Industrial Court of New South Wales CITATION: YSF Pty Ltd and another v Inspector Wilkie [2008] NSWIRComm 76 APPELLANTS: YSF Pty Ltd PARTIES: Allan Murphy RESPONDENT: Inspector Robert Wilkie FILE NUMBER(S): IRC 1519 of 2007 CORAM: Boland J President; Staff J; Backman J Appeal - Application for leave to appeal - Occupational Health and Safety - Appeal from Chief Industrial Magistrate - Penalties imposed for breaches of s 8(1) and s 86(1)(b) of the Occupational Health and Safety Act 2000 - Convictions and penalties imposed by the CIM in respect of the charges brought pursuant to s 86(1)(b) of the Act quashed - Whether penalties in respect of s 8(1) offences were manifestly excessive - No issue of principle - conventional approach to sentencing by CIM - Penalties imposed in respect of s 8(1) offences were appropriate for the circumstances - Leave to appeal in respect of s 8(1) offences refused - Appeal in respect of s 8(1) offences dismissed CATCHWORDS: Occupational Health and Safety - Appeal - Application for leave to appeal - Appeal from Chief Industrial Magistrate - Penalties imposed for breaches of s 8(1) and s 86(1)(b) of the Occupational Health and Safety Act 2000 - Convictions and penalties imposed by the CIM in respect of the charges brought pursuant to s 86(1)(b) of the Act quashed - Whether penalties in respect of s 8(1) offences were manifestly excessive - No issue of principle - conventional approach to sentencing by CIM - Penalties imposed in respect of s 8(1) offences were appropriate for the circumstances - Leave to appeal in respect of s 8(1) offences refused - Appeal in respect of s 8(1) offences dismissed Industrial Relations Act 1996 s 197 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 ss 8(1), 86, 86(1)(b), 26 Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 CASES CITED: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116 HEARING DATES: 25 March 2008 DATE OF JUDGMENT: 11 April 2008 APPELLANTS: Mr A Rogers of counsel Solicitor: Mr R Crampton Carmody Crampton LEGAL REPRESENTATIVES: RESPONDENTS: Mr D O'Neil of counsel Solicitor: Ms P Blackmore WorkCover JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, PRESIDENT STAFF J BACKMAN J Friday 11 April 2008 Matter No IRC 1519 of 2007 YSF PTY LTD AND ANOTHER v INSPECTOR ROBERT WILKIE Application by YSF Pty Ltd and another for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 16 August 2007 in matter nos CIM 20367310/06/2, 20367328/06/2, 20367336/06/2, 20367352/06, 20367379/06, and 20367387/06/2 JUDGMENT OF THE COURT [2008] NSWIRComm 76 1 YSF Pty Ltd ("the first appellant") and Allan Murphy ("the second appellant") seek leave to appeal and, if leave is granted, to appeal the decision of the Chief Industrial Magistrate ("CIM") given on 16 August 2007 in which his Honour imposed fines on both appellants for two breaches each of s 8(1) and one breach each of s 86(1)(b) of the Occupational Health and Safety Act 2000. 2 At the commencement of the hearing on appeal, Mr D O'Neil of counsel, who appeared for the respondent, advised the Court that on the basis of information received by the prosecutor regarding notification by the appellants of the incident giving rise to the prosecutions, the prosecutor wished to pursue a course that would result in the prosecutions brought pursuant to s 86(1)(b) of the Act being withdrawn. Section 86(1)(b) provides that an occupier of a place of work must, as soon as practicable, but not later than seven days after becoming aware of an incident, give notice of the incident to the WorkCover Authority of New South Wales. 3 After discussion between the Full Bench and counsel for the parties regarding the appropriateness or correctness of the course proposed by the respondent prosecutor, Mr A Rogers of counsel, who appeared for the appellants, indicated he would seek leave to file a further amended notice of appeal. As it happened, some errors occurred in the further amended notice of appeal and it became necessary for the appellant to file a second further amended application for leave to appeal and appeal. Leave is granted in respect of the second further amended application. 4 In the second further amended application the appellants sought that leave to appeal be granted and the convictions and penalties imposed by the CIM in respect of the charges brought pursuant to s 86(1)(b) of the Act be quashed and that the parties bear their own costs before the Magistrate and their own costs on appeal. 5 In the circumstances, we propose to grant leave to appeal in respect of this aspect of the appeal and to uphold the appeal. We further propose to quash the convictions and penalties imposed by his Honour in respect of the s 86 matters. We note that the parties agreed that there would be no order for costs in respect of this aspect of the appeal. 6 We turn to consider the balance of the appeal and observe, at the outset, leave to appeal is required in the case of an appeal under s 197 of the Industrial Relations Act 1996 brought from a decision of an industrial magistrate: see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246. Background 7 The first appellant was charged that it failed on 17 November 2004, to ensure the health, safety and welfare at work of all its employees and in particular Riley White. The first charge brought pursuant to s 8(1) was that the first appellant failed to undertake a risk assessment in relation to the task of bagging, stacking and moving product; failed to establish a safe system of work in relation to bagging, stacking and moving product; failed to ensure that workers did not work too close to the stacked products; failed to instruct, inform and train workers in relation to a safe system of bagging, stacking and moving product; failed to appropriately supervise workers in the task of bagging, stacking and moving product; and failed to ensure that pallet stacks were safe. 8 The second breach of s 8(1) of the Act occurred on 31 March 2006 when the first appellant was charged with failing to ensure the health, safety and welfare at work of all its employees, placing at risk any employees who were near pallets of produce stacked four pallets high. Particulars were provided in respect of this charge. 9 The second appellant who is a director of the first appellant was charged with the same breaches of s 8(1) by virtue of s 26 of the Act. 10 The penalties imposed by his Honour were as follows: In respect of the first appellant: (i) a fine of $27,200 for the first breach of s 8(1) of the Act; (ii) a fine of $40,800 for the second breach of s 8(1) of the Act. In respect of the second appellant: (i) a fine of $1,700 for the first breach of s 8(1) of the Act; (ii) a fine of $2,380 for the second breach of s 8(1) of the Act. The Appeal 11 The grounds for leave to appeal were stated as follows: (a) regard to all relevant matters in determining penalty is a matter of grave importance; (b) the setting of appropriate penalty is a matter of grave importance. 12 The grounds of appeal were as follows: (i) the CIM did not have regard to all relevant matters in determining penalty; (ii) the CIM applied penalties more severe than appropriate for the circumstances; (iii) such further or other grounds as the Court considers appropriate. 13 In essence, the appeal went forward as an appeal against the severity of the penalties imposed by the CIM, although Mr Rogers also raised issues as to the factors to be taken into account in sentencing by an industrial magistrate. Such penalties were imposed in circumstances where the first appellant had two prior convictions under the Occupational Health & Safety Act 1983. The maximum penalty in respect of the charges against the first appellant was, therefore, $825,000. 14 In relation to the second defendant, the maximum penalty under the legislation is $55,000 where the defendant has no prior convictions. Although it was contended that the CIM did not have regard to all relevant matters in determining penalty, in our view the CIM adopted an orthodox approach in determining penalty, taking into account all relevant factors. 15 We consider that leave to appeal should not be granted in this matter for a number of reasons. First, the appeal is, in essence, restricted to the question of severity. Ordinarily, and in the absence of other considerations, such an appeal would not attract leave: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at [13]. Secondly, the appeal raises no issue of principle: see Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116. Thirdly, the CIM adopted a conventional approach to sentencing. Fourthly, and in any event, we do not regard the penalties imposed by the CIM as being more severe than appropriate for the circumstances. ORDERS 16 The Full Bench makes the following orders: (1) In relation to Matter Nos CIM 20367379/06/2 and 20367328/06/2: (a) Leave to appeal is granted. (b) The appeal is upheld. (c) The convictions and penalties imposed by the Chief Industrial Magistrate are quashed. (d) The parties shall bear their own costs before the Chief Industrial Magistrate and of the appeal. (2) In relation to Matter Nos CIM 20367310/06/2, 20367336/06/2, 20367387/06/2 and 20367352/06/2: (a) Leave to appeal is refused. (b) The appeal is dismissed. (c) The appellants shall pay the respondent's costs in a sum as agreed, or in default of agreement, as assessed. ________________________________________ 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.