care had been present in Court during Mr Dilly's evidence as had another principal of Ove Arup, Mr Humphries. He had read the transcript of Mr Dilly's evidence and had formed the opinion that Mr Dilly had a very narrow understanding of his role as superintendent of the building contract. Hearing Mr Dilly's evidence was the first indication Dr Care had about Mr Dilly's narrow view of his duties and responsibilities. Mr Dilly had said that it was not part of the superintendent's role to enquire of contractors or sub-contractors as to whether a given situation gave rise to safety issues; he also did not consider that he had any obligation to protect the public from any of the work undertaken at Kogarah. Based on his experience as an engineer and his involvement with engineering and construction projects, Dr Care considered that such an approach or understanding of the role of the superintendent was both incorrect and unacceptable. As the construction manager of Group One, Mr Dilly, in his view, had a direct responsibility in respect of occupational health and safety matters on any site connected with his duties. As CEO of Arup Australasia he would not expect that any employee of Ove Arup would hold such views. 24 The Management Committee was created under the terms of the Joint Venture agreement and Dr Care was a member of the Management Committee until approximately September 1994. He regarded the main purpose of the Management Committee as being to facilitate the operation of the business of CWM and to facilitate its clients' relationship with SRA. It was also the forum for the four CWM participants to interact with a view to making decisions about the future conduct and business of CWM such as tendering for other work. The Management Committee was not set up and did not operate to arbitrate on technical issues that arose within each participant's allocated area of expertise. 25 According to Dr Care, the Management Committee was not empowered to, nor did it, involve itself in the employment or engagement of persons for the project. Although the Management Committee had the power in certain circumstances to require a participant to remove an employee from the project, the responsibility for replacing such an employee rested with the participant and not the Management Committee. The Management Committee had a chairperson, a role that was rotated every six months so that each participant of CWM nominated a chairperson. Dr Care was the first chairperson. Mr Burgmann, an employee of Arup, acted as secretary to the Management Committee but was not a member of the committee and had no voice or vote on it. The members of the Management Committee had one vote each so that Arup had only one vote out of the four participants. If a participant felt that an issue had arisen within that participant's sphere of responsibility that required the input of the Management Committee, then the Management Committee relied on that participant's representative on the Management Committee to advise it of the emergence of such issues. In his role as a member of the Management Committee and otherwise, Dr Care said he was never advised of any concerns about the presence of a live gas line at the Kogarah railway site. To the best of his knowledge, no employee of Arup was ever advised about any concerns over the presence of a live gas line at the Kogarah railway site. 26 The consultant under the project management services contract was CWM. That contract provided for the appointment of a consultant's representative and Mr Burgmann was appointed to that role. Since late 1995 and continuing, it was Dr Care's understanding that the consultant's representative was the formal point of contact between CWM and SRA and would communicate with the Authority's representative. The consultant's representative was responsible for the orderly operation of the entire stations upgrade programme and as part of that responsibility would be concerned with issues concerning the co-ordination of the activities of CWM personnel, costs, allocation of resources and whether contracts were running to schedule. The consultant's representative would only become involved in the detail of the particular project if alerted to an issue on that project or if specifically requested to attend to some issue, and would be reliant on the managers to be informed of issues that had arisen within a particular project. The role did not supervise and was not expected to supervise the activities of the managers appointed to particular areas of expertise within CWM. Today, the consultant's representative role would be more appropriately referred to as "programme manager". This role was to be contrasted with that of the various project managers appointed to provide specific expertise to projects within the upgrade programme, such as Mr Dilly, who was the construction manager to the programme and was the superintendent of construction projects within the programme, and also Mr Willoughby, who was appointed design manager to the programme and was responsible for design drawings on design projects within that programme. 27 In cross-examination, Dr Care accepted that, under the contract with the SRA, the consultant was the Joint Venture of four participants. He agreed that Ove Arup had held itself out as competent in project management and engineering and had provided material to this effect to the Joint Venture. When asked what management duty Ove Arup had at Kogarah, Dr Care replied that the prime role of Ove Arup as project manager was to project manage the whole programme. He could not say precisely what responsibilities and duties Ove Arup had at Kogarah, but it was to deliver in relation to the whole programme. It might receive reports on safety or other matters on the project and, if it believed the reports were inaccurate or wrong then it would take action in relation to them. Ove Arup's role in relation to safety was that if it received a report that there were no safety provisions then action would be taken: if there was no such report, then no action would be taken. He denied that there was no duty to be pro-active in relation to safety and agreed with the need to set up a pro-active culture of safety and to follow through on it. 28 It was put to Dr Care that his evidence appeared to suggest that it was Group One's responsibility and only Group One's responsibility to be construction manager under SRAs contract. Dr Care said that, through the Management Committee, Ove Arup had a responsibility for the delivery of the whole project and that responsibility was delineated but, secondly, Group One, in his opinion, did have a role in construction management and they appointed the project and construction manager and superintendent to carry out those tasks. He accepted that, in fact, it would be more appropriate under the terms of the contract to say that Group One provided a superintendent: he then accepted that the Joint Venture appointed the superintendent under their contract with the SRA. 29 Under the Joint Venture contract with SRA, the Joint Venture and the participants through the Management Committee would ensure that the scope of services set out in the contract would be provided. The participants would not necessarily ensure the provision of these services through the consultants' representative as Dr Care did not regard that person as being representative of all the participants. Dr Care, when pressed, accepted that the consultant's representative would represent the consultants and would do so by meeting with SRAs project manager. At times, he would be a representative of all the participants. He was not aware of Mr Burgmann having more than one role or a role other than the consultant's representative. 30 It was conceded by Dr Care that the four participants accepted the responsibility for the work set out in the scope of services clause, namely: Administration of the contracts in the role of superintendent or engineer as appropriate for all contracts and programme It was the role of Group One as construction manager to administer the contracts in the position of superintendent or engineer. The overriding responsibility was that of the Management Committee to ensure that the construction manager carried out his role. Dr Care did not believe that Ove Arup was the project manager as it undertook the responsibilities and duties of project management. In the role of project management, it was not necessarily the role of Ove Arup to ensure that the services to be provided were undertaken properly by the construction manager. 31 It was accepted by Dr Care that, under the contract, the management of each project individually was the role of the Joint Venture via the Management Committee and that they would have had project managers performing that task. Ove Arup had offered Mr Burgmann in the role of consultant's representative, with his expertise being one of project management and engineering. Dr Care accepted that, under the contract, the consultant was to be nominated superintendent of all the contracts including the Abigroup contract with SRA. Dr Care said he could not answer whether or not Mr Dilly from Group One was appointed superintendent of the Abigroup contract because the Joint Venture delegated that position to him, because he did not know what was involved in the process. He expected experts in project management to enquire as to a person's view of project management before appointing them but he did not know if that had been done by anyone in relation to Mr Dilly. 32 The Management Committee of the Joint Venture had the power to ensure that the Occupational Health and Safety Act 1983 was complied with in relation to the programme and that responsibility was set out in the contract. Dr Care, however, had no knowledge of what the Management Committee did in relation to that responsibility. Someone who was project managing the Kogarah site would be expected to have systems in place to ensure compliance with the Occupational Health and Safety Act 1983. That responsibility might be satisfied by the appointment of a competent person as construction manager. The Management Committee should have acted pro-actively to ensure that certain things were done on the site. Dr Care did not know, however, whether or how this was done by the Management Committee before December 1995 at the Kogarah site. It was also accepted that Ove Arup and the participants had put forward documents to the SRA as examples of the way in which they would manage the project. In these documents provided to the SRA, both Ove Arup and TMG as part of the Joint Venture held themselves out as being competent in project management but Dr Care did not know if those types of plans had been put into operation at the Kogarah site. Dr Care did expect a proper project manager and the Joint Venture to have those systems in place. It was Dr Care's understanding that Ove Arup's responsibility for what occurred at the site came from its participation in the Management Committee and that the defendants had no responsibility in respect of Mr Dilly. Ove Arup would have responsibility for Mr Burgmann because he was an employee of Ove Arup and Partners. 33 Mr John Burgmann was a principal with the Ove Arup partnership. In 1994 he was employed by Ove Arup and Partners to perform project management work. He was not involved in the consortium's tender for SRA's station upgrade work but, as it got closer to the award of the contract, he said he was put forward as the person who would fulfil the role of consultant's representative. Among the responsibilities of the consultant's representative was the management of the day to day activities of the project team, the provision of adequate resources to undertake work, managing Joint Venture resources, acting on behalf of the Joint Venture in dealings with SRA, preparation of the quality plan, introduction of quality procedures, also the preparation of the programme manual, project management plan and the introduction of management control systems. 34 Mr Burgmann denied representing Mr Dilly at meetings of the Management Committee of the Joint Venture: his reports were passed to the Management Committee through Mr Burgmann. Mr Burgmann saw his role in the management sense as co-ordinating the activities of the different Joint Venture staff. He did not regard himself as being in a position to direct the activities of others but merely to co-ordinate their activities so that reporting would come together at the right time from the different sources within the Joint Venture. Mr Dilly did report to him in terms of progress and difficulties that might need to be addressed. Mr Burgmann disagreed that Mr Dilly would show him any correspondence before it was sent to the SRA, nor would he seek approval for it. 35 As Mr Burgmann saw it, Mr Dilly was the superintendent of the contract and, in addition as contract construction manager, was involved in the pre-planning and how work might proceed even before Abigroup came to the site. Mr Dilly was superintendent of the contract between Abigroup and the SRA under that contract and was the construction manager involved in planning under the Joint Venture contract with SRA. 36 It was accepted that the Joint Venture had obligations under its contract with the SRA and that contract ran with its responsibilities over a time when there were also superintendent's responsibilities in relation to the Abigroup contract with SRA. Under the Joint Venture contract there were design and quality assurance obligations as well as a requirement that the consultant prepare and administer a safety plan for occupational health and safety. The consultant was the Joint Venture. Mr Burgmann said that his role was to co-ordinate the activities of the Joint Venture members and each of the Joint Venture participants had responsibilities allocated to them. In ensuring that all work on the programme complied with the Occupational Health and Safety Act 1983, design aspects of that responsibility would come under the design manager's responsibility and those to deal with the contract managers would have been the responsibility of the construction manager. His role as project manager was primarily performed by co-ordinating activities and was largely monitoring progress by time and money. He was reporting to the SRA on a monthly basis and reporting to the Joint Venture members through the Management Committee. He did not think it was part of his role to check what Mr Dilly was doing but, if he became aware that something seemed untoward, then he would talk to him about it. 37 In his role to ensure matters like adherence to quality standards, Mr Burgmann performed that role by asking pertinent questions in meetings but not by duplicating the work. There were internal meetings, usually fortnightly, where each of the current projects were reviewed as to progress in time and outstanding difficulties, approvals, documentation and costs etc. His co-ordination role was important because there were four different organisations undertaking different responsibilities and it was necessary to bring these together for reporting in a consolidated way, whether reporting to the Management Committee or to SRA. In his role, he was managing the activities of the project team not the projects. 38 Mr Burgmann was of the view that neither he nor the construction manager or anybody else from CWM Joint Venture had any ability to direct activities on site because that was the responsibility of the contractor. A direction could not be given as superintendent because the superintendent did not direct but administered the contract. While certain directions might be given, they were not in relation to day to day activities on the site. If there was a code not being complied with, the superintendent would draw it to the attention of the contractor and, if the contractor did nothing, the superintendent would have the power to stop the work or direct something in the alternative. That was the type of duty he had in ensuring that Mr Dilly performed that task. There was a quality manual that set out procedures for the various members to follow which was prepared by the Joint Venture: it was part of his responsibility to ensure that this manual was followed by the different personnel who were seconded to the Joint Venture. The manual was used to ensure that, across all areas of work being undertaken by the Joint Venture, a certain level of quality procedure was adhered to: it was through the individual managers that Mr Burgmann ensured that the various participants complied with the manual. It was impressed many times at internal management meetings that these quality standards were to be complied with in both design and construction and in other areas undertaken by the Joint Venture. 39 Mr Burgmann was a principal in Ove Arup rather than a partner but he believed that he had the authority to approve documents used in the Joint Venture and that he did not need to consult anyone within Ove Arup for that purpose. 40 In re-examination, Mr Burgmann said that project procedures were prepared by the Joint Venture that dealt with, amongst other things, safety. That document had been forwarded to a number of people, including Mr Dilly, and Mr Burgmann had discussed that document with Mr Dilly. Various people had been contributing to components of it as it was put together. A copy of the procedures was sent to th SRA as a condition of the contract as it had to approve them. Mr Burgmann recalled that, in approximately mid-1995, discussions commenced with SRA about safety on sites and whether sufficient was being done both in terms of the observance of safety requirements and the recording of any breaches so that they could learn from those matters and, with the approval of SRA, the Joint Venture engaged a specialist to review the safety processes that were being used on the whole programme, not just what CWM was doing. A draft report was issued to SRA. 41 Some months after the accident at Kogarah, CWM decided to take a pro-active approach and made recommendations to SRA about how their responsibilities could be more adequately fulfilled through tasks that might be undertaken by CWM personnel. As a result of this initiative, additional work was undertaken by the Joint Venture over and above the work that was already being arranged. There was an agreement that the Joint Venture would provide an additional part-time person as a safety auditor because either SRA did not want to or did not have the resources to provide that person itself. Such person could have been provided to SRA by CWM but, ultimately CWM provided the safety auditor to concentrate on those safety audits and to analyse their results. That was a variation of the contract and recognised by SRA as additional work. 42 Mr Burgmann had been unaware that Mr Dilly was of the view that he had no responsibility at all in relation to the gas line at the site. If he had known Mr Dilly's view, he would have told him that, if he did not have legal responsibility he would have perhaps a moral responsibility to hammer home to the contractor that the matter had to be treated carefully. Mr Burgmann did not believe that Mr Dilly was in a position to or obliged to tell the contractor how to handle it but it certainly had to be handled appropriately. 43 Mr Burgmann clarified the contractual arrangements stating that the superintendent would become the construction manager for CWM and that was how Mr Dilly had become the superintendent. It was a two part nomination. The wording of the construction contract said that the principal, SRA, would nominate the superintendent. Then, in a separate letter from SRA to the contractor Abigroup, it was said that the superintendent was the construction manager of CWM. By arrangement within the Joint Venture wherein various roles would be fulfilled within their area of expertise, the construction manager was the responsibility of Group One: Mr Dilly was appointed by Group One as superintendent. 44 Mr Gary Dilly worked for CWM in 1995 as a construction manager. Prior to that position, Mr Dilly had operated on his own account as a construction consultant and had undertaken some work on the station upgrade programme. He was approached by the managing director of Group One to take up a position. In that position he reported to Mr Burgmann and no one else. He attended formal internal meetings and was brought up to date on activities at the CWM office in Clarence Street Sydney. During the time in this position he always worked out of the Clarence Street office of CWM. 45 Mr Dilly was advised that, at some point, he was to be the "superintendent". He had no other duties other than being a superintendent: in particular he did not have any duties to establish safety plans or to establish procedure manuals or capital works management programmes. He had no duty to inspect or settle the appropriateness of safety plans or procedures that might exist nor did he have any role to play in respect of the establishment of any safety plan by CWM. He was not aware of any auditing programme that CWM might have had in existence in relation to quality planning or safety planning. 46 Mr Dilly established the performance of duties as superintendent from the contract document between SRA and whoever was carrying out the works. He did not have regard to the contract between SRA and the Joint Venture but looked to the contracts with the head contractor. In relation to being the superintendent of the contract between the SRA and Abigroup, he had a copy of that contract and had read it. He had not previously been engaged as superintendent before taking up this position. He had recommended that Mr Sibley take up duties as the superintendent's representative. Although reporting to Mr Burgmann, Mr Dilly did not recall Mr Burgmann giving him any direction or any assessment of how he was performing his duties. 47 In his role as superintendent, Mr Dilly did not need to attend the sites in respect of the contracts of which he was superintendent, although it was likely that he did so. His duties as superintendent of the Abigroup contract were the same as with other head contractors. He had attended some site meetings at Kogarah and might have been present on the site three or four times before the contract with Abigroup had been entered into and had done so to see how the job might be performed. In relation to the Abigroup contract ensuring the terms of that contract were complied with was assigned, to the extent that he could, to Mr Sibley. He read the terms of the role of the superintendent narrowly: some of the clauses required that the contractor notify the superintendent, which was a duty for the contractor. He did not consider he had a role in ensuring that the contractor complied with the provisions by informing him of the existence, for example, of underground services. There was no role for the superintendent to audit the obligations of the contractor under the contract and he was never asked or instructed to take an audit of contractors under the contract. He had no role in the creation of a document dealing with safety audits as a draft procedure for CWM on the stations upgrade project. Mr Dilly said he did not undertake any role in relation to safety audits under Joint Venture procedures. Under the contract, there were certain duties for the superintendent, and the contractor was to execute the work in accordance with the contract and with any direction made by the superintendent. Mr Dilly did not understand, however, that it was his role as superintendent to ensure that the work under the contract was executed in accordance with the contract. The superintendent did not supervise the work and any omission by the contractor would be a breach of contract. For instance, the location of underground services was of no relevance to the superintendent and he had no duty to enquire of the contractor whether any inspection had taken place of such services. He had left it to Mr Sibley to interpret his role as the superintendent's representative at Kogarah. He did not monitor Mr Sibley to see whether he had complied with the contractual terms of the contract: he had never been asked to perform that task. The superintendent's powers to suspend works had been assigned to Mr Sibley. 48 The ability to suspend works for the protection of employees and the public did not require an assessment of those risks but only that he should become aware of risks, but not by his own continuous assessment. There was no particular way Mr Dilly could become aware of risk. It was his belief that the superintendent was to be passive as to the state of safety on the site. There were obligations in the contract in relation to demolition which were obligations upon the contractor. There was no obligation upon the superintendent to ensure that the contractor carried out that requirement. 49 In relation to the work plan, Mr Dilly expected Mr Sibley to see that there was such a plan but not to approve it or its terms. If he had been informed of hazardous materials on the site he would have noted it but would not have instructed sub-contractors to do something about it. He was aware that there was gas on site and he considered it hazardous material but he did nothing about it in his role as superintendent. 50 In relation to the demolition code, he had no role as superintendent to ensure that the code was kept on site. As to the requirement that there be no excavation to within one metre of services without prior approval, Mr Dilly stated that it was not specific as to who would give that approval but he thought that perhaps it was the authority controlling the service. In his experience, it was not the superintendent who gave approval. Mr Dilly had never seen Abigroup's plan in relation to quality assurance manuals or a quality assurance plan as required by the contract: it was not a requirement of SRA for him to do so. 51 In relation to the provision that the superintendent was able to impose fines for breaches of the principals' safety regulations, Mr Dilly did not think he had authority to do so. He did not regard his position as superintendent or the position of his representative required them to assess or to enquire as to whether all statutory requirements and safety measures had been complied with by the contractor. He did not consider that he had any obligation to protect the public from any of the work undertaken at Kogarah. Mr Dilly did regard himself as part of the Joint Venture team administering and supervising the contract. 52 Mr Dilly had been asked to write a report about the events at Kogarah and had been instructed by Mr Burgmann to do so: if Mr Burgmann had not done so, he was not aware who else could have instructed him to do so. He thought that he had sent the draft of it to Mr Burgmann. A number of people had contributed to that document. In that report, he advised that CWM had operated no safety system at Kogarah although he could not recall from where he obtained that information. In his role he reported to Mr Burgmann whom he regarded as being in charge of CWM and was able to do whatever he liked. He accepted that he had never been employed by Ove Arup but had been employed by and was paid by Group One. The report or response that Mr Dilly had prepared was an agreed document and a copy of it was sent to Mr Burgmann, presumably to get his approval and to ensure that it was correct. He could not recall any discussions with Mr Burgmann about the document, but would have been surprised if there had not been some discussion. He did not believe that the document had left the office without Mr Burgmann seeing it, but he could not be sure that was the case. 53 As construction manager, Mr Dilly was not aware whether he had monitored the Abigroup occupational health and safety system or whether that had been done on behalf of CWM . He had no recollection of instructing anyone to monitor Abigroup's occupational health and safety system. He did not think this was any part of the role of CWM. He consistently attended the upgrade sites and it was his decision how often he attended at the sites: the same applied to Mr Sibley unless there was a direction. In his role, as superintendent, he relied on the contractor reporting on the upgrade services and it was not necessary that he do so himself. Mr Burgmann did not directly supervise his activities but Mr Dilly would comply with a direction given by Mr Burgmann. In relation to the superintendent's power to object to the use of a sub-contractor, Mr Dilly said he had never exercised that power nor had he been asked to consider it. 54 In relation to the design contract, Mr Dilly said he was not involved in it and did not comment on it. In his role, he superintended it but it was of no concern to him whether the design documentation was sufficient or not. He did not check on Abigroup's activities by random inspections of safety methods and he had no recollection of requiring Mr Sibley to do so. He did not recall who it was from CWM that did such random inspections regarding safety, although he was aware of some inspections after the explosion. In his role as superintendent, he did not normally expect to be informed when construction activities were to be undertaken on the site. There was no procedure for the superintendent to be advised of the times of work including work at weekends etc. There was no system to ensure that any directions made by him as superintendent were complied with. He had no direct knowledge of the activities of Josef and Sons on site, although he knew generally that they were involved in the demolition of the shops. Prior to the explosion, he did not regard himself as being able to give directions to contractors regarding safety on site. 55 In cross-examination, Mr Dilly said that, in 15 years' experience, he dealt with superintendents in relation to contracts but he had never acted in that position prior to August 1994 when he was employed by Group One as the construction manager. He informed himself about the role by relying on his experience as a contractor and observing how superintendents acted. 56 In clarification, Mr Dilly said he was not sure, when he was offered the job by Group One, whether he was employed as a construction manager: he did not actually enquire as to what the job was - he merely said he would take it because he was not working at the time. The details of the job were never made clear to him. In answer to a question whether, after August 1994, the job he was doing on the stations upgrade project was the job of a construction manager, Mr Dilly replied that the only role he ever had was as superintendent of a very large number of contracts. He agreed that the first contract to superintend did not arrive when he commenced employment but came some time later. 57 Mr Dilly had no recollection of signing letters to others or of holding himself out as the construction manager, but knew he had attended meetings where he was described as the construction manager. He never regarded himself as construction manager and only ever regarded himself as the superintendent. He did not recall anyone else being called the construction manager within the stations upgrading joint venture and he headed the team of "my superintendent's representatives". Those representatives were involved in the contracts they were assigned to and had no other roles. Mr Dilly did not see that those representatives were involved in construction management, although he accepted that they were not involved in design management. Mr Dilly accepted that he had attended many meetings called contract meetings that were concerned with the progress of the contracts. At those meetings there was a representative of SRA, a representative of the design team and a representative of the commercial team. It was put to him that he was the representative for the construction team. Mr Dilly denied that he was there other than as superintendent and with the superintendent's representatives. 58 The purpose of Mr Dilly attending those meetings was to tell the SRA what was happening within the contracts in relation to his duties as superintendent in regard to progress payments, variations, extensions of time etc. He also attended meetings called project managers' meetings on behalf of the Joint Venture. The purpose of those meetings was for Mr Dilly and others to report to SRA - Mr Dilly reporting as to how they were administering the contract. There were also separate design team meetings and project control meetings: they were meetings at a very high level with managers from SRA and representatives from different divisions of the Joint Venture. Mr Dilly said he attended those meetings not as the construction manager but in his role as superintendent. He accepted that he was described in the Minutes of those meetings as the construction manager for the purpose of those meetings, but that was not his role. Mr Dilly said that, at the time, he was quite pedantic about his role and what its limits were: he often made the point that he was not the construction manager but was the superintendent "first, last and in the middle". He told Mr Burgmann that "dozens of times". 59 It was accepted by Mr Dilly that one of his responsibilities was to organise which people within the management team and construction team would be working on particular sites. Generally, he assigned the superintendent's representatives. It was accepted that Mr Dilly allocated particular responsibilities by allocating various contracts to superintendent's representatives, usually on the basis of geography or by aligning them to make it simple for them to travel between the projects. Mr Sibley and Mr Stuart were members of his team, but the team only had two layers - himself as superintendent and the next layer. Mr Dilly did not recall ever describing his team as the senior project management team and did not recall using those terms. 60 The Joint Venture project procedures were kept in a manual about which Mr Dilly was aware and in which procedures were written all the time but, as he regarded the role of superintendent as being an independent role, he applied those procedures only insofar as they were not in conflict with his role as superintendent or in conflict with the role of superintendent's representative. He understood that otherwise he was to abide by those procedures where they did not conflict with his duties as superintendent. 61 It was accepted by Mr Dilly that, from the earliest time he had become involved in the project, there were frequent discussions about safety but he denied that he was involved with safety issues relating to the sites. He did not agree that site safety was an ongoing issue for him as superintendent from the time he commenced with the Joint Venture. He denied having any role in site safety. Mr Dilly accepted that he had a responsibility as superintendent and if he observed something unsafe on the site he immediately directed the contractor to rectify the situation - indeed, those words were within the contract, but he did not see himself as a safety officer. It was not a major responsibility of his as superintendent. If he observed something unsafe at a site, he did not see it as his responsibility to direct the contractor to immediately rectify the situation. He saw it as part of his responsibility to have regard for safety of the public and he did that. Once he had delegated certain responsibilities to representatives, he did not regard himself as having any further responsibility. There might be some exception, such as the dispute clause responsibilities but, generally, that description reflected his view. Mr Dilly repeated his evidence that he had no obligation to protect the public from any work undertaken at the Kogarah station, explaining that his obligation there was in relation to the contract and in his role as superintendent: at Kogarah he had assigned his responsibilities and had therefore narrowly construed his role as superintendent in relation to those contracts. 62 Although Mr Dilly was concerned about the explosion that took place at Kogarah he did not regard himself as having a particular responsibility in relation to that event because he was named as superintendent of the contract. He did not think of himself as being the construction manager. The report he had written about the explosion was one that he was asked or directed to make. He might also have been asked by SRA to present a report. That document was prepared for the information of the Joint Venture. 63 In Mr Dilly's view, the construction manager role did not exist within the contracts he was administering. His role as superintendent related to the contracts and the very many variations to them. The role existed within that contract environment. The role of construction manager was considerably broader to the reasonably limited duties of the superintendent within the various contracts. Mr Dilly did not regard a construction manager as being independent - only the superintendent was independent. The position of a construction manager within CWM could lead to a conflict of duties if that person was also superintendent. Mr Dilly said that he probably knew in 1995 that an ordinary function of a construction manager was to ensure compliance with occupational health and safety requirements. He said he was probably instructed that part of his duties were to ensure compliance with the Occupational Health and Safety Act 1983 at the sites that his representatives were attending. 64 Mr Coleman was the managing director of TMG International Pty Ltd and held that position at 5 December 1995. He said that there was no written agreement setting out the rights and liabilities of each Joint Venture company and noted that Ove Arup was just one company, not three or four companies, under the Joint Venture arrangement. The role of CWM involved preplanning, design management, and management of the construction contract (as defined by the contract with SRA). 65 Each company in the Joint Venture had a specific role in the programme and in the Kogarah Upgrade. At the Kogarah Upgrade, Arup was providing project management and building engineering services. Group One was providing construction management and the superintendent functions for the construction contract. TMG was providing concept design and management of design contracts entered into by SRA and other design consultants. 66 At Kogarah, in Mr Coleman's opinion, CWM was acting as project managers and was not involved in supervising sub-contractors of Abigroup. He regarded Abigroup as having "prime responsibility" for the site after the contract between Abigroup and SRA was signed. 67 CWM had personnel attending the Kogarah site which involved only two or three people and was not necessarily full-time. No-one from CWM was required to be on site permanently. The duties primarily related to "quality of work" and to ensure that the work was being done in accordance with the design. CWM conducted site inspections at Kogarah which were primarily concerned with the quality of workmanship. CWM reported to the State Rail Programme Manager, Mr Furaro. 68 Mr Coleman expected CWM to address occupational health and safety at Kogarah but was not aware of the details of how that was done. CWM staff had no "supervisory" role at the Kogarah site and did not supervise the work of sub-contractors. There were no CWM staff on the site on 4 December 1995. Mr Coleman did not believe that CWM's obligations under the contract with SRA were to supervise all the work at all times on the site. 69 The prime role of the Joint Venture Management Committee was to give effect to the Joint Venture agreement between the parties and to deal with issues arising from that agreement. Mr Coleman sat on the Management Committee as a representative of TMG. Mr Burgmann was from Arup and as CWM project manager took minutes of the Management Committee meetings and kept records. The role of chair of the Management Committee rotated for administrative convenience. The Management Committee did not discuss aspects of safety at Kogarah prior to 4 December 1995 - that was not its purpose. CWM did not have any employees. To the extent that there was an obligation in relation to working practices, that generally was the role of Group One under the allocation of responsibilities in the Joint Venture agreement. 70 In a statement given in September 1999, Mr Willoughby said that he was a senior architect and associate of EMTB. In December 1995, he was the senior architect on secondment to CWM and the Stations Upgrade project. CWM was to facilitate a design process and to administer building contracts on behalf of SRA, being contracts between those builders and SRA. At Kogarah, EMTB was the design manager. 71 Arup was involved in the design management process as a reviewer of engineering designs produced by engineering sub-consultants engaged by Denton Corker Marshall. TMG reported on cash flows and programming issues and Group One was responsible for administering the building contracts. 72 Mr Willoughby said that he attended the site approximately eight times before the accident carrying out inspections of existing buildings, meeting representatives and taking photographs to assist in the design process. Under CWMs contract with SRA, Part D, Special Conditions of Contract, CWM administered contracts on behalf of SRA. The administration was undertaken by Group One. Mr Dilly from Group One was SRAs nominated superintendent responsible for administering the contract. SUBMISSIONS 73 The prosecutor submitted that the specific elements of the offences, which the plea of guilty accepted, had been proved beyond reasonable doubt and were: · the defendant had to any extent control of certain premises; · those premises were non-domestic; · those premises had been made available to persons not employed by the defendant; · the premises were made available as a place of work. The central issue in these offences under s 17(1)(a) was the issue of "control" and the "extent" to which the defendant had such control of the premises. 74 Attention was drawn to the decision of the Full Bench in MacMillan Britton and Kell Pty Ltd v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464, where the notion of "control" was considered in relation to s 17(1)(b). At p 480, the Full Bench concluded: ... In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to the extent which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of "control" in the context of s 17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "demand" - the ability of a person to compel corrective action to ensure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would simply be unable to assume the strict duty cast by the section. ... It may be thought that the words "to any extent" qualify the word "control" so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase "to any extent, control" means no more than the person liable being able to compel (or direct or command) to any extent". It was pointed out that the Vice-President, Walton J in WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Ltd and anor (2000) 95 IR 383 referred to this passage in MacMillan Britton and held that the conclusions were equally applicable to the provisions of s 17(1)(a). 75 Reference was also made to the decision of Peterson J in WorkCover Authority (Inspector Page) v Growth Equities Services Pty Ltd (unreported, 9 September 1994). In that case, the liability of the defendant was not diminished by the fact that another entity also had control to an extent over the use of certain plant. Against these authorities, it was to be observed that the defendant in these proceedings relied on the frontline contractors and sub-contractors, including Abigroup, stating that they had the legal obligation to maintain a safe workplace and that the defendant's role was removed and remote from that frontline obligation. The prosecutor submitted that the extent of the defendant's control needed to be examined having regard to the following matters: · the defendant was a signatory to the contract between it and SRA and had legal obligations under that agreement; · the defendant was an equal participant under the Stations Upgrade Joint Venture agreement and was a member of the management agreement with equal status to the other members of the Joint Venture; · the defendant was the employer of Mr Burgmann who, for all intents and purposes, was the managing director of CWM and had the responsibilities of the "consultant's representative"; · the defendant was legally responsible for the acts and omissions of employees seconded to the Joint Venture, either because the Joint Venture had its own legal entity and responsibility or because it was vicariously liable under the Occupational Health and Safety Act. 76 The acts and omissions of the defendant that were proved beyond reasonable doubt were said to be the following: · the failure of CWM, Mr Burgmann and Mr Willoughby to ensure that the design documentation had the underground gas service line was identified as to its whereabouts in relation to the construction site. Mr Willoughby knew that SRA information was unreliable and Mr Burgmann had the duty to ensure that design procedures of CWM were complied with and these procedures required service searches; · the failure of CWM, Mr Burgmann, Mr Dilly and Mr Sibley to ensure that the safety requirements under CWM's contract with SRA and under the Abigroup contract (in particular, dealing with demolition) and/or under the sub-contract with Josef (in particular, the work method statement) were complied with as they related to: - ensure the inspection of the gas services before disconnection; - the identification of all underground services before demolition work commenced; - allowing demolition work to commence without being satisfied that the whereabouts of the underground services had been identified; - knowing (or ought to have known) of the existence of a terminal point of a gas service to the shop without knowing or ascertaining the whereabouts of the live gaspipe which led to that terminal point; - allowing mechanical digging to proceed near the terminal of the gas service without properly marking its whereabouts; - allowing mechanical digging near the terminal of the gas service without knowing the whereabouts of the live gaspipe to that terminal; - failing to set out works in a fashion that would have identified the construction site; - allowing work to proceed without the knowledge of the superintendent or his representative, in particular, demolition work commencing without a work plan being established or supervised so that it was complied with - failing to comply with the provisions of the contracts to "ensure that the OH&S Act and the Construction Safety Act" were complied with; - failure to supervise or ensure that all staff of CWM understood and complied with their duties under the various contracts and/or complied with CWM project procedures. 77 The Agreed Statement of Facts and the many exhibits before the Court established the following relevant matters: · the superintending organisation of the Abigroup contract was nominated as CWM and it was CWM that appointed Mr Dilly as the contract superintendent; · CWM was to manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over; · during the early part of 1995, CWM, in conjunction with SRA and the designing architect, put together the specifications for major upgrading works which were to take place at Kogarah Station; · the superintendent of the contract between SRA and Abigroup was CWM and its appointed representative was Mr Dilly; · Mr Dilly regularly attended the worksite to observe the general activities of Abigroup; · Part of the contract between SRA and Abigroup, which the Joint Venture was supervising, identified the duty of Abigroup to identify the location of all underground services prior to commencement of work on site by undertaking site inspections and, where identified, the duty of the contractor to take all necessary precautions against damage to the service when any excavations were made. The contract was also to assume that some of the services were unrecorded. The contractor was to take all necessary steps to protect them from damage due to construction work; · Mr Dilly was the superintendent of the contract, and Mr Sibley was the superintendent's representative for that contract at Kogarah. CWM had an office at Station Street and there were fortnightly project review meetings with CWM covering all the projects under its control. 78 Under the Joint Venture agreement, the defendant was equally responsible and liable to the other participants to perform the contract. The sum of the contract, being over $4m, was not divided between the participating parties by way of allocation, but was equally divided as a profit under the Joint Venture agreement. The Joint Venture operated under a registered business name and had a clear organisational chart. Although personnel may have changed from time to time, at all times Mr Burgmann was at its head and was more than a "titular head". Mr Burgmann was a project manager and had the experience to manage the team. 79 The tender documents showed that the defendant and the Joint Venture was offering SRA a capacity to project manage the relevant contracts (thus ensuring that the terms of those contracts were complied with). Common procedures over all personnel and quality control over the project were essential features being offered by the Joint Venture. 80 It was submitted that the contract identified one person upon whom the duties lay under the agreement and that was "the consultant": that term was defined as the person bound to carry out the services under the contract and that had to be the Joint Venture, not any individual participant. The contract spoke of the consultant's obligations and referred to the consultant's employees and that the consultant should maintain good order and discipline among his employees. Further, the consultant was to appoint a consultant's representative (Mr Burgmann): clauses of the agreement made it clear that he was entitled to exercise the powers, duties, discretion and authorities of the consultant and was authorised to bind the consultant by his decisions, acts and omissions. In this way, Mr Burgmann could not be seen only as a representative of his employer but, rather, as a representative of the Joint Venture and therefore of all its participants. 81 The specifications set out the work to be undertaken by the consultant: the services to be performed included but were not limited to inspection of worksites, preparation of documentation, administration of contracts in the role of superintendent or engineer, as appropriate, for all contracts in the programme, management of each contract individually, attending briefing and management meetings and providing actual lists, ensuring the provision of a safe environment for the public and workers on all sites, and stated that the consultant was to ensure and co-ordinate all architectural, engineering and service drawings, specifications &c prepared by design consultants. In relation to provisions dealing with supervision of the work, the consultant was to be nominated as superintendent of all contracts, although the consultant could delegate such powers. It was submitted that the "consultant" was the Joint Venture and that it was the Joint Venture that had supervision of the work. The extent of that role was underlined by the provision that all work was to be performed by the consultant in the provision of project management services in accordance with Australian Standards of quality systems. 82 The prosecutor submitted that the most significant clause was Clause 2.13, stating that the consultant should prepare and administer a safety plan and ensure that all work on the programme complied with the Occupational Health and Safety Act 1983. The role of the consultant was that of being proactive under the Act, and any breach by contractors or sub-contractors was a breach by the consultant of its responsibilities under its agreement with SRA. It was submitted that this clause was, no doubt, the trigger for the need for "safety general" procedures issued by the Joint Venture. This clause and the procedures put to rest any suggestion by the defendant that the Joint Venture did not have legal obligations to ensure safety on the Kogarah worksite. 83 While the contract with SRA provided significant insight into the nature of the Joint Venture and how it operated as a single entity, there were other documents that shed light on this subject. The quality policy was a statement authorised by Mr Burgmann on behalf of the Joint Venture: the "quality policy statement" stated that the Joint Venture was established to "provide comprehensive professional project management services to SRA and other clients". Participants were identified as equal participants, there were provisions relating to "the design contract", there were provisions identifying procedures that would provide direction and guidance for performing activities. An appendix identified "project procedures". 84 In evidence, Mr Burgmann ultimately agreed that the quality control manual was to ensure, across all areas of work being undertaken by the Joint Venture, a certain level of quality procedure being adhered to, although he was uncertain whether the Management Committee assisted or whether he took it upon himself to provide it. Mr Burgmann said he ensured that it was complied with through the individual managers and it was clear, on the evidence, that Mr Burgmann on behalf of the Joint Venture participants relevantly controlled those managers. 85 Correspondence attached to the specifications also shed light on the nature of the Joint Venture. In April 1994, Dr Care had written that, under the Joint Venture arrangement, there would be a single point of contact, namely, the consultant's representative (Mr Burgmann) and that the Joint Venture would be controlled by a Management Committee comprising directors of the four Joint Venture parties - the committee was to control the Joint Venture and provide management with oversight. In earlier correspondence, Dr Care, on behalf of the consortium, had emphasised the "team", including the "summary of key benefits" that stated that the prime contract for the programme management services would be with a single internationally recognised organisation, namely, Ove Arup and Partners, with an interlocking joint venture agreement in place with leaders in their respective industries being nominated as TMG, Group One and EMTB. It was submitted to be of significance that Ove Arup and Partners were proffered as consultants in the fields of "project management". 86 The CWM procedures were also relied upon as indicating that the Joint Venture operated as a single organisation pursuant to the contract with SRA. In October 1994, all staff received Issue No. 1 of the Joint Venture, project procedures and, at the end of March 1995, Mr Burgmann sent to SRA "our project procedures" which had been reviewed and updated. In June 1996, Mr Burgmann issued CWM project procedures. It was submitted that, on any analysis, these documents demonstrated significant control over the manner and operations of all seconded employees and that was consistent with the Joint Venture, and not the original employer, being the employer. 87 The project procedures covered matters of design and construction. Mr Burgmann believed that he did not need to consult anyone from the defendant because he had authority to approve the document. The procedures applied to Mr Burgmann and those acting on his behalf. Mr Burgmann's evidence was that he had attended design meetings and was satisfied that the design documentation "drew attention to the gas", but stated that it made absolutely clear that the contractor was to deal with it with the appropriate authority, being AGL. 88 Similarly, there were a number of controls exercised through the design procedures including that the design co-ordinator would be appointed by the design manager for the day-to-day actions of each design and documentation contract. The duties of the design co-ordinator included initiating services which were applicable. CWM's instruction procedures dealt with "construction start" and the scope of these procedures was stated to be "applicable to the superintendent, the superintendent's representative and the contract manager''. The "responsibilities" identified in the 1995 version were said to be those of the "construction manager" (the superintendent), the project manager or site manager (the superintendent's representative). The 1996 version stated that the responsibilities were to be those of the superintendent who was responsible for the "overall operation of this procedure" and added that the superintendent's representative was responsible for implementing the procedure. 89 In relation to the contract manager, under the heading "Procedure", it was stated that the contract manager was to arrange for the superintendent to issue a letter to the contractor, appointing the project manager or site manager as the superintendent's representative in accordance with Clause 2 of the general conditions of contract and stated the extent of authority delegated. In the 1996 version, the superintendent's representative was to immediately arrange for any service searches, to make contact with various SRA departments as appropriate, to advise them if the work was likely to involve movement, the relocation or upgrade of their services and to advise the programme of the works together with any assistance required. It was accepted that this was different from the 1995 version, which did not refer to service searches but, it was submitted, it was clear that this responsibility was for CWM before the explosion although not referred to in the procedure. In relation to industrial relations, it was stated that the purpose of the procedure was to outline the superintendent's responsibility for monitoring and co-ordinating industrial relations on active construction sites. Under the heading "Scope", it was said that the procedures were applicable to CWM staff who would administer and supervise the contract. 90 CWM's contract with SRA had obligations to ensure compliance with occupational health and safety legislation. In the 1995 procedures, the purpose was stated to be to set up safety measures and restrictions to be enforced on contractors working on station upgrading work. The scope of the procedure was "mainly" confined to special conditions of contract used, while the 1996 procedure stated that those procedures applied to all construction contracts for which CWM acted as superintendent. The 1995 procedure stated the need to comply with all relevant Acts and regulations including the Construction Safety Act and the Occupational Health and Safety Act and, where problems arose, they were to be referred to the superintendent for direction on procedures to be followed. The superintendent was to impose fines for breaches of the principal safety regulations. 91 It was submitted that Regulation 84 of the Construction Safety Act incorporated the need to comply with Australian Standard AS2601 of 1991 dealing with the demolition of structures. The work method statement delivered by Josef & Sons Pty Ltd stated that the demolition work was to comply with the Occupational Health and Safety Act, the Construction Safety Act and Australian Standard 2601-1991. Thus, it was submitted, the contract and the procedures required compliance with the Australian Standard. The standard referred to investigation of a site, including the identification of the type, location and extent of any underground service conduits or cables, or location of any hazardous material. There was reference to the need to identify and locate service supply mains (water, electricity, gas) and the extent of reticulation. There was a requirement to identify and locate underground services and their points of entry and exit from a site. It was submitted that no such identification had occurred or had been undertaken by anyone on this site. 92 It was submitted by the prosecutor that these procedures provided a level of governance over seconded employees and contractors. Mr Burgmann had clearly acknowledged that it was intended that these procedures be adhered to and it was part of his responsibility to see that responsibilities under the procedures were "brought home to every member of the Joint Venture". 93 It was submitted by the prosecutor that the defendant's approach appeared to be that the obligations of CWM under the contract with SRA were, in some way or other, truncated once the contract was entered into between SRA and Abigroup. In this way, it was submitted, the defendant attempted to avoid its obligation to "supervise". The defendant had clearly failed in its role as superintendent of the Abigroup contract. The role was, in fact, proactive and consistent with the duties of a joint venturer under its contract with SRA. Under the contract, the role of superintendent and his representatives was set out and, in particular, the superintendent was able to direct that all work was to be done in accordance with the contract. In this way, the contract included: · underground services being identified prior to the commencement of work on site; · demolition being carried out consistently with AS2601; · ·inspection of services that remain on site or adjacent to the site; · inspection of services before disconnection; · site management that required locations and details of necessary deviations and terminations; · existing services required approval before excavation by machine within one metre of underground services. In addition, the general conditions of the contract required compliance with statutory regulations, protection of persons and property, the power of the superintendent to object to and direct the contractor to remove any person employed by the contractor or sub-contractors who was incompetent or negligent in performance and the requirement of the superintendent to provide information to enable a contractor to set out the works. 94 An analysis of the operation of the Joint Venture was then conducted by the prosecutor to determine whether or not it was a partnership. It was submitted that the nature of the Joint Venture would influence the degree of criminal liability of the defendant to the extent that the defendant had control over its members and/or its employees, and it would also influence the degree of "vicarious liability" that the defendant would incur. There was no reason at law why a joint venture relationship could not be a partnership. 95 The following matters were relied upon as supporting a finding that the Joint Venture was, at law, a partnership:- · equal control of the Management Committee; · the policy of CWM was a matter of agreement of the Management Committee; · equal profit sharing; · the control exercised by a single person overarching all employees seconded, namely, that of Mr Burgmann as well as the control of the Joint Venture procedures; · the equal acceptance of contractual liabilities under the contract with SRA; · the Joint Venture acted as one entity. 96 An examination was then conducted of the employees engaged in the Joint Venture. Despite the fact that employees were seconded to the Joint Venture from the Joint Venture participants, the employees (in particular, Mr Dilly, Mr Sibley and Mr Willoughby) were under the substantial control of the Management Committee and its representative, Mr Burgmann. This relationship had to be seen against the legal liability of the Joint Venture in its contract with SRA to administer the contracts with Abigroup and others, such as Denton Corker Marshall. SRA was paying the Joint Venture a substantial sum to ensure that both these contracts were complied with - that is, the Joint Venture was engaged in project management. 97 While the defendant placed emphasis on the fact that the persons who worked for the Joint Venture remained employees of the original partners while at the same time working for the Joint Venture, the prosecutor submitted that Mr Burgmann was not simply an organisational head who acted in a fashion akin to a postbox for minutes of meetings or as some intermediary between Mr Dilly and the management board - rather, Mr Burgmann and the board had extensive management responsibilities on a day-to-day basis to ensure that the legal liabilities and responsibilities of the Joint Venture, and only the Joint Venture, were complied with. 98 It was submitted that the evidence of various persons working for the Joint Venture showed that they considered themselves firstly as employees of the Joint Venture and/or under the direction of the consultant's representative. Mr Dilly said that he worked for CWM as construction manager and that he did not report to anyone within Group One, but reported to Mr Burgmann. He did not recall reporting to anyone else and, at all times, he worked at the premises of the Joint Venture. He was appointed superintendent's representative under the contract between SRA and Abigroup. Mr Burgmann suggested in his evidence that the appointment was a "two-part nomination". The construction contract said that the principal (SRA) would nominate the superintendent, then, in a separate letter from SRA to the contractor (Abigroup) it was stated that the superintendent was the construction manager of CWM. When asked how the construction manager of CWM was appointed, Mr Burgmann stated that the construction manager was appointed by Group One under the Joint Venture agreement. It was submitted that that answer was deceptive because it was also clear that the construction manager was appointed under the contract between CWM and SRA. 99 Mr Dilly said that he made a recommendation that Mr Sibley be appointed his representative. Consistent with his earlier evidence, that he reported to Mr Burgmann, the inference was that the recommendation was provided to Mr Burgmann and not Group One. Mr Dilly had reported to Mr Burgmann because he was in charge of CWM and that Mr Burgmann could have a role in anything he liked. He had given evidence about letters concerning the explosion and CWM's involvement and stated that he would have sent a copy of the draft to Mr Burgmann for comment: he would not have written a document without first discussing it with Mr Burgmann. At no stage had he ever received any direction from a director of Group One. The prosecutor submitted that, whatever the exact nature of Mr Dilly's duties, central to his work was lack of supervision or control by his direct employer. Mr Dilly believed Mr Burgmann was his supervisor. All employees worked out of CWM's offices and reported to Mr Burgmann, not to their direct employer. Mr Burgmann provided instructions to Mr Willoughby as design manager. In that capacity, he was responsible for the performance of Denton Corker Marshall under its contract with SRA. He was administering the contract and ensuring that the construction tender documentation set out the relevant services. 100 It was significant that the defendant had a clear and equal participation in the board of management. Under the Joint Venture agreement, the Management Committee consisted of one member from each participant and it was to have full and complete power and authority with the participants directing the Management Committee, giving all approvals and making all decisions and determinations required or permitted to be given and made by the participants pursuant to the agreement with respect to the contract and the assets, including the power to supervise the activities of the Joint Venture. All approvals, decisions and determinations of a meeting of the Management Committee were to be made by simple majority vote of those at the meeting with each participant having only one vote. From the width of these powers the prosecutor submitted that the overarching power, that an employer might usually have over its employees, in fact, sat with this Management Committee. Not only did they share power equally but they shared it over non-employees. 101 While there were differences in the evidence of the witnesses, it was submitted that the evidence of Mr Patterson should be preferred as to the responsibilities of CWM. His evidence was that the Management Committee was delegated the day-to-day responsibility for safety so far as there was a requirement of the contract. He acknowledged that any representative of CWM visiting the site ought to have taken action if made aware of the existence of the charged gas line. Mr Patterson was the representative of Group One on the Management Committee, and stated that Mr Dilly and Mr Stewart attended the sites on behalf of CWM not Group One, and were in fact employees of CWM. They were acting in the capacity of project managers in accordance with the contract between CWM and SRA. Mr Sibley had considered that he was the project manager for CWM. There was also evidence of the need to have a rigorous approach to the management of the identification, protection and disconnection of existing services as required. The project manager would be responsible for the implementation, management and compliance with the project's existing services' procedures. 102 Importantly, Mr Willoughby's affidavit evidence attached the demolition specifications, stating that the demolition was to be carried out in compliance with AS2601. On 11 October 1995, a person under Mr Willoughby expressed concern about identifying underground services. Denton Corker Marshall wrote back on 21 November, after a site meeting with the Joint Venture, stating that the demolition of shops had commenced and also dealing with inground services investigations. It was noted that, when Mr Willoughby's attention was drawn to the lack of reference in the design documents to inground services, he stated that Denton Corker Marshall refused to put those references on the drawings and that he had not insisted that they do so. The prosecutor submitted that this was the most serious dereliction of duty on behalf of CWM. 103 Mr Burgmann had stated that he was satisfied that the design documentation drew attention to gas and that was the important issue. The prosecutor submitted that this was an acknowledgement of the fact that CWM did have a responsibility in relation to this issue and clearly failed, in a meaningful way, to discharge that responsibility. 104 While the defendant's plea accepted that there was a degree of control exercised, it did not indicate how the defendant was in control and to what extent it was in control of the premises. Criminal liability of the defendant could arise in a number of alternative ways. The prosecutor then dealt at length with the concept of vicarious liability and submitted that, on present authority, the defendant should be found vicariously liable for the acts and omissions of its non-employees. 105 In relation to the proper approach to sentencing, it was accepted that the maximum penalty applicable in each case was $500,000. The Act operated in a way so that it was the risk created by the defendant's failures that had to be assessed in considering the objective seriousness of the offence. As made clear by the Full Bench in the Abigroup case, the risk in relation to offences under the Act was a reference to the possibility of danger rather than present danger. Here, as a result of the first gas explosion at approximately 2.00 pm on 4 December 1995, two people were killed and at least 16 other people sustained burn injuries, some of them very serious. As a result of the second gas explosion at around 4.00 pm, approximately five Fire Brigade officers sustained burn injuries. In relation to the issue of causation, the prosecutor accepted that there were intervening acts of other parties that led to the gaspipe being broken and the explosion off site. It was submitted that these acts were wholly predictable and usual for a building site. There was always going to be heavy machinery disturbing the surface of earth near the unmarked gas line. The prosecutor pointed out that, during the course of the plea, there was recorded in the transcript a further point of agreement, namely, that the defendant accepted as a fact that the failures in respect of these charges, to which it had pleaded guilty, "were an instigating cause of the risks which came to fruition on 4 December 1995 and had, as their consequences, the injuries to non-employees on that day". 106 The prosecutor submitted that the defendant's failure was a substantial cause of the risk of the breakage of the gaspipe and, further, that its failures were also a substantial cause of the actual breakage and the subsequent explosions. Reference was made to authority for the proposition that the Act did not concentrate only on the immediate cause of an accident and the risk that led to it but there was also a need for consideration of failures to provide and/or maintain a safe system of work as being the preceding link in the chain of causation. 107 From the material before the Court, including photographs and evidence of the dimensions of the site, it was submitted that this was a somewhat cramped building site for the operation of heavy machinery and that it was always anticipated that heavy machinery would be present on the site disturbing the surface of earth near the unmarked gaspipe. The end of the gaspipe was marked, as shown in photographs taken on 24 November 1995, and the evidence established that it was known that the gaspipe was charged. However, it entered onto the site to the point marked, of which several metres, at least, were not far below the earth's surface. The risk of breaking the pipe, causing a serious gas leak on or off the site was obvious, particularly after the marking and protection at the end of the pipe was removed. This aggravated the offence. 108 The need for general and specific deterrence was required, particularly having regard to the notorious reputation of the building industry concerning breaches of the Occupational Health and Safety Act 1983. The Court was urged to make a statement as to the responsibilities of each participant on a building site, rather than endorsing the "pass the buck" attitude adopted by the defendant. 109 In relation to subjective factors, the prosecutor conceded that the defendant was entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offences. A plea of guilty might attract a greater degree of leniency, where the court was satisfied that the plea reflected contrition on the part of the defendant. Prior to addresses by the defendant, there did not appear to be any evidence of the defendant's contrition. In addition, the plea in this matter was offered at a very late stage and only after the prosecution had commenced and a number of days of hearing undertaken. Also, the plea was entered after all appeals and challenges had been determined in relation to various technicalities raised by the defendant. In those circumstances, a discount of five per cent would be reasonable, given the lateness of the plea and the limited concessions made as to the extent of liability once the plea was entered. It was accepted that the defendant had no prior convictions. 110 In relation to parity, it was common ground that the charges laid against the defendant arose from the facts and circumstances also giving rise to charges against Abigroup, Josef & Sons and Robert Josef. The decisions in those cases, including appeals, were before the Court. It was submitted that an examination of the other prosecutions showed an increase of fines over the period the offences occurred. Secondly, the Full Bench of the Commission considered that the objective seriousness of the offence was in the severe range. The Court was asked to take into account the fact that ss 15 and 16 offences in those matters covered the same acts and omissions but related to different groups of individuals: the total amount of the fine aggregated near the maximum. 111 In its submission, the defendant pointed out that the identification of control in the context of s 17 usually posed no problem where the practical or direct control of premises was obvious. In the present case, however, the control attributed to Ove Arup was a shared or indirect control by reason of its participation in the Joint Venture. The defendant's liability under s 17 was restricted to the time when the premises were under the defendant's control. The defendant's degree of control should be such that it could ensure safety by guaranteeing, securing or making certain of the condition of the premises: s 17 implied a sense of "directing action" or to "command", as opposed to mere "sway", "checking" or "restraint", an ability to compel corrective action to ensure safety adopting the approach in McMillan Britton & Kell Pty Ltd. 112 The control that Ove Arup was able to exercise was of a limited nature. Ove Arup & Partners was a single entity within CWM. In 1994, CWM had tendered to provide management services for building and civil works in relation to a station building and depot upgrading programme being conducted by SRA. On 29 July 1994, SRA Contract No 93336 (the project management contract) was awarded to each of the CWM participants in their corporate names. The upgrade programme involved building, refurbishing and upgrading works at 294 railway stations - only one part of that programme was conducted at Kogarah. Ove Arup did not exercise, nor was it in a position to exercise, direct control of the Kogarah construction site at which the explosion occurred. Nevertheless, for the purposes of the sentencing proceedings, Ove Arup accepted that, as a consequence of it being one of four participants making up the Management Committee of CWM, it had a degree of indirect control of the Kogarah construction site since, through the Management Committee, Ove Arup jointly with other CWM participants had power to control the superintendent and his representatives engaged at the construction site. 113 In relation to the upgrade programme, the defendant pointed out that SRA was, at all relevant times, the owner and occupier of Kogarah Railway Station at which the upgrade was being undertaken. SRA had developed the upgrade programme which involved major and minor works ranging from fencing to major repairs, modification and restoration of identified railway stations and buildings within the CityRail network. In or about 1993, SRA moved to outsource the management of all building and civil works under the upgrade programme to a project manager management and called tenders for the project management contract. 114 It was explained that, for the purposes of tendering for the project management contract, a number of corporate entities formed the Joint Venture CWM. Those corporate entities entered an agreement entitled "Stations Upgrade Joint Venture Agreement" and the participants were Group One Interiors Pty Ltd, EMTB, TMG and Ove Arup. The Ove Arup companies were considered a single entity within the Joint Venture, so that there were four members of CWM. CWM was not an incorporated entity. Accordingly, the Joint Venture was not a separate legal entity: its existence was solely the result of and due to the Stations Upgrade Joint Venture agreement. 115 Among the clauses of the Joint Venture agreement that were relevant was the provision that the four participants each had a 25 per cent interest in the Joint Venture - Ove Arup & Partners was only one entity within CWM, sharing in a 25 per cent interest. Further, the rights, duties, obligations and liabilities of the CWM participants were, in every case, several and not joint or joint and several. The relationship between the participants was specified as one of joint venture and nothing in the agreement was to be construed as constituting any of them as agent or partner for any of them or to create an agency or partnership for any purpose whatsoever. Except as specifically provided in the agreement, a participant did not have any authority to act for or to create or assume any responsibility or obligation on behalf of any other participant. The responsibilities and duties were divided amongst the participants so that Group One was responsible for construction management, Edwards Madigan was responsible for architectural and design management, TMG International was responsible for project management, rail systems and engineering and Ove Arup was responsible for project management and engineering. There was a four person Management Committee with equal representation from each of the four participants. 116 It was submitted that the Joint Venture agreement provided that the responsibilities and duties of each of the CWM participants were expressly delineated under Clause 7(2), where the responsibilities and duties were divided as described above. Ove Arup's only responsibility was in relation to "project management and engineering" and the only CWM participant directly responsible for construction management was Group One. The only CWM participant directly responsible for architectural and design management was EMTB. 117 In July 1994, SRA awarded the project management contract by naming each of the individual participants as a consortium, rather than using the name of the Station Upgrade Joint Venture or CWM. The Joint Venture agreement was incorporated in the project management contract so that all the provisions of the Joint Venture agreement and the tender material formed part of the contractual relationship between SRA on the one hand and Ove Arup, TMG, EMTB and Group One on the other hand. It was submitted that as a result of this approach, SRA accepted, as a matter of contract, that the Joint Venture agreement did not create a partnership or agency between the participants, that the rights, duties, obligations and liabilities of the participants were several only, that no CWM participant had any power or authority to create obligations or responsibilities on behalf of other participants and that the responsibilities and duties of the participants were as delineated to each individual participant. 118 As a practical matter, under the project management contract, the CWM participants variously performed the following tasks: (i) identifying and recommending to SRA the priority of the stations on which upgrading work was to be undertaken, and the general nature of the work on each station; (ii) calling for tenders from an SRA approved panel for the design of the specific upgrading work in question, vetting and making recommendations concerning the tender so received; (iii) calling for tenders from an SRA approved panel for the construction of the specific upgrading work identified (based on the detailed design documentation) and vetting and making recommendations concerning the construction tender so received; (iv) co-ordinating the activities of the Joint Venture personnel involved in all facets of the upgrading project and liaising with CWM Management Committee and SRA Station Upgrade hierarchy to maximise the efficient use of personnel, material, time and funds; (v) monitoring the design work, culminating in the preparation by the designer of detailed design documentation for the specific upgrading of the work in question; (vi) monitoring the work for compliance with the design, and fulfilling completion in a timely fashion and on budget; and (vii) acting as superintendent of the construction contract between SRA and the successful tenderer and in that capacity certifying payments to contractors and the like. 119 It was submitted that Ove Arup played a role in relation to the tasks referred to in (i), (ii), (iii) and (iv). Ove Arup was not involved in the tasks identified in (v), (vi) and (vii). Under the Joint Venture agreement the task identified in (v) was the responsibility of EMTB, the task identified in (vi) was the responsibility of Group One and possibly EMTB, and the task identified in (vii) was the responsibility of Group One. It was submitted that the responsibility of Group One for matters of site safety was obvious, as a practical matter, given its expertise in the construction area and the role actually played. 120 The contract between SRA and Abigroup for the Kogarah upgrade dealt specifically with demolition work as well as inspections of services before disconnection or diversion and after reconnection or diversion. The contractor was to carry out the investigation of the structure on the site and prepare a work plan documented to include information about locations and details of necessary service deviations and terminations and obtain approval of the work plan by both the regulatory authority and the superintendent before commencing demolition and stripping work. A detailed construction programme was resubmitted to the superintendent for approval. Under the special conditions, the contractor was to take all possible steps to ascertain the location of all underground services (that is, cables, pipes and the like), to contact the superintendent before commencing work on the site and to inspect the location of all services in the presence of the superintendent. 121 The building contract provided for a superintendent with a variety of roles including the issuing of certificates of payment, authorising the commencement of and/or continuation of certain works, approving certain plants and programmes and inspections of service locations and other matters. It was submitted that the superintendent's role was triggered by the conduct of the contractor, such as the submission by the contractor of certain documents for the superintendent's attention or by the contractor notifying the superintendent of the need and reasons for the superintendent's attendance or attention. Under the specifications, the superintendent was to be the construction manager CWM. It was submitted that, as both a matter of fact and contractual responsibility, the "construction manager CWM" was either Group One or the person Group One employed to occupy that position. By letter of appointment given in August 1994, Mr Dilly was appointed to the staff of Group One in the capacity of "project manager, initially being assigned to the SRA Joint Venture Project as construction manager". Mr Dilly acted in the role of superintendent and was consistently addressed as and responded to the title "Construction Manager CWM". Ove Arup was not required to fulfil any obligations in respect of construction management under the terms of the Joint Venture Agreement or any other contract relevant to these proceedings and did not occupy the role of superintendent of the building contracts. 122 For the purpose of the present proceedings, Ove Arup did not dispute that the Kogarah Upgrade design specification drawings produced under the design documentation contract should have included the identification of the location of all gas supply lines connecting to the site, but failed to do so. It was not disputed that CWM design co-ordinator for the Kogarah Upgrade (Mr Mason) and the design manager (Mr Willoughby) were both aware of the omission of such particulars from the design drawings and that, although they requested Denton Corker Marshall to revise the drawings to include those particulars, they failed to ensure that the proper amendment and/or inclusion was undertaken by Denton Corker Marshall prior to the provision of the drawings to Abigroup. 123 In relation to the commencement of demolition and termination of the gas supply, the defendant pointed out that there were a number of entities and persons involved at the Kogarah Upgrade works including SRA, AGL, Abigroup and its site foreman Mr Bustamante, Josef, Josef & Sons Pty Ltd, Mr Adler an engineer employed (or sub-contracted) by Josef performing supervisory duties including directing the task of the excavator driver Mr Campbell who was an employee of Josef & Sons Contracting Pty Ltd. In November 1995 Abigroup had appointed Josef & Sons to perform demolition and excavation work at the site and on 10 November 1995. AGL was requested by a director of Josef to terminate the gas service to Shop 7 at the south-eastern extremity of the site prior to the demolition of Shops 3, 5, 7 and 9. 124 It was unclear whether a representative of Josef & Sons was present when the gas service was disconnected. However, Abigroup's site foreman (Mr Bustamante) was present and he had a discussion with the AGL employee concerning the location of the termination of the gas supply. The defendant submitted that it was not alleged that any person employed by CWM participants was present during the termination of the gas line nor was it alleged that anyone from CWM was ever notified of the impending gas terminations. Mr Dilly, the superintendent, and his representative Mr Sibley were aware of the presence of the charged gas line leading to the fish shop at the site at a time prior to 10 November 1995. Employees of Ove Arup did not and were not expected to or required to attend the site on 10 November 1995. No issues or concerns regarding the gas line were ever reported to Ove Arup or to Ove Arup's knowledge, to the Management Committee, at any time prior to the explosions on 4 December 1995. 125 In the period between 10 November 1995 and 4 December 1995 and after the termination of the gas supply, demolition and excavation work commenced at the site. Shortly after 10 November 1995, Abigroup constructed an earth blue metal ramp at the southern end of the site to enable vehicular access: apparently, the metal pipe housing the live yellow nylon gas line passed under or close to the vicinity of this ramp. The exposed end of the gas line was marked to bring it to the notice of the construction workers by Abigroup and/or Josef . An effort was made to notify others of its presence and to protect it from interference by the placement of star pickets, coloured bunting and two logs. Employees of Ove Arup did not and were not expected or required to attend the eastern construction site in the vicinity of the exposed gas line during the period 10 November 1995 to 4 December 1995. No issues or concerns regarding the presence or position of the gas line on the construction site were ever reported to Ove Arup, or to Ove Arup's knowledge, reported to the Management Committee, at any time prior to 4 December 1995. There was no dispute that both Mr Dilly as superintendent of the building contract and Mr Sibley as the superintendent's representative attended the site over that period. 126 On the day of the gas explosion on 4 December 1995, all workers were rostered off as it was a union holiday. There was no relevant representative of the SRA concerning the works and no representative of Abigroup or the superintendent of the building contract present on the site. Nevertheless, representatives of Josef & Sons attended the site on that day in order to complete excavation work and to remove machinery belonging to it from the site. Employees of Ove Arup did not and were not expected or required to attend the site on 4 December 1995. The presence or possible presence of employees of Josef Sons was not reported to Ove Arup or, to Ove Arup's knowledge, to any person connected with CWM at any time prior to the explosion on 4 December 1995. In fact, MrDilly was advised that the site was to be closed on that day. 127 It was accepted for these proceedings that, while performing work on the site the bucket of the excavator snagged the exposed gas line causing it to part at the elbow joint located on the footpath adjacent to the FAZ Amusement Centre, some 15 metres south of the construction site. At about 2.00 pm that afternoon, the escaped gas was ignited by an unknown source causing an explosion and fire in the amusement centre and that, at approximately 3.30 pm, a second gas explosion occurred. 128 The defendant submitted that only four entities or persons had direct control over the upgrade construction site. The first was SRA as the owner and occupier of the site, the second was Abigroup which had possession of the site for the purposes of conducting the building work under the building contract. It was submitted that Ove Arup was a stranger to both the contract between SRA and Abigroup and the demolition and excavation sub-contracted between Abigroup and Josef & Sons. Ove Arup had no standing to interfere with the performance or operation of either contract other than through the medium of the Management Committee. The third entity with direct control was Josef & Sons as the demolition sub-contractors appointed by Abigroup under the building contract. The fourth entity was Group One in its role as superintendent and in a different way as CWM construction manager, or through its employees Mr Dilly and Mr Sibley in both roles. 129 There was a clear division of responsibility between CWM participants as demonstrated by the terms of the Joint Venture agreement. The provisions of their agreement formalised the intention of the participants in that they would each bring specific skills to the Joint Venture and would come together collectively to provide the expertise and skills required to satisfy SRA's requirements in respect of the project management contract. This feature of the Joint Venture was demonstrated during the pre-registration and tender phases of the project management contract where the particular skills and expertise of the four participants were detailed. Ove Arup was to provide two civil engineers, a structural engineer, an electrical engineer, a building services and design engineer and an environmental engineer, whereas EMTB was to provide two design architects and Group One was to provide a building supervisor, a building project manager, a clerk of works/site manager, a construction manager and an operational activities and contracts manager. Any examination of these diverse skills of the proposed personnel would confirm what was said to be the "obvious intentions of the participants" to provide staff in accordance with the disciplines required of each pursuant to the provisions of the Joint Venture agreement. 130 This division also explained the way in which the Joint Venture was to operate with different Joint Venture participants using employees with expertise in a particular area in which the employee was to operate, subject to other determinations of the Management Committee. Employees were seconded to CWM. Further, the participants were reimbursed on the cost of each employee seconded to CWM by the participants. It followed that each participant intended and agreed that it would be responsible only for specific tasks or specific areas of expertise in any project and to that end each participant provided specialist personnel to ensure compliance with the unique requirements of its field of expertise. 131 As a matter of contractual responsibility and duty, the only CWM participant having obligations in relation to construction management was Group One. Its task included monitoring the construction works at the Kogarah Upgrade and other sites forming part of the upgrade programme for compliance with design for completion in a timely fashion and on budget. Acting as superintendent of the building contract between SRA and Abigroup at the Kogarah upgrade was also the responsibility of Group One. Ove Arup's role in relation to the project management contract this included: identifying and recommending to SRA the priority of the stations on which upgrading work was to be undertaken and the general nature of work at each station; calling for tenders from an approved panel for the design of specific upgrade work, vetting and making recommendations concerning the tenders received; calling for tenders from the approved panel for the construction of the specific upgrade work in question and vetting and making recommendations concerning the construction tenders and providing a consultant's representative, (Mr Burgmann), to co-ordinate and manage the activities of the Joint Venture personnel and to liaise with the CWM Management Committee, SRA representatives and others as required. 132 The defendant canvassed a variety of case law and specialist texts to reject the prosecution's submission that the Joint Venture was, in fact and law, a partnership and therefore jointly and severally liable for each other's obligations including obligations imposed under s 17 of the Act. By reference to those authorities, it was argued that the terms of the Joint Venture agreement itself and the way in which the tasks were divided between the participants supported a finding that the Joint Venture was not, in fact or law, a partnership. The law accepted that the term "Joint Venture" was not a technical term but recognised the existence of a species of business association separate and distinct from a partnership. It was significant that the undertaking of the Joint Venture was for a particular project of limited duration, rather than the formation of a relationship amongst participants to conduct an indefinite series of projects of certain descriptions. Nor could the Joint Venture be described as the usual principal commercial activity of the participants but was, rather, a particular collaborative extension of each of their commercial dealings. Joint property or part ownership was not of itself sufficient to create a partnership nor was the sharing of gross returns nor a share of profits of a business. 133 It was important that the participants in the business venture had expressly agreed that they were not agents for each other and did not have power or authority to bind each other and they were not jointly liable with each other for the debts, obligations and wrongs of the Venture. These matters were all addressed by the Joint Venture agreement providing evidence against a finding of partnership. The Joint Venture agreement expressly provided that the assets owned or acquired on behalf of the parties for the purpose of the Joint Venture were to be owned as tenants in common in accordance with their respective interests in the Joint Venture. It was also expressly agreed that any intellectual property made available by any participant of the Joint Venture was to revert to that party upon termination of the Joint Venture. Employees of the Joint Venture were to be seconded from the staff of the participants. Each participant was to be reimbursed by the Joint Venture for the costs of each employee seconded to the Joint Venture by the participant. An overall consideration of the Joint Venture arrangements therefore did not support a finding that the Joint Venture operated as a partnership. 134 Having submitted that the defendant had no direct control of the site or the design drawings for the site, it was then submitted that neither in fact nor in practice did the defendant exercise control of the construction site or the design process by its acts or omissions. Ove Arup did not attend the construction site from the date of commencement of the construction work to the date of the gas explosions and was not required or expected to do so. Ove Arup did not monitor the content of any design drawings concerning the site. Ove Arup was not aware of and did not participate in and had no right to participate in (apart from its position of equal representation on the Management Committee) the termination of the gas service on 10 November 1995; any discussions or determinations that took place concerning the presence of or the point of termination of the charge gas line; any decision to permit Josef & Sons or related entities to attend the site on 4 December 1995 and undertake work; the absence of safety officers or other representatives of SRA or Abigroup or the superintendent of the building site when Josef & Sons or related entities conducted excavation work on 4 December 1995; the conduct of the employees of Josef & Sons or related entities on site on 4 December 1995; any discussions or determinations which took place concerning omissions or inaccuracies relevant to any design drawings for the site; and any decision to permit incomplete or inaccurate design drawings for the site to be provided to either Abigroup or Josef & Sons. 135 To the extent that any participant within CWM had responsibility for such matters, that responsibility rested severally with Group One as construction manager or superintendent or, alternatively, as the employer of the construction manager or superintendent under the building contract. It also rested with EMTB as the design and documentation manager or, alternatively as the employer of the design manager under the design and documentation contract. No concerns regarding the presence of a gas line at or near the site or any omissions or inaccuracies in the design drawings were ever raised with either the Management Committee or Ove Arup by the superintendent or any other person prior to the gas explosions on 4 December 1995. 136 The defendant also denied that it had control of the site through having a primary role in CWM. The prosecutor had relied on the evidence of Mr Dilly, that he reported to Mr Burgmann in his role as superintendent and that he regarded Mr Burgmann as being in charge of CWM. The prosecutor also relied on the fact that Mr Burgmann was employed by Ove Arup and was seconded to the CWM as the consultant's representative and also acted as secretary at some meetings including meetings of the Management Committee. The defendant reiterated its general submission that Ove Arup and its employees had a limited and defined role within CWM. 137 Mr Dilly's evidence was inconsistent with CWM documentation and the intention of creating separate strands of expertise within which each CWM participant was to operate. Mr Dilly did not take instructions from Mr Burgmann concerning operational technical matters that were specific to any particular station or stations, and conceded that he could not recall Mr Burgmann ever giving him a direction or giving any assessment concerning his performance. Mr Sibley gave evidence that he never attended any site with Mr Burgmann nor had he ever sought any instruction from Mr Burgmann. Mr Dilly had no recollection of Mr Burgmann wanting to know what was occurring on any of the sites. All this material was inconsistent with the assertion that Mr Burgmann directed or supervised Mr Dilly's duties. Any reporting between Mr Dilly and other managers and Mr Burgmann was to provide a general overview of the progress of the works at the various stations that were part of the upgrade programme and did not relate to specific technical issues. 138 Mr Dilly gave evidence in the Abigroup prosecution, in which he said that he reported to a committee of partners from the Joint Venture for the purposes of day-to-day operations of the Joint Venture but at no time claimed he reported to Mr Burgmann. Mr Dilly's evidence in the present proceedings was to the contrary and he specifically denied reporting to anyone within Group One. Mr Dilly agreed that Mr Patterson, the director of Group One responsible for Mr Dilly's employment, attended CWMs office on a regular basis and there was a record of at least 10 visits by Mr Dilly to Group One's offices during 1995. 139 Mr Burgmann's formal role while seconded to CWM was that of "consultant's representative". The consultant's representative was appointed to manage the daily activities of the project team and to act as a single point of contact between the SRA and CWM for the day-to-day needs of SRA. That role was to facilitate discussions with the client (SRA) as a matter of sound commercial practice given the nature of the project management contract. Mr Burgmann's evidence was that his role was to co-ordinate the activities of the various Joint Venture staff and report to the Management Committee and the SRA. Mr Dilly reported to him in terms of progress and difficulties that might need to be addressed. Mr Burgmann's role was not to duplicate the role of the managers but rather to ask pertinent questions and review current projects for outstanding difficulties, documentation costs, etc. This was understandable when four different organisations were undertaking different responsibilities - it was necessary to bring all the strands together and report in a consolidated form. 140 The Court was urged to look at the "big picture" starting with the size of the programme. Mr Burgmann was never a construction or design supervisor in the way suggested by the prosecutor, that is, having an alleged duty to look over the shoulders of the various managers and direct their duties. Each manager was specifically engaged by the relevant Joint Venture participant as an expert in his own field of operation and, in turn, monitored the duties and results of a line of expert personnel operating in their own fields of expertise. The organisation was explained by reference to construction work as follows: Josef &Sons had Robert and Daniel Josef and Mr Adler (an engineer) supervising their demolition work: Abigroup then had the project manager Mr Bolger and the foreman Mr Bustamante to supervise both Josef & Sons and Abigroup construction work; CWM had Mr Sibley as the on-site project manager; SRA/CWM then had Mr Dilly as the superintendent/construction manager. The proposition that Mr Burgmann had the duty and responsibility to supervise long lines of supervisors in both areas was said to defy commercial construction reality. Ove Arup's remuneration was provided on the same basis as other CWM participants and did not reflect any special role for the defendant within CWM. 141 The defendant submitted that the only control it was able to exert for the purposes of s 17 of the Act, was control resulting from its inclusion as a member on the Management Committee operating under the Joint Venture agreement. Among the provisions dealing with the Management Committee was the statement that it had full and complete power and authority to give all approvals and to make all decisions and determinations required or permitted to be given or made by CWM participants pursuant to the Joint Venture agreement. The duties of the Management Committee under the Joint Venture agreement included doing all things necessary or advisable for the efficient and economic conduct of the project (being the work conducted for SRA) and to ensure that the Joint Venture carried out its duties and obligations in accordance with the project management contract and all applicable laws, regulations, orders and rules. The defendant acknowledged that the Management Committee could exercise power to play a role in the appointment of an appropriately qualified superintendent for the building contract; ensure that Group One and the superintendent performed their duties and obligations in accordance with all applicable laws and regulations; play a role in the appointment of an appropriately qualified architectural design manager; and, ensure that EMTB and the architectural design manager performed their duties and obligations in accordance with the building contract. 142 Any relevant control the defendant might have exercised through the Management Committee would not have been direct control of either the construction site at Kogarah or of overseeing the detailed design documentation - the defendant had one vote on the Management Committee comprising four representatives with separate responsibilities. Group One and the superintendent had responsibility for the Kogarah construction site, and EMTB and the architectural design manager had responsibility for overseeing the detailed design documentation. It was accepted that the Management Committee could play a role in the employment of staff in that the Joint Venture agreement allowed the Management Committee to make a determination regarding the employment of a person by one of the participants and it could require a participant to remove an employee from working on the upgrade programme if it was of the view that the employee's performance was unsatisfactory, in which case the participant was then required to find another person to assume the role. Notwithstanding these provisions, the primary responsibility for employing persons with required expertise rested with each participant. At no time did the defendant have any reason to believe that the persons engaged by either Group One or EMTB and seconded to CWM were other than suitable and sufficient qualified for their roles. 143 Mr Dilly was well experienced in the construction industry and should have been aware of the role he was required to perform. However, his evidence in the proceedings suggested that he lacked relevant experience to competently perform the duties and roles of either a construction manager or a superintendent, and that he had a deficient understanding of this function required of him and/or simply failed to properly perform the role for which he was engaged. It was only during the course of the proceedings that the defendant was made aware of the true extent of Mr Dilly's inability, inexperience or ineptitude to perform the duties as construction manager/superintendent. The deficiencies had not been drawn to the defendant's attention at a relevant time. The defendant, with the other CWM participants could have exercised the powers to have him removed. Group One would then have been required to identify and appoint a suitable person to fill that role. Similarly, if the defendant had known of inaccuracies and omissions in the Kogarah upgrade design drawings, then the defendant with the other three participants should have taken action to remedy those deficiencies. 144 The defendant's control over the superintendent's own design manager's performance was similarly limited. As a practical matter, the other three participants could not have been expected to have direct involvement in the other participants' performances, nor would the other three participants have knowledge of the technical aspects of the fourth participant's performance. This all followed from the separation of responsibilities and duties. There was no legal right to directly alter or rectify one participant's performance by the other participants as they were not in a partnership or an agency relationship with each other: the other participants' roles were limited, through the medium of the Management Committee, to directing another participant to rectify problematic performance. The Management Committee relied on a participant's manager to advise it of any problems within that participant's area of the programme. There was no overlapping of skills with a view to monitoring or supervising another participant's dedicated area of operation. The Management Committee's role was to facilitate the operation of the business and its client relationship with SRA and to permit the four participants to interact with a view to making decisions about the future conduct of CWM - the Management Committee was not an "arch expert body" set up to arbitrate on technical issues that arose within each participant's allocated area of expertise. In addition, there were numerous references in the evidence which could have led the Management Committee or the participants to conclude that Mr Dilly as superintendent and Mr Sibley as superintendent's representative were frequently noting, discussing and dealing with matters of safety at various railway station upgrade sites. 145 There was nothing in the correspondence that could lead the Management Committee or the consultant's representative or any of CWM participants to conclude that the design co-ordinator and the design manager were not satisfactorily fulfilling their roles by requiring the inclusion of all relevant safety references in the design drawings. 146 Working from the basis that the defendant had limited control of the construction site at Kogarah, the defendant submitted that, in the somewhat novel circumstances of the Joint Venture arrangement, the Court should adopt a four step sentencing strategy. Firstly, it was to be observed that the Joint Venture was one entity with its unity being achieved through the Management Committee; secondly, applying the approach of the High Court in Markarian v The Queen [2005] HCA 25, a global penalty should be determined for CWM's single entity consistent with the part that any or all of the various participants and their employees were perceived to have played in the offences. The principle of parity would apply in light of the concluded prosecutions against Abigroup, Josef & Sons and AGL noting that SRA's charges were dismissed. It was important that in the Abigroup and Josef & Sons prosecutions the trial judges observed that the most serious offences charged were those concerned with the incidents on 4 December 1995, but the defendant in this case did not face a charge in respect of that day; thirdly, to determine separately the degree of culpability of each of the Joint Venture participants by reference to the degree of control each was in a position to exercise over the Kogarah site in respect of the acts and/or omissions giving rise to the offences. That exercise was to be undertaken against the background of the Joint Venture agreement, spelling out the various areas of expertise and responsibility contractually assigned to each respective party and, secondly, the Joint Venture pre-registration and tender documents that clearly set out and advised SRA of the area of expertise of the various participants; fourthly, to impose a separate penalty, "derived from the CWM global penalty pool", on each of the four Joint Venture participants, commensurate with the perceived degree of culpability attaching to each and taking into account the evidence and matters put in mitigation on behalf of each participant. 147 In the sentencing exercise, CWM should be observed as being more remote from an intimate connection with any of the actual circumstances giving rise to the explosions than either Josef & Sons or Abigroup, with both these entities being "the hands on" participants in construction and demolition matters at the Kogarah site. Josef & Sons and/or Abigroup had the immediate responsibility for the disconnection and protection of the charged gas line as and from 10 November 1995 under their respective contracts and physically participated in the performance of the demolition and construction work. While it was accepted that CWM's superintendent should have been advised of the disconnection of the gas service, there is no evidence that such notification had been given. The disconnection of the gas line by an AGL employee was witnessed at least, and directed by the Abigroup foreman Mr Bustamante who should have known that the termination point would eventually fall within the construction site. There was evidence that CWM's superintendent Mr Dilly knew of the existence of the gas line to the fish shop prior to the demolition commencing and knew of the position of the disconnected gas line on the construction site after demolition of the shops and prior to 4 December 1995, having observed the star picket, bunting and logs. There was no evidence to suggest that any CWM participant or employee, beyond Mr Dilly and Mr Sibbley, had knowledge of the disconnection of the gas line prior to the explosions on 4 December 1995. 148 There is no evidence to suggest that any CWM participant had prior knowledge that Josef & Sons' employees were to perform work at the Kogarah site on 4 December 1995. It was accepted by the defendant for the purpose of the sentencing proceedings, Josef & Sons employee Mr Campbell was responsible for interfering with or snagging the charged gas line when operating an excavator at the Kogarah site on 4 December 1995, a day that was a union picnic holiday and when no work was scheduled to be performed at the site. 149 In relation to the application of the parity principles, the defendant pointed out that the penalties against Josef & Sons for offences on 10 November 1995 and between 10 November and 4 December 1995, amounted to $1,330,000: however, the actual penalty imposed for those offences after the principle of totality was applied was $810,000. Fines imposed in respect of charges relating to 4 December 1995 were irrelevant to the present assessment of penalty given that the charges on that date had been withdrawn and dismissed. 150 The defendant then addressed the prosecutor's submissions on parity, pointing out that the penalties imposed on Josef & Sons Construction Pty Ltd for the offences occurring on 10 November 1995 and between 10 November 1995 and 4 December 1995 while amounting to $1.33m were reduced to $810,000 after the application of the principle of totality. Fines imposed in relation to 4 December 1995 were irrelevant to the present sentencing exercise as the charges against the defendant referrable to that date had been withdrawn and dismissed. The defendant then provided a table which, for convenience is reproduced below, setting out the various charges and penalties imposed in relation Abigroup, AGL, and Josef & Sons in relation to the same set of circumstances at Kogarah Station. Name of defendant Charge: Section and period Penalty prior to totality considerations Penalty imposed $250,000 (50% of maximum) $175,000 (reduction of 30%) Abigroup Section 15(1) - 10 November 1995 First instance decision Decision of Full Bench on appeal of Kavanagh J Section 16(1) - 10 November 1995 $250,000 (50% of maximum $175,000 (reduction of 30%) First instance decision of Kavanagh J Decision of Full Bench on appeal Section 15(1) - Between 10 November 1995 and 4 December 1995 $300,000 (60 % of maximum) $225,000 (reduction of 25%) First instance decision of Kavanagh J Decision of Full Bench on appeal Section 16(1) - Between 10 November 1995 and 4 December 1995 $300,000 (60 % of maximum) $225,000 (reduction of 25%) First instance decision of Kavanagh J Decision of Full Bench on appeal AGL Section 15(1). The particulars cover the period 10 November 1995 to 4 December 1995 $275,000 (55 % of maximum) $162,500 (reduction of about 41%) Section 16(1). The particulars cover the period 10 November 1995 to 4 December 1995 $275,000 (55 % of maximum) $162,500 (reduction of about 41%) JSC Section 15(1) - 10 November 1995 $300,000 (60 % of maximum) $175,000 (reduction of about 42%) Section 16(1) - 10 November 1995 $300,000 (60 % of maximum) $175,000 (reduction of about 42%) Section 15(1) Between - 10 November 1995 and 4 December 1995 $365,000 (73 % of maximum) $230,000 (reduction of about 37%) Section 16(1) - 10 November 1995 and 4 December 1995 $365,000 (73 % of maximum) $230,000 (reduction of about 37%) 151 It was then submitted for the defendant that the principle of parity should apply to the present matter and that, in applying that principle, consideration had to be given to the relevant roles and culpability of CWM as a single entity defendant and, secondly, Ove Arup as part of the Joint Venture. The defendant relied upon the comments of Schmidt J in sentencing Josef & Sons Contracting Pty Ltd where her Honour stated that, overall, that defendant had a greater responsibility for the events than Abigroup, having itself taken dangerous steps and failed to take necessary steps to ensure safety of the site "rather than having merely supervised the work in question as head contractor". The defendant submitted that it was entitled to a reduction in penalty for similar reasons. CWM should be regarded as having a lesser degree of responsibility for the offences than Abigroup which, in turn, had lesser responsibility that Josef & Sons. CWM's liability was attracted due to it having the ability, through the Management Committee, to control the superintendent. CWM should therefore be regarded in a substantially different light to both Josef & Sons Construction and Abigroup: CWM was further removed from the acts and omissions giving rise to the explosion that these two defendants and should be held to be less culpable. 152 It was also said to be relevant in determining an appropriate penalty to take into account the fact that the SRA, being the head contractor and occupier of the construction site, while being an original defendant in the proceedings was not pursued to appeal following the initial dismissal of charges by Schmidt J. The dismissals against all other defendants in the proceedings were successfully appealed and reinstated. However, the dismissal of charges against the SRA remained undisturbed. 153 The principle of totality also had application in these two matters. The Full Bench of the Commission, dealing with the appeal on sentence in Abigroup (Abigroup Contractors Pty Ltd v WorkCover Authority of NSW (Inspector Maltby) [2004] NSWIRComm 270), gave consideration to the principle of totality given the different periods covered by the charge. The Full Bench noted the substantial degree of commonality between the various offences. In the present matters, the allegations in the Applications for Summons in respect of each prosecution were in identical terms, except that in Matter No 5482 of 1999, the charge related to a period "on or about 10 November 1995", while in Matter No 5483 of 1999, the charge related to a period between 10 November 1995 and 4 December 1995. Apart from the dates specified in the two charges, the particulars of each prosecution were substantially the same. The difference appears to be that, of the 22 listed particulars in Matter No 5483, there are two particulars which do not appear in Matter No. 5482, namely, an allegation that, prior to 4 December 1995, the gas supply line became exposed when an excavator was used to remove the footings of the building and, secondly, a stake was used to mark the gas supply line when it became exposed. It was submitted that the two charges contained largely common elements and the offences arose from the same set of facts. The gravamen of the offences was substantially similar, so that the principle of totality should apply in accordance with the statements of principle made by the Full Bench in the Abigroup sentence appeal. 154 The defendant challenged the prosecutor's submission that, in both the Abigroup sentence appeal and in the Josef & Sons sentence hearing, the Court maintained a higher level of fines across the various periods of the charge. In both matters, at first instance, different Members of the Court expressed the view that the most serious offence occurred on 4 December and the least serious offence occurred on 10 November 1995: that was confirmed by reference to the defendant's table referred to earlier. 155 Having regard to the different responsibilities allocated to each participant in the Joint Venture, it was not appropriate to simply allocate 25 per cent of the responsibility to each of the participants. For example, Group One was solely charged with responsibility for construction management, and EMTB was solely responsible for architectural and design management. Ove Arup's expertise and responsibilities lay in the area of project management and engineering and there was no overlap in responsibility in performing the duties of other participants. Mr Burgmann's role was not one of overall control, as had already been submitted, but he was the co-ordinating project manager. The evidence showed that SRA, from time to time, directly approached or corresponded with various project managers of CWM's participants rather than taking up an enquiry directly with the consultant's representative. The defendant identified the major "weakness in the chain" as being Group One's failure to ensure that CWM's construction manager/superintendent had the necessary experience and expertise to properly discharge his duties. Mr Dilly was, in fact, inappropriate as a choice for the unsupervised position having regard to its responsibilities. Each CWM participant, however, relied upon the expertise of the other in selecting, inducting and instructing persons with sufficient knowledge, experience and expertise to fill positions required in the area of responsibility allocated to that participant. While the building contract permitted Mr Dilly to delegate his duties to Mr Sibley as the superintendent's representative, the defendant accepted the statutory obligations under the Occupational Health and Safety Act 1983 could not be delegated. 156 The defendant did not resile from the position that the Kogarah upgrade design drawings provided to Abigroup should have identified the presence and location of the gas line, but that was a failure that, it was submitted, should be assessed by the fact that representatives of Josef & Sons, Abigroup and CWM (through Mr Dilly and Mr Sibley) knew of the presence and location of the charged gas line prior to it being disconnected and that disconnection was undertaken prior to the demolition commencing. It appears from Mr Bustamante's evidence that any omission of the location of the gas line in the site drawings was irrelevant to the location at which the disconnection occurred or was permitted to occur. It was accepted that whether the subsequent investigation as to the source of the gas line and its protection was inadequate was a different issue. The gas line termination point was nevertheless depicted by a star picket and bunting, marking the area. This was not a case of a previously unknown, undetected and unmarked service which had not been disclosed on the site specifications being dug up, damaged or fractured. 157 In relation to the timing of the plea of guilty, while not a plea entered early in the proceedings, discussions concerning a plea were entered following a director's presence in the Court during Mr Dilly's evidence. The matters raised by Mr Dilly concerning site safety and the denials made by him concerning the superintendent's duties and responsibilities were considered inappropriate by Ove Arup as to the conduct of a construction manager or superintendent. To the extent that there was a late plea, that did not reflect lack of contrition. The estimate of the continued trial was a further five to six weeks - to which extent, the Court's valuable resources had been spared and the public purse saved considerable expense. As to the prosecutor's complaint that there was little real concession in the plea, apart from the facts of the explosions and the events leading up to them, the defendant pointed out that it was entitled to call evidence as to its level of culpability which was intertwined with the degree of control it had over the site. The considerable documentation provided to the Court, it was submitted, supported the defendant's approach. In all the circumstances, the defendant was entitled to a substantial reduction in penalty consequent upon its pleas of guilty. 158 The defendant had come before the Court with an unblemished record and its history demonstrated that it was good corporate citizen. The defendant had a proud heritage of being involved in numerous landmark developments and projects throughout Australia. The company promoted observance of important values and was involved in charity and education not only in monetary terms but also in the voluntary provision of people and knowledge to assist in disaster relief. 159 As to considerations of general and specific deterrence the need for general deterrence was substantially diminished if the Court accepted that the defendant was substantially removed from the central area of culpability. At to specific deterrence this was not a case of the defendant being involved in a serious breach of safety by ignoring risks without attempt to redress the causes giving rise to a breach of the Act. The defendant had demonstrated a committed pro-active approach to workplace safety and in the circumstances there was little need for consideration of specific deterrence. The defendant took issue with the prosecutor's submission that it was merely involved in a buck passing exercise. It was submitted that the defendant had always proceeded in the strongly held belief that there was a clear division of areas of operation set out in the Joint Venture agreement which effectively defined and delineated the parameters of responsibility of each of the Joint Venture participants. 160 In relation to costs, it was submitted that the proper order of costs should be that each party pay the costs of the other party as previously ordered by the Court, such costs to be agreed or as assessed and that in respect of those parts of the proceedings against the defendant Ove Arup and Partners which were not the subject of previous costs orders, the defendant pay the prosecutor's costs agreed or assessed. DELIBERATION 161 Having regard to the manner in which the case has been argued and the concentration on the issue of the degree of control exercised by the defendant, it is appropriate to commence consideration of the matters raised by dealing with the terms of the Joint Venture contract with SRA. 162 A defendant's letter, signed by Mr Burgmann, to SRA in July 1994 confirmed that the tender was from the individual companies acting as a consortium and each agreeing to be bound by the terms of the tender. In an April letter from the defendant, it was confirmed that the consortium's intention was to set up a project office at Clarence Street for the entire full-time project team. Mr Burgmann would be the single point of contract with SRA as the consultant's representative. The Joint Venture was to be "controlled" by a Management Committee comprised of directors of the four Joint Venture parties. 163 In April 1994, legal advice was provided to the consortium that an unincorporated joint venture was the most appropriate vehicle for the participants to carry out the project. Proceeding in this manner gave the participants "maximum flexibility" in their approach to the project. This document was forwarded to SRA. 164 In March 1994, the defendant was corresponding with SRA and referring to "our complete team approach to this project management task". In discussions with SRA about Quality Assurance Systems, the defendant referred to an "inspection and test plan check list of inspections" document, using the title "ARUP - TMG CONSORTIUM". That document was dated January 1994 and contained a sub-heading, "Construction Process: Demolition". The document proposed inspections to check protective measures for safe public right-of-way and for "any hazardous materials removed, isolated or contained". In checking the preparation of the works for demolition, the inspection would address "existing services, disconnected, sealed off or diverted". 165 In its tender pitch, which became part of the contract, the consortium claimed that its "Project Management Services Methodology" was aimed at achieving, inter alia, "Pro-active Project Management Organisation". The Project Management Unit was to develop, implement and maintain a project monitoring and control system that would apply the current "world's best practice in this field". There would be ongoing performance evaluations of each Project Manager and their Project through "constant surveillance and reporting". Of 18 main "tasks", one was identified as "safety" with "each task brief" being managed by the Consultant's Representative and designed to identify the level of involvement required for both CityRail and "our support personnel". The document spoke of the role and function and the Principal and Superintendent needing to be clearly defined and that the Superintendent needed to be independent to perform his role as "certifier/valuer". 166 In SRAs specification documents, under the heading "Preamble", the following was stated: City Rail wishes to outsource the management of the Programme to a suitably experienced Project Management Consultant who will be engaged to manage all the building and civil works on behalf of CityRail's Development Group and be responsible to the Programme Manager Station Upgrading from their inception to completion. The Consultant may, as an option, be required to establish an office, from which the Programme can be managed within five Kms of Transport House. In relation to the consultant's representative, the specifications stated: The Consultant shall appoint a Representative who shall be the lawful representative and attorney of the Consultant, lawfully entitled to exercise for the purposes of the contract the powers, duties, discretion and authorities of the Consultant, and authorised to bind the Consultant by his decision and acts or omissions. The Consultant shall notify the Authority of the name and designation of such representative within 14 days of the date of a Letter of Acceptance. . . . An appointment under this clause does not prevent the exercise of a power, duty, discretion or authority by the Consultant and the Consultant may at any time revoke any such appointment by notice in writing to the Authority. 167 The specification document provided for an Authority's Representative who was lawfully entitled to exercise, for the purposes of the contract, the powers, duties, discretion and authorities of the Authority and to administer the contract and, on behalf of the Authority, issue directions concerning any matters relating to the manner in which the services were to be carried out or performed under the contract. The Authority's Representative could give and the Consultant was to comply with any direction to the Consultant in relation to all concerned in the execution of the services. Those directions could include the availability of access to the place of the services, hours of operation relating to the services and the programme of services, the preparation of reports by the Consultant concerning the carrying out of the services in accordance with directions and the provisions of the contract and the rejection of any of the services which, in the opinion of the Representative, did not conform with his direction or with the requirements of the contract. 168 Under the specification documentation, there was to be evaluation criteria that included a consideration of the tenderer's record of managing projects involving liaison with a number of other parties involved in infrastructure work and/or other projects, proposed methods of dealing with external parties and statutory authorities and proposed quality assurance/quality control methodology. 169 Part D of the specification dealt with technical requirements and the scope of the services. Under the heading "The Programme", parts of the "Preamble" were repeated, including CityRail's wish to outsource the management of the programme to a suitably experienced Project Management Consultant who was to manage all building and civil works on behalf of CityRail's Development Group and be responsible to the Programme Manager Station Upgrading from their inception to completion. Under the scope of the services, the specification document stated that the scope of the services was the provision of Project Management Services for the upgrading programme to ensure that the Programme was implemented in a systematic manner while meeting CityRail's objectives in terms of function, quality, time and cost. The services included were not limited to: · inspection of the request of worksites, preparation of concept design and the provision of cost estimates and staged programme implementation; · administration of contracts in the role of superintendent or engineer, as appropriate, of the contracts in the programme; · management of each project individually and planning ahead for track possessions and power-offs; ensuring that contract documents contain appropriate clauses which refer to working hours, available power-offs and track possessions; · ensuring the provision of safe environments for the public, station staff and workers at all sites; · rigid implementation of all safe working and SRA Rules and Regulations to minimise inconsistencies and contractual variations. 170 Under the heading "Administration", the specification document stated that the Consultant would receive and act in accordance with instructions from the Authority's Representative and prepare a programme manual describing the methods to be adopted to plan and administer the different projects in the programme. Amongst matters to be dealt with by the programme manual were procedures for issuing of instructions by the Consultant and his representatives to contractors; procedures to be adopted in the event of industrial disputation on the site; procedures for track possessions and power-offs; and such other procedural matters that the Consultant considered necessary for the proper management of the contract. Other matters dealt with under the heading "Administration" were the Consultant's obligations to: organise meetings with design consultants and contractors and report to the Authority's Representative in writing in relation to those matters; preparation of all documentation, reports, submissions, correspondence and other written material required in relation to the provision of the services; preparation of recommendations for the provision of construction site security services; and the procurement or supervising the procurement of all approvals, consents, licences and permits for the design, construction, and use of the works with the consultant to advise the Authority's Representative with respect to the progress in obtaining such approvals, consents, licences and permits. 171 In dealing with the supervision of the work, the specification document stated that the Consultant was to be nominated as superintendent or engineer, as appropriate, for all contracts existing or yet to be awarded as part of the programme. The Consultant could delegate such part of the superintendent's power to his project managers of the projects for which they were responsible. For existing projects, where contracts had been awarded for construction management, the construction manager was responsible for the provision of all site supervision. The Consultant was to administer the construction management contracts including, but not limited to, ensuring that site supervision was carried out in accordance with the contract between the construction managers and the Authority. The Consultant "may be required to provide safety staff for projects". 172 In dealing with quality assurance, the specification document stated that all work performed by the Consultant in the provision of Project Management Services was to be carried out in accordance with a number of specified Australian Standards and in accordance with the Authority's Quality Management Manual. The contract that the Consultant was required to administer in the role of superintendent would contain requirements for Design Consultant/Contractors to provide Quality Assurance in respect of the work under the respective contract. The Consultant was required to monitor, supervise and carry out such checks as he considered necessary on the Design Consultant/Contractors' quality assurance both on and off site to ensure that the quality of the work on the project was in accordance with the requirements of the relevant contract. 173 Clause D2-13 in the specification document was headed "Safety" and provided: (a) the Consultant shall: (i) prepare and administer a "Safety Plan" for the Programme incorporating all of the requirements of the Authority as well as other Statutory Authorities. (ii) ensure that all work on the Programme complies with the Occupational Health and Safety Act 1983. . . . (iv) prepare, and include in the A.P. Programme Report a Safety Plan Report. 174 In relation to industrial relations, the specification document said that the contracts that the Consultant was required to administer in the role of superintendent required each contractor to be responsible for industrial relations in respect of the work under the specific contract. The Consultant was required to co-ordinate and monitor the industrial relations aspect of the programme, but any active role of the Consultant was to be carried out only with the written agreement of the Authority's Representative. The Consultant was to prepare and include in the A.P. Programme Report, an industrial relations report describing the industrial relations aspects of the programme and make recommendations for action, where appropriate. 175 Under the heading, "Commissioning", the Consultant was to administer and inspect the testing and initial operation of all equipment installed at construction sites to ensure their compatibility with all specification requirements and arrange for contractors to rectify any defect or lack of compliance. The Consultant was also to ensure that the contractors commissioned all equipment in accordance with the requirements of their contract and that all operating and maintenance manuals were submitted, as required by the appropriate contracts. The SRA awarded the contract to the four companies, including Ove Arup, referring to them as a "consortium", thus acknowledging their unregistered association. 176 Having regard to the terms of the contract between the participants and SRA, I am in no doubt that the Joint Venture had considerable control over occupational health and safety in relation to the Upgrades Programmes including the Kogarah Upgrade. Under the contract, it was the obligation of the consultant, being the Joint Venture, to prepare and administer the safety plan and to ensure that all work on the programme complied with the Occupational Health and Safety Act 1983. Under the contract the consultant, being the Joint Venture, was nominated as superintendent for all contracts existing or yet to be awarded and was to ensure that site supervision was carried out in accordance with the contract between the construction managers and the Authority. The scope of service included ensuring the provision of a safe environment for the public, station staff and workers at all sites. It also involved the rigid implementation of all safe working and SRA rules and regulations to minimise inconsistencies and contractual variations. The scope of the services included inspection of requested work sites and the commissioning of all equipment installed at construction sites. The required Programme Manual was designed, amongst other matters, to enable instructions to be issued to contractors. 177 The approach of the defendant Ove Arup, that it was just responsible for one aspect of the project in line with its project management expertise, was ill-defined at best. However, the whole structure of the Joint Venture and its contract with SRA was the presentation of one entity dealing with SRA and not four entities dealing with SRA. That was the much-touted benefit held out to SRA - that there would be an unincorporated joint venture combining the skills and experiences of four respected corporations and providing certain flexibility yet requiring SRA to deal with only one entity. The Joint Venture was to work out its own internal operations so that it presented a single point of reference and a single face to SRA with which to deal: SRA did not have to go directly to Group One or to EMTB for aspects of the contract as they were all to be filtered through the Joint Venture entity and the consultant's representative. The Joint Venture held out to SRA that it was controlled by a Management Committee as representing the four Joint Venture parties and emphasised the team approach, including the team approach to quality assurance. Using this approach, there were to be ongoing performance evaluations and continual surveillance. The Consultant's Representative (Mr Burgmann, nominated by Ove Arup) was to have the authority to bind the consultant by his decisions, acts or omissions and the Authority's Representative could give directions to the consultant and was not required to give directions to each participant. Using this approach, there were requirements for inspections and managing each project in terms of matters such as working hours, power-offs and track possessions. The Consultant was to be involved in industrial relations and to make recommendations about the industrial relations of contractors and was involved, at least, in supervising the procurement of all consents, approvals, licences and permits. The Consultant was involved in the role of commissioning all equipment installed at construction sites and this was a direct involvement and not remote in any way. 178 The combination of these provisions and possibly others, placed considerable authority in the hands of the Joint Venture to supervise occupational health and safety on sites such as the Kogarah upgrade and conferred authority upon the Joint Venture to give such directions as were necessary to ensure occupational health and safety. The theme running through the evidence and submissions for the defendant that the defendant was not to be another on-site supervisor hovering at the shoulder of every contractor and sub-contractor may well be true, but as numerous cases have demonstrated in this part of the Court's jurisdiction, the answer to ensuring occupational health and safety does not always mean that there must be ever growing levels of direct supervision: by whatever means the task is performed, the ultimate responsibility is to ensure the health and safety of persons on the site. The defendant, especially through Mr Burgmann, was equipped with ample authority to take any step thought appropriate to achieve the objective of ensuring occupational health and safety on the sites in the programme including the Kogarah site: there was no reason why the superintendent and the consultant's representative could not have co-operated to ensure site safety and compliance with the Occupational Health and Safety Act 1983. The defendant's approach attempts to compartmentalise responsibility for occupational health and safety while disavowing an intention to delegate its own responsibilities in this regard. The decision of Peterson J in Growth Equities has consistently been accepted as authority for the proposition that a defendant does not need to have exclusive control of a workplace in order to be liable under s 17 and the fact that some other entity has control, to an extent, over the site will not absolve a defendant that also has, to an extent, control over that site. The legislation contemplates that more than one entity may have control over a workplace and, even if the degree of control varies between entities, all such entities have responsibilities for occupational health and safety at that site. Further, it may be added that the defendant's approach in this case came very close, in substance, to a delegation proposition: it asserted that it was not a day-to-day supervisor and that it was the nominated superintendent from Group One and the individual contractors that had that role. The defendant, of course, accepted the long line of authority in this Court that the responsibility for occupational health and safety at a workplace cannot be delegated. 179 The extent of the Joint Venture's capacity to act and give directions to contractors was best demonstrated by CWM project procedures that were issued in June 1996. These particular procedures, at least in part, were tendered to demonstrate what the defendant had done by way of rethinking its approach to safety after the December 1995 explosion and fires. However, the document also shows the extent to which the Joint Venture could give directions in relation to safety at the sites. It was accepted that the safety component of these project procedures effectively replaced the December 1995 safety plan and was far more comprehensive. The safety provisions in the 1996 project procedures covered some 25 pages and stated as its purpose the setting out of safety measures and restrictions to be "enforced on contractors working on station upgrading works". The procedure regarding safety was applied to all construction contracts for which CWM acted as the superintendent. Under the procedures, a contractor was obliged to prepare a safety plan in accordance with the contract or as instructed and was to keep such records and provide copies as required. The contractor was to provide a monthly report of compliance for review by the superintendent or his representative. There were detailed instructions as to the preparation and application of safe work method statements, a safety analysis prior to work and a provision that apart from the contractor's own site safety inspection and audits, the superintendent or his representative would at least on a monthly basis carry out a site safety inspection and audit with the contractor. In an Appendix under the project procedures, there was a pre-commencement check list and hazard identification. A number of items were listed as being necessary for consideration when identifying site specific safety hazards and required appropriate control measures to be put in place prior to starting work at the site. The first two items dealt with the location of railway services (eg signals cables, electrical cables, water, compressed air lines, communication cables etc) and the location of other utilities (eg water, gas, telephone, electricity, sewerage etc). The check list also dealt with the need to protect public areas/passenger movements, hours of work, work site supervision, excavations including ground conditions and stabilisation requirements. 180 It was accepted by senior counsel for the defendant that this document illustrated the way in which occupational health and safety provisions could have been enforced prior to the accident but also demonstrated what was in fact done after the accident. Despite that response, there appeared to be a lingering suggestion that these matters should all have been done by the superintendent and that was the role of the superintendent and Group One rather than the responsibility of the defendant, Ove Arup. The 1996 procedures, however, are CWM procedures rather than procedures made by the superintendent. In addition, those procedures appear to be consistent with the obligations and duties of the Joint Venture signatories under their contract with SRA as referred to above. 181 Acceptance of the defendant's argument that it had control, to a degree, through its membership of the Management Committee does not lead to a conclusion that the control so exercised was remote, indirect or far removed from the type of direct control exercised, for example, by Abigroup and Josef & Sons. The contractual arrangements earlier reviewed in detail demonstrate the total control of occupational health and safety on the site that lay in the hands of the Management Committee and their contractual obligation to ensure compliance by contractors with the Occupational Health and Safety Act 1983. Under the contractual arrangements the Management Committee was entitled to issue project procedures including the extensive document dealing with all aspects of safety that was issued in 1996 - that was accepted as being, amongst other things, indicative of the wide power in the hands of the Management Committee. The defendant's submission that control, arising from its membership of the Management Committee, was indirect and remote because it was only one member of that Committee does not sit well with previous decisions of the Court relating to the operation of s 17. 182 In Morrison v Ureka Opals Pty Ltd [2005] NSWIRComm 80, at first instance it was held that the unusual circumstances of the relationship between the person who was the registered owner of a mine and the person who in fact operated and took the proceeds of the mine meant that the registered mine owner did not have the necessary control to permit a prosecution to be brought under s 17 of the 1983 Act. The peculiar circumstances of that case were that under the relevant legislation, a person was limited to the holding of a maximum of two licenses in relation to mining sites. While in a de facto relationship, a person held two such licences but also worked a mine where the licence was held by his de facto partner. When that relationship broke down the licence was transferred to other members of the family working through Eureka Opals Pty Ltd but that was simply a device to overcome the legislative prohibition on holding more than two licences. In practice the company played no role in the mining of the site under the licence but the licence fee was paid while the mining and its proceeds were undertaken by the family member who had previously been working at the site while in the de facto relationship with its licensed owner. At first instance the Court noted that despite the fact that Eureka had no direct involvement in the operation of the claim on a day-to-day basis it did not follow, without more, that Eureka had no ability to control, direct or command the person actually working the claim to ensure that the premises were safe and without risk to health. It was concluded that control of the mine was actually vested in the person who was operating the mine and the person who was making the day-to-day decisions regarding the operation of the mine. The person who would give permission to operate the mine was the person in fact operating the mine and not Eureka. The directors of Eureka had not given permission to the person who operated the mine to do so - it was always treated as effectively his property and all the decision making in relation to the mine resided with that person and not with Eureka. It was found that the evidence showed that the mining operation proceeded on the basis that the controlling authority was with the person actually operating the mine and was not, in any way, with Eureka: the registration of Eureka as the operator of the mine was more of a convenience or contrivance rather than demonstrating that Eureka was at all times the true occupier of the claim or had any role in controlling the mining activities undertaken within the claim. 183 On appeal, the Full Bench concluded that the fact that a person, other than a registered claim holder for a mine, may have control of the mine in a practical day-to-day sense did not necessarily mean that the claim holder was precluded from exercising any control within the meaning of the Occupational Health and Safety Act 1983 (Morrison v Eureka Opals Pty Ltd). The Full Court rejected the view that Eureka had no more than a "technical legal right" to restrict access to the claim and therefore had no practical ability to control mining activities. Eureka was the registered claim holder and under the Mining statute had certain rights and obligations that were not transferable while it held the title to the claim. What was described as a "technical legal right" was in fact a substantive obligation on Eureka, grounded in legislation to conduct the mine operations safely. The fact that the person actually operating the mine may have had control in a practical or day-to-day sense did not necessarily mean that Eureka was precluded from exercising any control. Section 17 was directed to the situation of a person who makes premises available to other persons (not being the persons' employees) as a place of work - if that person, to any extent, has control of the premises, the person has a duty to ensure that the premises and the means of access thereto and egress therefrom, as the case may be, are safe and without risk to health. Even if the directors of Eureka felt personally constrained in intervening in the working of the mine by the person operating it because they considered, in all practicality, the mine was in the possession of that person, that was not a basis upon which to conclude that Eureka had no ability or responsibility to compel corrective action to secure safety. Eureka had a right or interest in the claim that was akin to a proprietary right or interest and it was clearly open to the respondent (and it was legally obliged under the conditions of the claim) to direct the person operating the mine to take steps to ensure safety in the mine. 184 Although arising in a factually different context, the decision in Eureka has relevance for the present proceedings. Ove Arup was a signatory to the contract with the SRA as part of the consortium forming the Joint Venture to undertake the upgrades project. Ove Arup and each participant in the Joint Venture had contractually agreed to ensure occupational health and safety on the site. It mattered not that in the internal operation of the consortium Ove Arup felt that it could not give directions to the contractors or to other participants in the Joint Venture, it had contractually undertaken to ensure safety on the sites as part of project management. Mr Burgmann had been made available as the consultant's representative with all the powers to give directions that position possessed and that undoubtedly included power and authority to give directions in relation to site safety. Far from being indirectly or remotely involved in controlling site safety, Ove Arup was intimately involved in that process both as a signatory to the SRA contract and as a member of the Joint Venture Management Committee. 185 Another circumstance in which liability under s 17 arose was dealt with by the Court in Morrison v Akula Pty Ltd [2004] NSWIRComm 41. In that case, Akula had been contracted to drill ventilation shafts at a goldmine and had itself contracted a specialist to provide project management and the drilling of a shaft. While performing that task the project manager was fatally injured. Akula argued that it did not have any control of the premises submitting, amongst other things, that the miner controlled the mine and the personnel allowed into the mine while the defendant could not stop representatives of the mine owner from coming onto the premises. The defendant was said to have no control over the premises and could not direct a change to the premises to make them safe. In finding that the defendant was in the position to make directions in relation to action to ensure that the premises was safe, the Court held that the defendant had a contractual obligation in relation to disconnecting the reamer drilling head and to dismantle it in order to bring it to the surface. The defendant had sufficient control of the premises in which work was being carried out to ensure that the premises were safe and that control extended to the defendant, through its project manager, being in a position to either direct workers assisting in the tasks that work not proceed on the premises until the premises were made safe. The project manager had, in fact, given certain directions to prevent risk and this illustrated the point that the defendant through its project manager did have control to some extent. While the defendant had contended that it was the mine owner that had control of the premises under the contract and arising out of statutory obligations and that at no time was that control relinquished, the Court, while acknowledging those factors, held that those factors did not result in the defendant being deprived of all control. In deciding penalty (see Akula Pty Ltd (No 2) [2004] NSWIRComm 367, the Court noted the fact that the mine owner had not been proceeded against yet bore a significant responsibility for the risk. In dealing with a submission that Akula had deferred to the knowledge and experience of the specialist project manager, the Court noted that a person having control of non-domestic premises that had been made available for persons as a place of work must ensure the premises are safe and without risk to health and the person who has control cannot defer or delegate the responsibility for safety to another. The penalty imposed on Akula, while taking into account the responsibility and culpability of the mine owner, was not notionally divided as one penalty between the two culpable entities as was suggested in the present case. Akula is another example of contractors bearing substantial liability for safety even though there are others who have significant control of that workplace. 186 It is significant that in Growth Equities the shopping centre manager had de facto control of the plant in question in a prosecution under s 17 and it was unnecessary to determine whether the defendant had "de jure" control of that plant. Further, the fact that the plant was in the possession of another entity, namely Woolworths, was insufficient to take them outside the control of Growth Equities as centre manager. Peterson J noted that the evidence suggested that the managing employees of Growth Equities did not consider it their responsibility to oversee the use of the plant but those matters did not absolve them from the duty to exercise any control that they may have had. In the present case, Ove Arup as a signatory to the SRA contract, as a member of the Management Committee and in providing the consultant's representative had the capacity to formulate safe working practices to be adopted by contractors working on the site such as Abigroup and Josef & Sons. The fact that they did not think they had any right to give directions to contractors and sub-contractors about site safety is as irrelevant as it was in the case of Growth Equities. Further, there was no reason why such safety directions would not have been taken to the Management Committee by Ove Arup. 187 Having been satisfied of the capacity of the Joint Venture to control to a significant extent occupational health and safety on the site and to give directions to contractors in relation to safety, it is then necessary to further consider the defendant's approach to the prosecutor's proposition that under the Joint Venture agreement its responsibility for safety was limited to the role it played as one of four members of the Joint Venture Management Committee and how the primary responsibility fell to the superintendent and Group One. Put another way, was there anything in the terms of the Joint Venture Agreement that might act to reduce the responsibility of the defendant Ove Arup and require other defendants, such as Group One, to bear a higher level of culpability? 188 In January 1994, the four participants signed the Heads of Agreement whereby they agreed to form a consortium to bid for SRA's tender for the management of the Stations Upgrades Programme. In that document, they agreed that their liabilities and responsibilities in respect of such tender application would be "joint and several" and that, in the event that they were successful in the tender, they would develop and appropriate joint venture vehicle through which the execution of the project would be effected. The comprehensive Joint Venture Agreement was signed in June 1994. In Clause 7 of that Agreement, the participants agreed that the rights, duties, obligations and liabilities of the participants were, in every case, to be several and not joint or joint and several. It was also agreed that the relationship between the participants was one of joint venturers and was limited to carrying out the project so that nothing contained in the agreement was to constitute any of them as agent or partner of any other of them, or create any agency or partnership for any purpose whatsoever. Except as otherwise specifically provided, a participant had no authority to act for or create or assume any responsibility or obligation on behalf of any other participant and there was an indemnity clause in the event of the Joint Venture suffering a loss or incurring a liability as a result of the default or neglect of one participant or an employee of that participant whereby the participant causing the loss or incurring the liability was to indemnify the other participant in respect of that loss or liability. 189 The defendants divided the responsibilities and duties between them with Ove Arup being allocated project management and engineering, TMG being allocated project management, rail systems and engineering, EMTB being allocated architectural and design management, and Group One being allocated construction management. Contrary to the oft-repeated submission for the defendant that there was no overlap in these responsibilities, on the face of clause 7(2), Ove Arup and TMG shared responsibility for project management and engineering. The evidence presented a very hazy line of distinction between "project management" and "construction management". Further, the clause provided that nothing would preclude a participant from giving services, advice, support or assistance in an area other than that set out against its name if that participant had specialised expertise or abilities, provided that was done with the knowledge and consent of the other parties. It is to be remembered that SRA's tender arose because it wished to outsource the management of the Upgrades Programme to a suitably experienced "Project Management Consultant" that would be engaged to manage all the building and civil works involved in the Upgrades Programme. 190 In relation to employees, all employees of the Joint Venture were to be seconded from the staff of the participants. An initial staff establishment was set up showing which participant would supply the nominated seconded employees. Unless otherwise determined by the Management Committee, any staff specifically engaged by the Joint Venture for the programme were to be engaged by a participant who had expertise in the particular area (being the area in which that employee was to operate), and thereafter that employee would be seconded to the Joint Venture. The on-costs of employing an employee (including workers compensation, payroll tax, annual leave and long service leave) were to be borne by the participant that seconded the employee to the Joint Venture. It is of interest to note that this clause of the Joint Venture Agreement contemplated staff engaged by the Joint Venture but achieved that by having a participant second such a person to the Joint Venture. 191 The Joint Venture was formed with each of the four participants holding an equal share of 25 per cent in the Joint Venture. The participants owned the assets, being all property of every kind and nature whatsoever owned or acquired by or on behalf of a participant for the purpose of the Joint Venture as being held as tenants-in-common in accordance with their respective interests, and each participant committed itself and all reasonably necessary resources to the Joint Venture and agreed to do all things necessary to enable the project to be carried out. Each month there was to be an accounting to each participant of its interest in the receipts in respect of the previous month and was shared equally according to the interests of each participant. The Management Committee was to determine the value of assets of the joint venture as may be supplied by the participants. Each participant was to retain intellectual property supplied for the purposes of the Joint Venture by that participant but, where intellectual property was developed by the Joint Venture, it was to be owned by the participants in accordance with their respective interests, being an equal share of 25 per cent each. 192 The Management Committee had power to require a participant to remove an employee from the Joint Venture where that staff member's performance was unsatisfactory or where the client required that person's removal: once removed, the participant providing that employee was to replace the seconded employee with another employee of equivalent expertise to fill the vacant position. Each participant was to be reimbursed by the Joint Venture the costs of each employee seconded to the Joint Venture by that participant. 193 The Management Committee was to be constituted by a member appointed by each participant and each participant warranted that its member of the Management Committee had the power and authority to bind the participant and was represented by that member on the Committee. Under Clause 9(5) of the Joint Venture Agreement, the Management Committee had "full and complete power and authority" to give all approvals and to make all decisions and determinations required or permitted to be given or made by the participants under the agreement including power to "supervise the activities of the Joint Venture". All approvals, decisions and determinations given or made by the Management Committee under the Agreement were "binding on each and all of the participants". 194 Under Clause 10, the duties of the Management Committee were by themselves or through agents or independent contractors as it might engage, do all things necessary and advisable for the efficient and economic conduct of the project including administering the project on behalf of the participants and keeping the participants fully informed of all matters of which the Management Committee was aware pertaining to the project. The Management Committee was to ensure that the Joint Venture carried out its duties and obligations in accordance with the contract, established good management methods and practices, annual programmes, and all applicable laws, regulations, orders and rules. 195 Under Clause 11, the powers of the Management Committee were described as such powers, functions and authority from the participants as may be necessary to enable the Management Committee to carry out its duties and obligations including the power to employ, engage, appoint and contract with engineers, accountants, solicitors, barristers and other professional or technical advisers, consultants, contractors and experts to do all things usual and desirable to be done for the purpose of conducting the project, and the negotiation and entering into of agreements for the supply of materials, equipment, buildings and services in connection with the project. The Management Committee was also to provide progress reports to the participants each month and, if requested by a participant, was to prepare and submit reports on industrial relations, government affairs, staff organisations and all agreements which the Joint Venture had entered into and in relation to matters arising from a project that had been reasonably requested by a participant. 196 The participants were to progressively conduct the project through the Management Committee and in accordance with, inter alia, good construction, engineering and architectural practice, sound commercial practice and "all applicable laws, regulations, orders and rules". 197 According to the defendant, from the terms of the Joint Venture agreement and the representations made to SRA, the participants had made it clear that there was a division of responsibilities within the Joint Venture and that the responsibility for construction management lay with Group One and the superintendent it nominated and therefore the responsibility in that regard did not lie with Ove Arup. In a further submission it was argued that Ove Arup, apart from its position on the Management Committee, had no legal right to give a direction to any other participant. 198 In part, the prosecutor's answer to these propositions was that the Joint Venture was in fact and in law a partnership and that in any event each participant was vicariously liable for the acts or omissions of any person seconded to the Joint Venture, whether or not that person was seconded by that particular participant. In my view, it is not necessary to determine the arguments as to partnership and vicarious liability, although the evidence tended against the Joint Venture being a partnership. 199 I have difficulty with the concept of dividing responsibility amongst the participants in the Joint Venture according to their own areas of expertise especially where there were areas of overlap and where there was a great deal of imprecision, for instance between what might properly come within project management as distinct from construction management. In the way in which the evidence fell from those engaged in the project for the Joint Venture there seemed to be an almost ethereal quality about the relationship between the participants and the relationship between the Joint Venture and the contractors. The impression promoted by that evidence was of a higher level of professional expertise sitting above the day-to-day longueur of on-site and hands-on work. On this view, the Joint Venture did not step from its lofty separation or engage in any assessment of the safety of the site, but simply sat in splendid isolation waiting for someone else to bring forth a problem which they then might, or might not, attempt to solve. 200 I am unable to accept the defendant's submission as to the effect of the way in which the Joint Venture was said to operate. I can accept that, as a matter of convenience and practicality, certain areas were allocated for the attention of nominated participants because of a particular expertise, but I am unable to take the next step and to conclude that, by this allocation, the participants in the Joint Venture isolated themselves from acts or omissions relating to occupational health and safety. This is the area of the defendant's argument that comes closest to a delegation of responsibility: what, it may be asked, is the difference between the defendant's proposition and an employer who engages a labour hire company and enters an arrangement such that only the labour hire company will be responsible for the acts and omissions of the employee? The provisions of the Occupational Health and Safety Act go to some lengths to ensure that such arrangements as well as stratagems and devices cannot defeat the statutory obligations to ensure a safe place of work. 201 In many respects, concentration upon what might be done under the Joint Venture Agreement is something of a distraction from the real question arising in these proceedings. It is clear, however, that the Management Committee had power to engage a safety officer or an occupational health and safety consultant to ensure that the provisions of the Occupational Health and Safety Act 1983 were being complied with by contractors and sub-contractors. Under the specifications document within the SRA contract, the consultant's obligations were, inter alia, to furnish all qualified and competent employees necessary to carry out and execute the services, to employ, engage or assign to the performance of the services the Key Personnel and sub-consultants nominated in the tender schedules and in accordance with the requirements of the contract or as otherwise agreed by the Authority's Representative. The Consultant was obliged to comply with all Acts of the Parliament of New South Wales and with the requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such Act. The specification documents also stated that, at all times during normal working hours when the services were in progress, the Consultant "shall cause the Key Personnel to be at the place of services, who are hereby authorised as the Consultant's agents to receive instructions and notices from the Authority's Representative or the Authority. The Consultant was further to maintain good order and discipline amongst its employees engaged in the services and were not to employ on the services anyone not skilled in the task assigned to him and were also to ensure that the Consultant's employees and sub-consultants comply with the Authority's safety policies as determined from time to time by the Authority's Representative and in accordance with the New South Wales Occupational Health and Safety Act 1983 and Regulations. 202 Under the contract with SRA, the duties and responsibilities of the Consultants were not divided: they were obligations of each of the participants in the Joint Venture and handled through the Management Committee. Under the Joint Venture Agreement, each participant empowered and directed the Management Committee to give all approvals and to make all decisions and determinations required or permitted to be given or made by the participants pursuant to the Agreement, including the supervision of the activities of the Joint Venture. In this way, the acts of the Management Committee were authorised by each participant no matter what was their particular area of expertise. In precisely the same way, any omission by the Management Committee was an omission by each of the participants under the Occupational Health and Safety Act 1983. That part of the Joint Venture Agreement was reflected in the way in which the services were proffered to SRA - with one point of authority and one point of contact for SRA and with that point of contract empowered to make binding decisions on behalf of the Joint Venture. In my view, each of the participants was liable for acts or omissions constituting breaches of the Occupational Health and Safety Act 1983 under contracts being administered by the Joint Venture in the Upgrades Programmes. That conclusion does not exclude a particular participant from being guilty of an aggravated offence because of particular circumstances relating to any breach. At this time, I am unable to make any such finding as the cases for the remaining participants remain part-heard and are yet to be concluded. 203 It is instructive to return to the Particulars of the charges to which the defendant Ove Arup has entered a plea of guilty. At 10 December 1995, and between 10 November 1995 and 4 December 1995, Ove Arup: failed to ensure that the charged gas supply line at KSU was adequately protected; failed to ensure that the gas supply line on the KSU was adequately identified; failed to ensure that the gas supply line on the KSU was adequately marked; failed to ensure that the KSU over which it had control to a degree was safe and without risk to health; failed to adequately supervise Abigroup and Josef & Sons in the performance of their duties to ensure that the KSU was safe and without risk to health; failed to adequately inspect the KSU or have in place a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risk to health; failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety; and, failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work method statement. In relation to all these matters, the defendant argues that it had a limited degree of control and, in fact, indirect control over the site in relation to these matters by being a member of the Management Committee. The plea therefore recognises that, as a member of the Management Committee, the defendant had these obligations and responsibilities. I have already indicated the considerable control available to the Management Committee to lay down safe systems of work to be followed by contractors and their sub-contractors at the Kogarah site. The defendant says that, alone, it had no standing to interfere with the operations of the Abigroup contract or the performance of other participants. That submission seriously underestimates the status of a participant in the Joint Venture (being individually a signatory to the contract) and as being one of four members of the Management Committee exercising substantial control over work safety at each of the sites including the Kogarah site. A direction given by the defendant to a contractor, for example, not to take a further step until the Management Committee had an opportunity to address a certain perceived risk to safety must have been seriously viewed by the contractor having regard to the overall project management role of the Joint Venture. The defendant's approach suggested that, because it was only part of the Management Committee and individually had no standing to interfere with work being performed by a contractor, somehow it was obliged to stand by and merely wait for matters to be drawn to the attention of the Management Committee and to address any safety risks at the site only at the level of the Management Committee. 204 It was, however, no part of the defendant's case that it had attempted to address the failures as particularised in the charges and had been unsuccessful because of an assertion by a contractor or sub-contractor that the defendant had no capacity as an individual member of the Joint Venture to give any such direction. Much of the evidence given by those connected with the Joint Venture was to the effect that the workings on the site were the responsibilities of the contractors, and in the project management role, the participants were disconnected and not expected to play any direct role. To that extent, there is something of a contradiction in the defendant's approach. 205 The better view is that, as a signatory to the contract, and as a member of the Joint Venture and therefore a member of the Management Committee, each of the participants, including the defendant, had obligations to take steps to ensure workplace safety at the site and to raise these matters with the Management Committee as a process ensuring safety at the site. That duty could not be delegated to anyone else such as Group One, nor could it be avoided by waiting for the Management Committee as a whole to act on some complaint or issue put before it by someone else. Indeed, the Joint Venture had no difficulty in the 1995 safety plan and the 1996 project instructions in laying down what matters had to be addressed by contractors and their sub-contractors. By adopting this approach, the Joint Venture was not drawn into ever increasing levels of supervision nor was it necessarily involved in day-to-day attendance at the site, literally at the shoulder of each contractor and sub-contractor, to ensure that the instructions were being carried out. When the overall picture is considered, there is something decidedly unreal about the defendant's submission that, at best, it was indirectly in control of the site. The participants chose to undertake this task by way of an unincorporated Joint Venture: one of the consequences of that approach was that each of the participants became liable for acts and omissions that led to risks to safety for those working on the site when the Joint Venture had a contractual obligation to lay down safety rules and to ensure compliance with the Occupational Health and Safety Act 1983. Any other view leads to unworkable lines of responsibility, vague and separate obligations as to safety and invites an organisational approach that may operate as a device to avoid responsibility under the Occupational Health and Safety Act 1983 and in a way that is not authorised by that Act. 206 The submissions for the prosecutor and the defendant dealt in some detail with the conviction of other parties arising from the explosion and fire at the Kogarah Upgrade and arising from charges very similarly framed to those brought against the defendant Ove Arup. In those cases, as in the present case, there was no contention other than that the offences represented serious breaches of the Act. Allowing a charged gas line to remain on a construction site without attending to the appropriate cut off point, bearing in mind the scope of demolition to be undertaken, and, the failure to continually mark and identify the location of that charged gas line during demolition work, has been found to be both foreseeable and relatively easily addressed so as to ensure safety at the site. At the site, as a result of the explosion and fire, two people were killed and a number were injured, some quite seriously. In dealing with this case, I adopt the approach that the fatalities and injuries inflicted are evidence confirming the seriousness of the offence. I accept the prosecutor's submission in this case that, although there were others also bearing a responsibility for the intervening acts, the risks that arose were wholly predictable and were not unusual for a building site. The defendant accepted that the acts and omissions particularised were an instigating cause of the risks which came to fruition on 4 December 1995 and had as their consequences, the injuries to non-employees on that date. That concession was made in circumstances where it was known that the gas line was charged, that it was not far below the surface and in the context of the intention to use heavy equipment in the demolition task in and around the area where the gas line was located. Having regard to the nature of the work, there was a clear risk (especially when identification of the location of the pipeline was removed) that the gas line could be breached causing a serious gas leak and the potential for serious injury. Therefore, the conclusion is readily reached that there were serious breaches of the Act by the defendant. 207 In relation to the concepts of a general and specific deterrence, they both have a role to play in the setting of an appropriate penalty in this case. While it may be accepted that the building and construction industry is a high risk industry, I accept the defendant's submission that this is not an appropriate case to make a general statement about the unacceptable level of risks in that industry and to impose upon the defendant a level of condign penalty. This case does, however, demonstrate the responsibility of all those who participate in industry, including the building and construction industry and at whatever level, of the need for diligence in ensuring the safety of those in the workplace. All participants in a workplace have a role to play to ensure and to promote safety: that objective cannot be simply left to others either because of their expertise or because they have a more "hands on" role. Specific deterrence also has significance because the defendant continues to be heavily involved in project management, although I take into account the defendant's previous good record, the steps it took in relation to safety procedures after the accident and the awakening of the defendant's appreciation of the importance of its role as a major project manager to play its part in ensuring workplace safety. 208 Of particular importance in considering subjective factors is the defendant's good record having operated a large scale business for a long period of time in industries which are inherently dangerous. That record speaks well of the defendant, especially in relation to its usual occupational health and safety standards, and there was considerable evidence as to the defendant's involvement in community and charity works as well as in education. That evidence speaks highly of the defendant as a good corporate citizen. These are matters of importance and are to be taken into account in mitigating the penalty. 209 There was some debate as to the value of the defendant's plea of guilty having regard to the fact that the plea was entered after the case had occupied some eight hearing days. A further three days were spent in relation to evidence and submissions on the plea. In those circumstances, the prosecutor urged that there was little recognition by the defendant of its culpability and no sign of contrition: the defendant had agreed to facts relating to the accident but had not been forthcoming as to the nature of its role as part of the Joint Venture. The defendant's position was that there was no lack of contrition - it had commenced discussions with the prosecutor in relation to entering a plea after hearing the evidence of the superintendent and having formed the view that the superintendent had misunderstood the nature of the his role and had not been equipped to properly undertake that role. 210 There is substance in both submissions, but it is also true that the defendant engaged, as it was entitled to, in a number of proceedings raising technical objections and that considerable Court time had been spent in the calling of evidence in the prosecution case before the plea was entered. An adjournment of a considerable period had been granted in order to permit the defendant to pursue remedies in the Court of Appeal and, when the matter resumed, although pleas were entered, the parties were unable to immediately utilise days set aside for the hearing of the contested proceedings and were only able to utilise a number of days towards the end of the period set aside to conclude the hearing of the contested proceedings. Those circumstances inevitably led to a number of Court days being unable to be utilised in the hearing of any other substantial matter. It is to be accepted, however, that the nature of the Joint Venture and the functions performed by the participants were of some complexity and the Court may have been spared the task of addressing those issues in proceedings on guilt as well as on sentence. In all of the circumstances, while perhaps erring on the side of generosity, I will allow a discount of 10 per cent for the utilitarian value of the plea entered by the defendant in these two matters. 211 I accept the submissions that, having regard to the participation of others in the period leading up to the explosion and fire, the principle of parity or at least consistency of penalties in related offences has application. I also accept the defendant's submission that the principle of totality has application in light of the finding of the Full Bench in the Abigroup case and the fact that the Particulars are almost identical in relation to the two periods and are also very similar to the Particulars of the breaches in both Abigroup and Josef & Sons. Some care needs to be exercised in the application of the principle of parity or consistency, firstly, because in both Abigroup and Josef & Sons Constructions there were no pleas of guilty entered and, further, there were a number of subjective factors to be considered in Abigroup which did not appear to be present in the relation to Josef & Sons. In Abigroup (the breaches concerning the events of 10 November 1995) a primary penalty of $600,000 was imposed reduced to $500,000 on the application of the principle of totality and divided into two fines of $250,000 in relation to offences under ss 15 and 16 of the 1983 Act. For the offences covering the period 10 November 1995 and 4 December 1995, a penalty of $700,000 was initially imposed but reduced to $600,000 on the application of the principle of totality resulting in two fines of $300,000 for breaches of ss 15 & 16 of the 1983 Act. On appeal, the fines of $250,000 relating to the 10 November 1995 breaches were reduced to $175,000, and the fines imposed in relation to the period 10 November 1995 and 4 December 1995 were reduced from $300,000 to $225,000 each. In Josef & Sons, the fine for the initial penalty imposed for the charge concerning 10 November 1995 was $300,000, while for the period between 10 November 1995 and 4 December 1995, a primary penalty of $365,000 was imposed. After applying the principle of totality, the penalty in relation to 10 November 1995 matter was reduced to $175,000, and for the period between 10 November 1995 and 4 December 1995 the penalty was reduced to $230,000. 212 It is of some importance that in the Josef & Sons matter the prosecutor urged that account be taken of the fact that Abigroup was the head contractor on site and had greater responsibility for the whole condition of the site compared to Josef & Sons, but also submitted that the fact had to be taken in account that the defendant was doing the actual work requiring the disconnection of the gas supply that led to the gas line being breached on 4 December 1995 by work it was performing that day. It was suggested that, in those circumstances, the culpability of Josef & Sons was greater than that of Abigroup. Schmidt J accepted that, overall, Josef & Sons had greater responsibility for the events than did Abigroup, having itself taken dangerous steps and failed to take necessary steps to ensure safety at the site rather than having "merely supervised" the work in question as a head contractor. 213 Having accepted that the defendant in these proceedings was an equal participant in the unincorporated Joint Venture and fully participated with each of the other participants in that Joint Venture, I am unable to accept the defendant's submission that there should be a penalty determined for the Joint Venture as a single entity that should then be divided according to the relative culpability of each of the participants. As earlier pointed out the case against the other participants has not concluded but, in any event, it is inappropriate to treat each of the participants as other than individually culpable for their participation in the failure to provide a safe system of work at the Kogarah Upgrade site. In both the Abigroup prosecution and the Josef & Sons prosecution it was held that the offence concerning events on 10 November 1995 was the least serious offence and that the offence covering the period 10 November 1995 to 4 December 1995 was the next most serious offence, with the most serious offence occurring on the day of the accident. The defendant pointed out that it was not charged in relation to the day of the explosion. In light of the findings in the other prosecutions, it is proper that the first offence in time be treated as the least serious and that the second offence be treated as the more serious offence. I propose to adopt that course in relation to the present matter. 214 I have difficulty with the general proposition as suggested by the defendant that a head contractor with overall responsibility for a site would be less culpable than the sub-contractor actually involved in performing the task that led to the risk to safety at the workplace. Situations may well arise where the culpability of both the head contractor and the sub-contractor would be approximately equal, or it may transpire on the facts that directions given by the head contractor may lead to a finding that it was more culpable than the sub-contractor performing the work. Of importance in the matters concerning Abigroup and Josef & Sons was that, on the day of the accident, Abigroup was not present on site while Josef & Sons was present and performed work on a day when work was normally not to be performed. I have concluded that the defendant Ove Arup as a member of the Joint Venture and an equal participant in that unincorporated body had by the terms of the contract with the SRA, considerable control over the site. By its participation in the Joint Venture, the defendant accepted responsibility for ensuring compliance with the Occupational Health and Safety Act 1983 and had the capacity to give directions to contractors and sub-contractors as it did under its safety and site procedures. Although it was not present daily at the site, nor was it involved physically in the performance of the work of demolishing the shops and capping and disconnecting the gas line, the defendant's overall responsibility for safety required it to take steps by way of surveillance and instruction to contractors and sub-contractors concerning the process for locating services and disconnecting them and rendering them safe prior to undertaking demolition. In my view, this responsibility places the defendant's culpability as somewhat less than Abigroup and Josef & Sons but I am unable to find, as urged by the defendant, that its culpability was very much less than either Abigroup or Josef & Sons. I would set the primary penalty therefore for 10 the November 1995 offence at $250,000, and the penalty for the second offence covering the period from 10 November 1995 to 4 December 1995 at $300,000. 215 The principle of totality is then to be applied to these penalties. Both offences arise under s 17 of the Act and the Particulars in each case are almost identical. The first charge covers the disconnection of the gas and the inadequacies of severing the line at a point which left it considerably within the demolition site. The period of the second offence covers the substantial development of the site, steps taken to identify the location of the pipe by fairly rudimentary means, the removal of that identification in contemplation of the bringing onto the site of heavy machinery to complete the task of demolition. Those matters have to be taken into account. Adopting that approach, I regard the total criminality of the offence to be adequately addressed by a penalty of $300,000 to be divided between the two periods so that the first offence in time carries a final penalty of $125,000, while the second offence in time carries a penalty of $175,000. ORDERS 216 A. Matter No IRC 5482 of 1999 (i) the defendant is found guilty of a breach of s 17(1)(a) of the Occupational Health and Safety Act 1983 as particularised in Matter No IRC 5482 of 1999 to which it has pleaded guilty; (ii) the defendant is fined the sum of $125,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed, or in absence of agreement as ordered by the Court. B. Matter No IRC 5483 of 1999 (i) the defendant is found guilty of a breach of s 17(1)(a) of the Occupational Health and Safety Act 1983 as particularised in Matter No IRC 5483 of 1999 to which it has pleaded guilty; (ii) the defendant is fined the sum of $175,000, with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed, or in absence of agreement as ordered by the Court. AGREED STATEMENT OF FACTS 1. Inspector Paul Anthony Mansell of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Ove Arup Pty Limited, Ove Arup Consult Pty Limited and Arup Partner Pty Limited. 2. Inspector Kathleen Maltby of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983. 3. Abigroup Contractors Pty Limited [ACN 000 201 516] (Abigroup) is a corporation duly incorporated in New South Wales with its registered offices at First Floor, 25-29 Bridge Street, Pymble NSW 2073. 4. The State Rail Authority of New South Wales (SRA) is a statutory authority constituted pursuant to Section 4 of the Transport Administration Act, 1988 (NSW). 5. Josef & Sons Contracting Pty Limited (In Liquidation)[ACN 002 844 537](Josef & Sons Contracting) is a corporation duly incorporated in New South Wales with its registered office at 118 Palm Avenue, Leeton in the State of New South Wales. 6. Josef & Sons Pty Limited [ACN 001 283 601](Josef & Sons) is a corporation duly incorporated in New South Wales with its registered office at 11 Carlisle Street, Bondi NSW 2026. 7. AGL Gas Networks Limited [ACN 003 004 322](AGL) is a corporation duly incorporated in New South Wales with it registered office at AGL Centre, 111 Pacific Highway, North Sydney NSW 2060. 8. The SRA was the relevant Authority which owned the Kogarah Railway Station and surrounding areas, including shops, 3, 5, 7 and 9 Railway Parade, Kogarah. Prior to demolition in 1995, these shops operated as or with the trading names: (a) Shop 3, Railway Fruit Market; (b) Shop 5, Railway Fruit Market; (c) Shop 7 - Kogarah Seafood; (d) Shop 9 - operated as a Toy/Gift Shop 9. (a) The SRA required the Kogarah Railway Station and surrounding areas, including shops 3,5,7 and 9 Railway Parade Kogarah to be upgraded. (b) The project was called the Kogarah Station Upgrading (KSU), which included demolition of the concrete steps at the entrance to the Station on the eastern side; the uplifting and removal of pavers in the mall area outside Kogarah Town Centre; the demolition of retail shops 3, 5, 7 and 9 Railway Parade, Kogarah, and construction within the KSU. 10. (a) For the purpose of tendering to the SRA for the right to provide services for upgrades to various metropolitan railway stations, a group of companies formed a joint venture, the Station Upgrade Joint Venture (SUJV). (b) The SUJV was constituted by the companies: (i) TMG International Pty Limited [ACN 056 748 448](TMG) is a corporation duly incorporated in New South Wales with its registered offices at Level 3, 226 Clarence Street, Sydney NSW 2000;' (ii) Edwards Madigan Torzillo Briggs Pty Limited (EMTB)[ACN 065 441 223] is a corporation duly incorporated in New South Wales with its registered offices at Level 2, 75 Elizabeth Street, Sydney NSW 2000; (iii) Group One Interiors Pty Limited [ACN 050 045 620] (Group One) was a corporation duly incorporated in New South Wales with its registered offices at 40 Cabramatta Road, Mosman NSW 2088 but is currently in members voluntary liquidation; and (iv) Three further corporations, Arup Partner Pty Limited [ACN 002 536 647], Ove Arup Consult Pty Limited [ACN 002 536 503] and Ove Arup Pty Limited [ACN 000 966 165] being companies duly incorporated in New South Wales with their registered offices at Level 6, 77 Castlereagh Street, Sydney NSW 2000. (c) Arup Partners Pty Limited, Ove Arup Pty Limited and Ove Arup Consult Pty Limited traded pursuant to the business name Ove Arup & Partners. (d) The separate participants of the SUJV on 20 June 1994 entered into an agreement entitled Stations Upgrade Joint Venture Agreement. ... (g) The SUJV in furtherance of the joint venture operated and traded under the name of Capital Works Management (CWM) which was registered as a Business Name on 15 December 1994. 11. (a) On 29 July 1994 the SRA entered into a contract with the participants of the SUJV including the defendant being contract No. 93336 (Specifiction No. C93/0819) (b) On 5 August 1994 the SRA entered into a contract with Denton Corker Marshall Pty Ltd (DCM), being contract No. 94028 (Specification No. C93/0803 for the "Design and Documentation of Easy Access and Upgrading Works at Kogarah Station"). 12. (a) Abigroup contract with the SRA to carry out work at the KSU. (b) The contract was entered into on 18 October 1995. 13. (a) On or about 8 November 1995 Abigroup entered into a contract with Josef & Sons Contracting to perform work including demolition work. (b) The contract to perform this work was reached by Abigroup's acceptance of Josef & Sons Contracting Pty Limited's revised offer contained in their letter of 8 November 1995 to Abigroup. ... 15. Josef & Sons Pty Ltd was the owner of certain equipment including a 7-8 tonne Daewoo excavator. This excavator was utilised at the KSU. 16. Josef & Sons Pty Limited leased, hired or otherwise made available to Josef & Sons Contracting Pty Limited equipment used in the demolition work to be carried out under the contract between Abigroup and Josef & Sons Contracting, including but not limited to the 7-8 tonne Daewoo excavator. 17. Robert Josef and Susan Josef, both of 11 Carlisle Street, Bondi were at all material times the Directors of: (a) Josef & Sons Contracting Pty Limited; (b) Josef & Sons Pty Limited. 18. AGL Gas Networks Limited (AGL): (a) carried on business as a supplier of gas; (b) was the owner of gas supply lines in Railway Parade, Kogarah: (c) was the owner of the gas within the said gas supply lines; (d) had the care, control and management of the said gas supply lines and of the supply of gas within the lines; 19. (a) In and around the Kogarah station area gas was reticulated by means of a yellow nylon tubing, known as "Goldline", "Rilsan" or "Rilsanol". (b) Prior to the use of Goldline, gas was reticulated through galvanised metal pipes. (c) The Goldline in the relevant vicinity of the KSU was inserted in the prior galvanised metal reticulation pipes. (d) Goldline "elbow joints" were utilised to alter the direction of the gas pipe. Where such elbow joints were used, they were sealed to the adjacent section of Goldline with glue. In order to insert these elbow joints, it was necessary to cut and remove a section of the existing galvanised metal pipe. 20. (a) Prior to the commencement of work at the KSU, a gas supply pipe line originated on the eastern side of Railway Parade. (b) The pipeline crossed the roadway in a westerly direction to a point at the kerb directly outside the Family Amusement Zone (FAZ) at No 13 Railway Parade. (c) The pipeline then turned at 90 degrees to the north made a right angle turn and continued along the building alignment of Railway Parade in a northerly direction for approximately 15 metres. (d) The pipeline then turned at 90 degrees to the west, under the footpath, to enter 7 Railway Parade, Kogarah which were commercial premises known as "Kogarah Seafood". (e) Located on the footpath approximately 30cm from the building alignment was a metal cap marked "GAS", which was above the gas line leading into Kogarah Seafood. (f) This gas supply line was 32mm in diameter and had an approximate operating pressure of 210kPA. 21. At all material times the SRA employed the following people: (a) Raymond Furfaro as the Programme Manager Station Upgrading. (b) Eddie Blackwell as the Project Manager - Capital Development. (c) Ronald Robert John Turnbull as Senior Supervisor. (d) Glen Robert Smithers. Bill Yazbeck as the Station Master of the Kogarah Railway Station ... 23. At all material times Abigroup Contractors Pty Ltd employed/engaged: (a) Peter Deane as General Manager Abigroup; (b) Paul Cejka as Construction Manager Abigroup; (c) Maurice Bolger as Project Manager for the KSU; (d) Luis Bustamante as Foreman for the KSU. (e) Paul Poidevin as Construction Supervisor Abigroup (f) Barry Jessop as a labourer for Abigroup. (g) Paul Warren as a labourer for Abigroup. 24. At all material times Josef & Sons Contracting Pty Limited employed/engaged: (a) Daniel Josef as a Project Manager; (b) Chris Stoeski as Foreman; (c) Bruno Brdaric as a labourer; (d) Hasan Alagic as a labourer; (e) Bernath Adler as a supervisor; (f) Gorco Trajcevski as a labourer. ... 27. At all material times Robert Campbell was employed/engaged by Josef & Sons Contracting Pty Limited as an operator to drive plant owned by Josef & Sons Pty Limited at the KSU. 28. The premises to the south of 3, 5, 7 and 9 Railway Parade on the western side of Railway Parade and the border of the railway line were as follows: (a) No 11 Railway Parade - Mei Yee Fashions Ladies Dress Shop; (b) No 13 Railway Parade - Family Amusement Zone (FAZ) being an electronic amusement centre and games parlour; (c) No 15 Railway Parade - St George Tobacconist Shop; (d) No 17 Railway Parade - Oasis Seafood Cafe. 29. About 30 October or 1 November 1995, Abigroup was granted access to the KSU by the SRA. 30. About the first week in November 1995 Luis Bustamante and Robert Josef inspected the KSU and had a discussion relating to the disconnection of services including gas, electricity and water. 31. On or about 8 November 1995, a service order call was placed to AGL for the disconnection of the charged gas supply to 3 and 7 Railway Parade, Kogarah. 32. (a) On or about 10 November 1995 John Princi, who was employed by AGL, attended the KSU and inspected No.3 and No.7 Railway Parade. (b) Luis Bustamante was present at the KSU when John Princi attended to disconnect the gas supply line. (c) Princi disconnected the gas supply attached to No 7 Railway Parade, Kogarah by cutting and fitting a cap to the Goldline. (d) Princi was unable to find a gas supply line to number 3 Railway Parade, Kogarah. (e) During Princi's attendance at the KSU a conversation occurred with Luis Bustamante regarding the disconnection of the gas pipe. 33. The charged gas supply line was cut and capped outside the alignment of the front of shop 7 Railway Parade, Kogarah. 34. (a) An elbow joint was located approximately 1.5 metres from the cut and capped end. (b) The next elbow joint to the south was approximately 15 metres away, under the footpath directly in front of FAZ. The Goldline between these two elbow joints was housed inside the galvanised metal pipe. 35. (a) After 10 November 1995 and before 4 December 1995 shops 3, 5, 7 and 9 were demolished by Josef & Sons Contracting Pty Ltd, partially by way of mechanical felling using an excavator. (b) Josef & Sons Contracting Pty Ltd contracted Reid's Excavations to perform demolition work at the KSU. (c) Mr Alfred Begg was an employee of Reid's Excavations and operated a 30 tonne excavator in demolition at the KSU. (d) Mr Begg worked at the KSU between 21 November and 24 November 1995. 36. The Goldline gas supply line became exposed between 21 and 25 November 1995. 37. Bruno Brdaric an employee of Josef & Sons Contracting Pty Ltd, observed the exposed Goldline pipe on or about 29 November 1995 within the KSU. 38. ... (d) Photographs were taken by Robert Josef on 24 November 1995 marked as 'M', 'O' and 'P', showing the gas pipe marked with the star picket and coloured bunting. (e) No signage was placed near the exposed gas supply line. ... 40. On 30 November 1995, Abigroup (by way of facsimile from Maurice Bolger to Robert Josef) requested Josef & Sons Contracting to accelerate their work to ensure completion by the programme date. 41. (a) On Saturday 2 December 1995, a 30 tonne excavator was used to partially complete the demolition of the concrete steps, located on the eastern side of the KSU and approximately 18 metres north of Mei Yee Fashions. (b) Upon completion of as much of the demolition of the concrete steps as the 30 tonne excavator was able to undertake, it was removed. 42. (a) Thereafter, an orange 7-8 tonne "Daewoo" excavator, which was owned and supplied by Josef & Sons Pty Limited, was brought on to the eastern side of the KSU by Josef & Sons Contracting Pty Ltd. (b) The 7-8 tonne Daewoo excavator was used to perform work which could not be done by the larger 30 tonne excavator. That work included removal of rubble, additional demolition and the creation of a batter. (c) The work by the Daewoo excavator was not completed on 2 December 1995. (d) Abigroup supervisors were on site at relevant times on Saturday, 2 December 1995. 43. Work did not occur at the KSU on Sunday, 3 December 1995. 44. (a) Monday 4 December 1995 was the scheduled picnic day for employees of the SRA and the Building Trades. (b) Employees of the SRA, including the SRA safety officers, were not present at the KSU on 4 December 1995. (c) Abigroup gave permission to Josef & Sons Contracting to attend and enter the KSU on 4 December 1995. (d) Neither Abigroup nor Josephs & Sons Contracting [sic] advised the Superintendent that work was to be undertaken on 4 December 1995. 45. (a) On 4 December 1995 at approximately 6.30 a.m., Robert Campbell, Bruno Brdaric, Hasan Alagic, Chris Stoeski and Gorco Trajcevski attended the KSU and performed work on behalf of Josef & Sons Contracting Pty Ltd. (b) Work using an excavator was performed on 4 December 1995 on behalf of Josef & Sons Contracting Pty Ltd. 46. During the morning of 4 December 1995, Bernath Adler, Daniel Josef and Robert Josef attended the KSU to perform work. 47. After the demolition of shop numbers 3, 5, 7 and 9, the eastern side of the KSU had a profile of two horizontal levels, broken by a vertical dirt wall approximately 1-1/2 metres high. The vertical dirt wall extended from the northern end of the side (near the area where the stairs had been demolished) in a southerly direction towards Mei Yee Fashions . 48. (a) When the rubble had been removed on 4 December 1995, Chris Stoeski directed Robert Campbell to cut a batter from the point where the steps had been located in a north-south direction and perpendicular to Mei Yee Fashions, following the line of the vertical dirt wall. (b) The batter was cut by using the bucket of the excavator to loosen dirt on the high side of the vertical dirt wall. The loosened dirt was then pushed towards the low side to form a 45 degree bank between the two horizontal levels. The excavator was located on the high side of the batter and moved towards Mei Yee Fashions. (c) The width of the high side of the batter became narrower in the direction of Mei Yee Fashions. (d) At a point approximately half way between Mei Yee Fashions and the demolished steps, the width of the high side of the batter became too narrow to allow the excavator to move forward on its tracks. This point was adjacent to a lamp post situated within the cyclone fencing on the eastern perimeter of the site. (e) The batter south of the lamp post was formed through extension of the excavator bucket. 49. (a) Whilst cutting the batter between 12.30 p.m. and 1.30 p.m. on 4 December 1995 Robert Campbell operated the excavator in an area where the charged gas supply line was located. (b) The bucket of the excavator came into contact with the charged gas supply line. (c) The contact between the bucket and the charged gas supply line caused the elbow joint located outside FAZ to become detached from the line. 50. Between 1.00 p.m. and 2.00 p.m. a strong smell of gas was noticed by John Hatzikiriakos, the proprietor of Oasis Seafood, and Wally Afiouni, the proprietor of St George Tobacconist . 51. (a) John Hatzikiriakos and Wally Afiouni separately approached workers the KSU and spoke to them about the strong smell of gas. As a result of their enquiry Bruno Brdaric and Chris Stoeski carried out an inspection of the capped end of the gas supply line located within the KSU. Unable to locate any gas leaking from the gas supply line within the KSU, they attended Oasis Seafood with John Hatzikiriakos. (b) When outside FAZ they saw and heard gas escaping through a crack in the pavement. 52. Wally Afiouni made a "OOO" phone call at approximately 1.45 p.m. and was put through to the Police. 53. Chris Stoeski directed Bruno Brdaric to put up a mobile metal barricade in the area where the gas was escaping through a crack in the pavement outside FAZ. 54. At approximately 1.55 p.m. Bruno Brdaric placed the mobile scaffolding in position and attempted to direct pedestrians away from the area. 55. (a) At approximately 1.55 p.m. Constable Adams and Constable Stephens attended in a Police motor vehicle from Kogarah Police Station. (b) Whilst stationary at the lights at the corner of Railway Parade and Montgomery Street, they were able to smell gas. 56. At approximately 1.57pm the Police Officers inspected a crack in the pavement outside FAZ where gas was escaping. 57. The Police Officers called for further Police to attend and attempted to direct people away from the area. 58. After it was determined that gas was leaking, Chris Stoeski, Bruno Brdaric, Gorco Trajcevski and Robert Campbell moved the excavator from the KSU onto the open mall area towards the northern end of Railway Parade. 59. (a) At approximately 1.55 p.m. Christopher Shuetrim, an AGL employee at the Communications Centre in Alexandria received a telephone call from a male who identified himself to be from Josef & Sons Contracting Pty Limited. ... (b) This person reported a gas leak at Railway Parade, Kogarah. (c) Christopher Shuetrim obtained the man's mobile telephone number. (d) He then despatched Liugino Galasso and Damien Lindsay, an AGL mobile maintenance crew, to Railway Parade, Kogarah. 60. At approximately 2.00 p.m. a gas explosion occurred. 61. The explosion blew out the front of FAZ causing damage to a number of shops in the immediate vicinity. 62. As a result of the explosion, Mina Bakhoum and Gregory Maybury sustained fatal injuries. At least 16 other persons sustained burn injuries. 63. (a) At approximately 2.02 pm, Christopher Shuetrim telephoned the male from Josef & Sons Contracting Pty Limited to inform him that an AGL maintenance crew has [sic] been despatched to Railway Parade, Kogarah. (b) The male from Josef & Sons Contracting Pty Ltd informed him that an explosion had occurred. 64. (a) At approximately 2.05 pm, Christopher Shuetrim despatched Charles Bigrigg, an AGL team Leader, to Railway Parade, Kogarah. (b) Mr Charles Bigrigg was despatched from the Alexandria office. (c) Mr Bigrigg did not take maps or plans of the area with him when he departed from the Alexandria office. 65. At approximately 2.20 pm, Liugino Galasso and Damien Lindsay, the AGL maintenance crew, arrived at Railway Parade, Kogarah. They observed a fire burning outside FAZ. 66. Member of the New South Wales Police were present at Railway Parade, Kogarah. 67. Members of the New South Wales Fire Brigade were also present, misting the flames. 68. (a) Liugino Galasso and Damien Lindsay then put on fire retardant overalls and proceeded towards the fire. (b) They used dry chemical extinguishers in an effort to put out the fire. (c) The fire was put out. (d) The fire immediately re-ignited. 69. (a) Liugino Galasso and Damien Lindsay then inspected the KSU to the south of the lamp post within the cyclone fencing. (b) They observed approximately one metre of Goldline joined by a 90 degree elbow joint and then a further one metre of Goldline with a capped end. This section of Goldline protruded from the galvanised metal pipe. (c) They observed kinks on the end of the Goldline, approximately 25 millimetres from the elbow, on the long side of the Goldline. (d) In order to establish whether the gas was leaking from that point in the Goldline, they squeezed the pipe. This did not prevent the flow of gas to the area outside FAZ. (e) The crew pulled on the Goldline and it was easily pulled out of the galvanised metal pipe. (f) Liugino Galasso and Damien Lindsay then left the KSU. 70. Liugino Galasso walked up Railway Parede in an attempt to locate a mains valve, but could not find one. 71. Liugino Galasso and Damien Lindsay then dug a hole near FAZ, using a bar and shovel, in an attempt to locate the service line. They did not locate the service line. 72. (a) At approximately 2.30 pm, Charles Bigrigg, the Team Leader, arrived. (b) He instructed Damien Lindsay to proceed along Regent Street in an attempt to identify the position of the mains valve. (c) Charles Bigrigg and Liugino Galasso proceeded towards the corner of Montgomery and Grace Streets and located a main valve. This was turned off. (d) Three further mains were turned off. (e) The flow of gas continued despite the mains valves being turned off. 73. The isolation of the area from the continuous supply of gas by the operation of valves having failed, the AGL gangers determined to manually isolate the supply . 74. (a) Between approximately 2.30 pm and 3.00 pm Charles Bigrigg telephoned the AGL Communications Centre and informed them that he and the AGL crew had not been able to locate the necessary valves to isolate the gas supply to FAZ. (b) He informed the Communications Centre that he did not have any maps of the area and requested that maps be supplied. 75. At approximately 3.00 pm, Gary Charlewood of AGL was despatched from Alexandria to Railway Parade, Kogarah with maps of the area and a valve key . 76. (a) Between approximately 2.30 pm and 3.30 pm, a second AGL maintenance crew arrived. (b) Roy Alvero, an AGL employee from the second maintenance crew, noticed bubbling on the west side of Railway Parade, near the Soul Patterson Chemist. (c) The bubbling was coming from underneath a Police motor vehicle that was parked on Railway Parade. (d) The keys to the Police motor vehicle could not be located so the window to the vehicle was smashed and the car manually moved away from the area. 77. AGL employees then commenced digging another hole using a jack hammer. They were unsuccessful in locating the gas supply line. 78. At approximately 4.00 pm on 4 December 1995, a second explosion occurred inside FAZ. 79. A number of Fire Brigade officers were inside FAZ when the second explosion occurred. 80. Approximately five fire brigade officers sustained burn injuries as a result of this second explosion. 81. (a) AGL employees noticed gas bubbling from another crack on the western side of Railway Parade. (b) They dug another hole and located sand and then the Goldline. (c) They put squeezers on the Goldline and crimped it. (d) The crimping of the gas supply line stopped the flow of gas. 82. The failures in respect of the two charges to which a plea of guilty has now been entered were an instigating cause of the risk which came to fruition on 4 December 1995 and had, as their consequences, the injuries to non-employees on that day. 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.