St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39

Industrial Court of New South Wales

CITATION: St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39

APPELLANT: St Hilliers Contracting Pty Ltd PARTIES: RESPONDENT: Workcover Authority of NSW

FILE NUMBER(S): IRC 842 of 2006

CORAM: Wright J President; Walton J Vice-President; Boland J

CATCHWORDS: Appeal - occupational health and safety - application for leave to appeal and appeal - leave to appeal refused in relation to liability - magistrate correctly identified risk and relevant failures - leave to appeal granted in relation to availability of statutory defences - magistrate did not give proper consideration to availability of defences - availability of defence considered without recourse to a retrial - s28(a) - act of cutting fence ties not reasonably foreseeable - was not reasonably practicable for appellant to have taken further actions - defence under s28(a) available in respect of first particularised offence - was reasonably practicable for St Hilliers to have done more in respect of the failure to provide proper information and warnings to Mr Openshaw - defence under s28(a) not available for second particularised offence - s28(b) - commission of the offence identified by reference to charges brought against person - causes are the caustive facts contained in the meaning of the commission of the offence - impracticable - consideration of surrounding circumstances in the particular case - whether feasible or practical to have taken further action - imposes higher standard than reasonably practicable - causes of commission of the offence were within control of St Hilliers - defence under s28(b) in respect of failure to provide proper information and warnings not available - appeal allowed - conviction of the defendant with respect to charge (a)(ii) confirmed - matter listed for directions as to sentencing