Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun [2007] NSWIRComm 169 PROSECUTION: WorkCover Authority of New South Wales (Inspector Macready) PARTIES: DEFENDANTS: Fawaz El Dadoun Ghaleb El Dadoun FILE NUMBER(S): IRC 4708 & 4709 of 2005 CORAM: Staunton J CATCHWORDS: Occupational health and safety - pleas of not guilty - other co-defendants already dealt with - whether the offences alleged occurred as part of the defendants' undertaking and place of work - distinction between 'place of work' and 'undertaking' - factual circumstances considered - held worksite was part of ongoing undertaking of the defendants - held pursuant to subcontract agreement with co-defendants worksite was a place of work for defendants - offences proved with respect to certain particulars as pleaded - defences arising under s 28(a) and b) of the Act considered - relevant principles - held defences not established - penalty and costs to be determined. LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Carrington Slipways v Callaghan (1985) 11 IR 467 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock (2004) NSWIRComm 87 CASES CITED: WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montoro Pty Limited (Unreported) CT 1218 of 1996: 19 December 1996 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and anor (2007) NSWIRComm 132 WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (2005) NSWIRComm 263 HEARING DATES: 14/5/2007, 15/5/2007, 16/5/2007 & 14/6/2007. DATE OF JUDGMENT: 13 July 2007 PROSECUTION: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANTS: Mr K Ginges of counsel SOLICITORS: Regency Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 13/7/2007 Matter No IRC 4708 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun Prosecution arising under s 9 of the Occupational Health and Safety Act 2000 Matter No IRC 4709 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Ghaleb El Dadoun Prosecution arising under s 9 of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 169 1 Both defendants have entered a plea of not guilty to an offence alleged pursuant to s 9 of the Occupational Health and Safety Act 2000 (the 2000 Act). 2 The defendants are brothers and business partners operating a cement rendering business registered as El Dadoun, Ghaleb and Fawaz (also known as Sydney G & F El Dadoun Cement Rendering) referred to hereafter as the Dadoun partnership. 3 The offences arise from workplace injuries sustained on 1 October 2003 by Mr Omar El Mahrbani, a self-employed cement renderer, at a residential development site located at 2 - 6 Anglo Square, Carlton (the site). On that day, while undertaking cement rendering work on the upstairs balcony of a unit on the site, Mr El Mahrbani lost his balance and fell some 4.46 metres. As a result of the fall, he suffered head injuries, fractures to his left wrist and elbow, spinal and neck injuries and was unable to work for a number of months. 4 The work being undertaken by Mr El Mahrbani was part of a construction project consisting of nine townhouses. The principal contractor for the project was Forcon Pty Limited (Forcon). Mr Jeffrey Forsyth is the Managing Director and sole shareholder of Forcon. Forcon and Mr Forsyth have already entered pleas of guilty to respective offences arising under s 8(2) of the Occupational Health and Safety Act 2000 in relation to Mr El Mahrbani's accident and been dealt with by the Court: See WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and anor (2007) NSWIRComm 132 given on 1 June last. 5 It is part of the prosecutor's case in these proceedings that Forcon sub-contracted the internal and external cement rendering work for the project to the Dadoun partnership. Further, it is alleged, as part of their undertaking, the Dadoun partnership engaged the services of Mr El Mahrbani to perform some of the work for them. That fact is disputed by the Dadoun partnership who assert that at all times Mr El Mahrbani was working directly for Forcon as an independent contractor. 6 The determination of that issue is central to grounding the liability of the Dadoun brothers for the offence alleged with respect to both of them. 7 As partners in their cement rendering business, the offence alleged under s 9 of the Act is in identical terms. It is alleged that, respectively, on 1 October 2003, both defendants, as partners in the Dadoun partnership: Did fail to ensure that people other than his employees and including Omar El Mahrbani, a self employed cement renderer ('the worker'), were not exposed to risks to their health and safety arising from the conduct of his undertaking, namely, cement rendering work incidental to the construction of townhouses at the site, while they were at his place of work namely the site, contrary to s 9 of the Occupational Health and Safety Act 2000. 8 The particulars of each offence are in similar terms as follows: [1] The defendant was a partner in the Dadoun business partnership, which partnership on or about 5 May 2003 contracted with the principal contractor at the site Forcon Pty Limited (ACN 001 863 190) ('Forcon') to carry out cement rendering work incidental to the construction by Forcon of 9 residential townhouse units at the site. [2] Dadoun subcontracted some of the work required to be performed pursuant to its contract with Forcon, to the worker. [3] At about 1.00 pm on 1 October 2003 the worker was conducting cement rendering work at the site pursuant to Dadoun's undertaking pursuant to its contract at the site. He was in the process of rendering a straight edge above the top of a sliding door on the southern end of the balcony of unit 7 at the site when he slipped and fell from the balcony on to a dirt driveway a distance of approximately 4.46 metres below. [4] As a consequence of the fall the worker sustained a number of injuries including fractures to both his left wrist and elbow, injuries to his head, left leg, lower spine and neck, which injuries prevented the worker resuming his normal work for more than 7 days. [5] At the time the worker fell there were no proper measures in place on the balcony of Unit 7 at the site to control risks associated with falls from such a height. [6] The worker's fall from the balcony resulted from the defendant's failure to maintain a safe system with respect to the conduct of the rendering work in that: (a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely. (b) It failed to ensure that the conduct of the work was in accordance with the safe work method statement in force pursuant to Dadoun's contract with Forcon. (c) The defendant failed to properly assess the risk in relation to the work being performed and to identify the hazards associated with the performance of such work and to develop an appropriate control measure for its conduct. (d) The defendant failed to ensure that the requirements of the Occupational Health and Safety Regulation 2001, clause 56 were complied with in respect of the conduct of work which involved a risk of a fall from a height of more than 2 metres. (7) The defendant failed to provide appropriate information, instruction, training and supervision in relation to the conduct of work involving the rendering of the straight edge above the top of the sliding door when it involved the worker standing on a platform approximately 500mm above the concrete balcony floor such as was necessary to ensure that risks to the health and safety of the worker were avoided. Relevant principles 9 The legislative provisions grounding the offence charged against the defendants have long been established as ones imposing an absolute liability subject to the statutory defences available: See Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 449 reaffirming the conclusion of Watson J in Carrington Slipways v Callaghan (1985) 11 IR 467 at 470 where his Honour said: I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA) , where in reg 4 the phraseology used is `shall take all reasonable precautions to ensure' (see Smith v Elliott Bros Pty Ltd (1980) 26 SASR 138) ... In their context and purpose, there would appear to be no reason to make any implication that the words `to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 10 While the above decision was reflective of the provisions of the Occupational Health and Safety Act 1983, the legislative approach in the Occupational Health and Safety Act 2000 is identical. 11 The absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the identified failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated in relation to s15(1) of the 1983 Act but equally applicable to s 9 of the 2000 Act: Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 12 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the conduct of the defendant giving rise to the breach and the alleged risk to safety arising. 13 In relation to the offence alleged with respect to the Dadoun partnership under s 9 of the 2000 Act, the elements of the respective offences are: (i) each defendant was a self employed person; (ii) there were persons, not employees, exposed to risks to their health or safety; (iii) the risk arose from the conduct of the defendants' undertaking; (iv) the exposure to risk was at the defendants' place of work. 14 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 15 What is required is a risk to safety, not an actual incident causing an injury: See Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 16 Section 7 of the 2000 Act provides that risks arising out of the activities of persons at work includes risks attributable to: (a) the manner of conducting an undertaking, or (b) the plant or substances used for the purposes of an undertaking, or (c) the condition of premises (or any part of premises) used for the purposes of an undertaking. 17 The above provisions would seem to do little except state what authorities of this Court have long established, that is, for risk to be established, it must arise out of or be attributable to the overall conduct, including plant and equipment, of the defendants' undertaking. Witnesses 18 In addition to Inspector Macready, the witnesses relied upon by the prosecution were as follows: (i) Mr Jeffrey Forsyth. At the relevant time, Mr Forsyth was the Managing Director of Forcon Pty Limited - the principal contractor at the site where Mr El Mahrbani was working at the time of his accident. (ii) Mr Luigi Caforio. Mr Caforio was employed by Forcon as a building supervisor for it's project development site where Mr El Mahrbani had his accident. He was present at the site on the day of the accident. (iii) Mr Christopher Dean. Mr Dean was the Construction Manager for Mullaly Properties. Forcon was the related building company. (iv) Mr Omar El Mahrbani. Mr El Mahrbani was working as a cement renderer at the Forcon site. It was he who fell off the balcony and was injured on 1 October 2003. (v) Mr Mahmoud El Mahrbani. Mr El Mahrbani is a cousin of Mr Omar El Mahrbani. He was working as a labourer at the Carlton site for Mr Omar El Mahrbani at the time of the accident on 1 October 2003. 19 Evidence was given by both defendants on their own behalf. As well, on behalf of the defendants, evidence was adduced from Ms Intisar El Dadoun, the wife of the defendant, Mr Ghaleb El Dadoun. Relevant facts and considerations 20 Counsel for the defendants raised two issues as being critical in determining their liability, they being: (i) that the work performed by Mr Omar El Mahrbani was not part of the undertaking of the Dadoun partnership; (ii) in the alternative, the work being performed by Mr El Mahrbani at the time of the accident was not part of the defendants' undertaking because, from mid September 2003, it was not the defendants' place of work. 21 Before proceeding to consider both of those issues in detail, there were 'agreed facts' filed by the prosecutor. Before setting them out, it should be noted that, from para [14] onwards, the facts have to be viewed not as facts agreed but as facts not disputed by the defendants on the basis they were not present at the worksite at the time. On that basis, the facts relied upon are as follows: [1] At all material times the prosecutor was a inspector duly appointed under division 1 of Pt 5 of the Occupational Health & Safety Act , 2000 and empowered under s106(1)(c) of the said Act to institute proceedings in the within matter. [2] At all material times Fawaz El Dadoun ('the third defendant') and Ghaleb El Dadoun ('the fourth defendant'), were self employed persons of 46 Rawson Road, Greenacre in the State of New South Wales. [3] At all material times the third and fourth defendants were partners in a business registered in the name of El Dadoun, Ghaleb & Fawaz. The ABN number for this business is ABN 70359833125. The third and fourth defendants conducted this business in Partnership. This Partnership also traded in the name of Sydney G & F El Dadoun Cement Rendering ('the Partnership'). [4] On or about 5 May 2003 the Partnership entered into a contract with Forcon Pty Limited (ACN 001 863 190) ('Forcon') to carry out cement rendering work at a residential townhouse development Site comprising nine new townhouses at 2-6 Anglo Square, Carlton in the State of NSW ('the Site'). [5] At all material times Forcon was the principal contractor at the Site. The contract between the Partnership and Forcon entered on or about 5 May 2003 was for the Partnership to carry out works at the Site described as follows: ' External and internal rendering. Supply and install all materials including scaffold '. [6] The contract price for the works was noted to be: '$20.90 per square metre - external, $12.10 per square metre - internal'. [7] A Work Method Statement ('WMS') in respect of plastering work bearing the date 30 April 2003, was provided by Forcon to the Partnership in or around the time the agreement was entered into between them to form part of the terms of same. [8] At all material times Omar El Mahrbani ('the worker') conducted business as a self employed person under the trade name 'The Renderers' and which business was conducted by O & A Mahrbani, license no. 111061C. [9] Between approximately May 2003 and 1 October 2003 the worker conducted cement rendering work at the Site. [10] At all material times during which the worker worked at the Site on and prior to 1 October 2003 he worked there without having been provided with the WMS or Site Specific Induction Statement (SSI) either from Forcon or the Partnership. [11] On or about 26 May 2003 the worker submitted a progress payment invoice, in respect of work performed at the Site, addressed to Forcon and forwarded by the Partnership for works conducted up to 26 May 2003 for an amount of $8,800.00. [12] On 13 June 2003 a cheque was drawn by Forcon payable to the worker in the sum of $6,534.00 in respect of the first progress claim after deduction of a retention. The worker made a further progress claim on or about 19 June 2003 which progress claim was submitted to Forcon and contained in an invoice from the Partnership for a total amount of $17,199.00 with $7,800.00 of that figure being payable to the worker. The invoice requested Forcon to pay $7,800.00 to the worker direct. [13] On 15 July 2003 a cheque payable to the worker was forwarded by Forcon for the amount of $7,800.00 in respect of the second progress payment being cheque no. 403329. [14] On or about 1 October 2003 the worker was carrying out rendering work involving the balcony of unit 7 at the Site. [15] Unit 7 at the Site consisted of a two storey red brick building and when viewed from Nielsen Avenue on the right hand side it had a full width balcony which as at 1 October 2003 did not have its permanent hand rails or any temporary hand rails attached. The two storey half of unit 7 had a pitched metal roof with two dormer windows. [16] The left hand half of the second storey when viewed from Nielsen Avenue of unit 7 simply had a grey rendered finish appearance with no brick work and a full width balcony. As at 1 October 2003 it had no permanent hand rail attached. It had a flat roof line and was suspended over a driveway which had not been completed and still consisted of dirt and rubble. There was a grey rendered wall between the balconies on the second storey of the right hand half and the left hand half of unit 7. [17] The height of the balcony on the left hand side second storey half above the driveway was approximately 4.46m. The driveway under this part of unit 7 extended front boundary of the Site to underneath unit 7 and sloped towards unit 7 at an approximate gradient of 1 in 7. [18] The balcony on the left hand half of unit 7 above the driveway was accessed from inside that part of unit 7 by two sliding glass doors each measuring approximately 1.43m x 2.1m high. [19] The dimensions of the balcony of unit 7 which was situated above the driveway were 4.19m wide and 1.13m deep. The distance from the floor of the balcony to the ceiling above the balcony was approximately 2.56m. [20] On or about 30 September 2003 scaffolding which had been erected at unit 7 at the Site was removed by the worker. [21] At about 1.00pm on 1 October 2003 the worker was engaged in performing rendering work above the sliding door on the balcony of unit 7 above the driveway. The worker was in the process of installing a straight edge to the top of the sliding door. In doing so he was tightening a 12mm steel bent rod known as a 'shangle' into which a square is hung. Whilst pulling back on the shangle it slipped off the inside top of the sliding door causing the worker to lose his balance and fall backwards. At the time the worker was performing the work above the door he had been standing on a temporary work platform situated approximately 500mm above the concrete floor level of the balcony. [22] At the time the worker overbalanced and fell backwards, there was no scaffolding or any appropriate structure in place to protect the edge of the balcony above the driveway of unit 7. Consequently the worker fell over the edge and to the dirt driveway below a distance of approximately 4.46m. [23] As a consequence of the fall the worker suffered a number of injuries including fractures to his left wrist and elbow, head injuries, an injury to the left leg, injuries to the lower spine and neck as a consequence of which he was unable to resume any work for a period of approximately 10 months following the accident. [24] At some time prior to the fall there had been a temporary hand railing attached to the balcony of unit 7 above the driveway. The hand railing consisted of upright timber supports bolted to the concrete floor with a timber hand rail approximately 1m above concrete floor level. At the time of the worker's fall this hand rail had been removed, bearing only the upright supports in place. [25] At all material times any temporary hand rail which had been in position on the said balcony, was not a protective hand rail which would have complied with the requirements of AS1657. [26] The temporary hand rail structure which had been erected prior to the worker's fall on 1 October, even if in situ at the time of the fall was not such a proper protective hand railing as would have prevented a person falling from the balcony while working on an elevated work platform 500mm above the concrete floor of the balcony as the worker was doing at the time he overbalanced and fell. 22 There are a number of additional matters disputed by the defendants as follows: (i) Forcon did not provide any interpreters or Arabic translations to the Dadoun partnership for the WMS or the subcontract agreement; (ii) Forcon did not provide a Site Specific Induction Statement to the Dadoun partnership; (iii) On behalf of the Dadoun partnership, Mr Ghaleb El Dadoun did not sign the second page of the agreement or the Site Specific Induction Statement. The disputed documents 23 As the agreed facts make clear, the Dadoun partnership had an agreement with Forcon Pty Limited (Forcon) to carry out cement rendering work at Forcon's townhouse development site. That agreement was for internal and external cement rendering to be undertaken at an agreed contract rate of $20.90 per square metre for external work and $12.10 per square metre for internal work. 24 That agreement took effect, at the very latest, on or about 5 May 2003. The evidence disclosed that around that time Mr Dean, Construction Manager on behalf of Forcon, visited Mr Ghaleb El Dadoun at his home in order to obtain his signature, on behalf of the partnership, to three documents that, taken together, are said to reflect the totality of the agreement between the Dadoun partnership and Forcon. The three documents are: (i) the subcontract agreement between the Dadoun partnership and Forcon; (ii) A Work Method Statement (WMS) relevant to the subcontract agreement; (iii) A Site Specific Induction Statement (SSIS) relevant to the subcontract agreement. 25 There is dispute between the parties in relation to certain aspects of the above documents. 26 To start, the defendants assert that the Site Specific Induction Statement (SSIS) was never provided to them by Forcon or signed on behalf of the Dadoun partnership. Further, the defendants point to irregularities in the copy of the agreement and the WMS held by Forcon when compared with the originals of those documents held by the defendants. I will return to the latter issue in due course later in this judgment. 27 The copy of the SSIS produced as part of the prosecution brief was a photocopy (exhibit 8) produced by Forcon. It purports to have the signature of Mr Ghaleb El Dadoun entered on the second page. Mr Ghaleb El Dadoun disputes that signature and says it is not his. 28 There are two evidentiary matters that weigh somewhat against Mr Ghaleb El Dadoun on this issue. The first is that the signature on the copy of the SSIS that is before the Court looks, to the naked eye, similar to his signature that appears on the subcontract agreement as well as the Work Method Statement (WMS) that he acknowledges is his. It must be said, however, that the quality of the copy, as far as the signature is concerned, is poor. 29 No expert evidence was adduced to verify, or otherwise, that the signature on the copy of the SSIS was Mr Ghaleb El Dadoun's. 30 Second, in his interview with Inspector Macready on 20 May 2004, Mr Ghaleb El Dadoun was questioned about the SSIS in the following terms: Q112: I am now going to show you a document called "Site Specific Induction For: 2-6 Anglo Sq Carlton" dated 30/4/04, marked for identification (DMAC5). Have you seen this document before? A: I recognise my signature, but I cannot remember the document. Q113: Can you describe to me the purpose of this document? A: No. Q114: Was this the document given to El-Dadoun Ghaleb and Fawaz by Forcon Pty Ltd? A: I don't remember. Q115: Who gave El-Dadoun Ghaleb and Fawaz this document? A: I don't remember. Q116: When was this document given to El-Dadoun Ghaleb and Fawaz? A: I don't remember. Q117: Who signed this document on behalf of El-Dadoun Ghaleb and Fawaz? A: It was my signature. 31 I accept that a simple visual comparison of signatures is insufficient to establish to the requisite onus that the signature on the second page of the SSIS (exhibit 8) is Mr Ghaleb El Dadoun's. However, when considered in the light of Mr Ghaleb El Dadoun's apparent admission in his interview with Inspector Macready in May 2004, as detailed above, the evidentiary position is clearly altered. 32 Notwithstanding those two matters, Mr Ghaleb El Dadoun was adamant the signature on the copy of the SSIS was not his. He was vigorously cross examined, particularly as to the clear inconsistency in his evidence before me and his record of interview with Inspector Macready, saying that the document shown to him by Inspector Macready was 'unclear'. As he said: Q. Mr El Dadoun, can you remember anything about the document that the Inspector showed you being unclear? I suspect you are able to recognise the signature in it, whereas you are not able to recognise it, in fact deny it, in the document in front of you? A. You mean this document here? Q. The one in front of you, yes? A. I do not, it was not clear to me that was my own signature. Q. Which one, the one the Inspector showed you or that one? A. The Inspector. You can see here (he is pointing to assist the Court and yourself, he is pointing to the document, to the questions, and to the Inspector and he is pointing in every page there is his own signature) and you can see the difference between this signature and this one. Q. I would suggest to you, you did sign that Site Specific Induction form? A. No. Q. And you certainly had seen it before these court proceedings started, you saw it when the Inspector showed it to you on 20 May 2004, didn't you? A. I couldn't see it clearly. I am not the Inspector to be forging signature, and if he have the original you show it to me, if you have? 33 Certainly, Mr El Dadoun's evidence on this matter was contradictory. On one view, it is odd that Mr El Dadoun was so insistent he had not signed the SSIS as there is no dispute by him he did have a subcontract agreement with Forcon to do work at their site. He had signed the front page of that subcontract. He had also signed the WMS that accompanied it. 34 Ultimately, it seems to me, nothing much turns on it. Having had the opportunity to peruse the copy of the SSIS that is exhibit 8, it has all the hallmarks of being a pro forma document prepared by the Housing Industry Association for use by employers or principal contractors in the housing industry. A failure to sign such a document does not invoke automatic liability under the Occupational Health and Safety Act - nor does it allow a subcontractor to avoid the absolute liability to undertake work absent risks to safety that the Occupational Health and Safety Act requires. 35 If anything, the dispute about Mr El Dadoun's signature on the SSIS goes to the respective credibility of Mr Ghaleb El Dadoun and representatives of Forcon concerning the documents that evidenced the agreement between them. On that issue, the evidence is, in many respects, equivocal. 36 It was Mr Dean on behalf of Forcon who was responsible for negotiating the subcontract agreement with the Dadoun partnership. His task, amongst others, was to explain the relevant details of the agreement together with the WMS and the SSIS and to have the documents signed on behalf of the Dadoun partnership. 37 According to Mr Dean, when he visited Mr Ghaleb El Dadoun at his home on or about 5 May 2003, he 'believed' he gave him the three documents. That is, the subcontract agreement, the WMS and the SSIS. When cross examined specifically as to the SSIS, his evidence was: Q. Sir, is it possible that on the day that you went and saw the El Dadouns, on that day in early May 2003, that you actually forgot the Site Specific Induction? A. It is possible but I don't recall. I believe I took this Site Specific Induction form out with the subcontract agreement and with the WMS statement. 38 In other words, Mr Dean had no specific or clear recollection as to the SSIS - simply that he 'believed' he would have given Mr Ghaleb El Dadoun a copy to sign but agreed it was possible he may have forgotten it. 39 As I understand it, Mr Dean signed the documents on behalf of Forcon and left them with Mr Ghaleb El Dadoun after he had gone through them with him and his wife. As he explained: I just basically pointed out the areas of information we required from them, places to sign, advised them to go through the conditions and return on completion. 40 To the best of Mr Dean's recollection, no documents were signed in front of him. What he did, as he acknowledged, was to put an asterisk next to the sections Mr Ghaleb El Dadoun was to sign or complete on behalf of the partnership. 41 Mr Dean's recollection is at odds with that of Mrs Intisar El Dadoun and the defendant, Mr Ghaleb El Dadoun. Mrs El Dadoun is the only member of the El Dadoun family who is reasonably fluent in English - both her husband and brother-in-law require the assistance of an interpreter. Mrs El Dadoun was present and assisting her husband by interpreting on the day Mr Dean came with the contract documents. According to Mrs El Dadoun, Mr Dean produced two documents to be signed, the subcontract agreement and the WMS. As she explained: A. When he first arrived we met, he told me that he's the - we met, he came over, we met, he told me his name was Chris, I introduced myself as Ghaleb's wife and then he gave us the contract, he said, just fill in where I've starred it. ... A. So I just filled in, Sydney G & F Cement Rendering, there was a phone number, I also wrote on it the ABN number, and the last page, I just also put the name on it, the phone number and that was it, but the ... ... A. But there was some parts missing because of the AMP public liability information, I didn't have that on hand so I left that bit out. (Witness shown Exhibits 10 and 19) Q. Have you seen those documents before? A. Yes. Q. And in relation to the one that's entitled subcontractor's agreement, or contract? A. Yes. Q. You were saying before that you put some of the details in; did you put Fawaz and Ghaleb in that one? A. I put the name here, the business name. Q. You put the business name, did you? A. I put the business name, the subcontractor ABN number. Q. Yes? A. The date. Q. Yes? A. But these ones were written later because I didn't have them, the information about the insurance and the licence number. Q. You faxed that document to Forcon, didn't you? A. Yes. Q. And was that on 19 June 2003? A. Yes. Q. When you faxed that to Forcon, had somebody asked you to fax it to them? A. They asked me to fax it to them with the information about the AMP and the, what do you call it, the policies. Q. And you faxed it with the copies of those policies? A. Yeah, with a copy of the policies, with this copy, with the invoice. Q. And had you given a copy of that contract to Forcon at any time before 19 June 2003? A. No, no. Q. Now, you can see the second page; did you explain this document to Ghaleb? A. I explained this to my husband, because it's, anyone could understand it, it's they're charging by the metre, I told him that it's render work, and his name was on it, it's just straightforward, anyone could read and understand it and I told him to sign it. Q. And when you turn it over, can you see a signature at the bottom of that page? A. Yes. Q. Do you know whose signature that is? A. Chris'. Q. And there is some writing on the back of that page? A. Yes. Q. Did you explain that writing to your husband? A. No, no. Q. Why not? A. My son was crying and just before Chris left I asked him was there anything important I must know in the contract so I can translate. I asked Chris if there's anything important I must translate for my husband; he says, no, that's the important page, that I just, that's the most important page I had to translate so I did that and told my husband to sign, because it's straightforward, so. Q. The second document, have you seen that document before? A. Yes. Q. And, will you turn over, there's some handwriting at the bottom? A. Yes, I printed this statement when I printed this out when I wrote his name on that. He just told me, put his name, his number, but that was all. I didn't tell my husband "sign here", because I had left the room. Q. And so, did you read or explain any of the writing to your husband there? A. No, I've never seen a contract before. Q. You've never seen a contract before? A. No, this is the first contract I've ever seen regarding the rendering business. Q. And did you see your husband sign that second page? A. No, I only saw him sign this one on the front page. I had to leave the room because my son was crying. Q. And when you came back he had signed? A. I didn't check to see if he had signed it, because my husband told me everything's finished, but during that time, Chris must have told my husband to sign when I wasn't in the room. 42 I accept the overall veracity of Mrs El Dadoun as to the sequence of events that occurred during Mr Dean's visit. I am satisfied that Mr Dean left the originals of the subcontract agreement and the WMS with the El Dadouns when he visited them on 5 May 2003 and that Mrs El Dadoun subsequently faxed signed and completed copies of those documents to him on or about 19 June 2003. I am not so satisfied in relation to the SSIS. 43 In these proceedings, the original subcontract agreement and WMS were produced by the defendants. The copies relied upon by the prosecution were produced by Forcon as part of the investigations by Inspector Macready on behalf of WorkCover. 44 Curiously, when reference is made to the originals of the subcontract agreement and the WMS, an asterisk appears in blue pen at certain locations on both documents, including where Mr Ghaleb El Dadoun signed. On the photocopy of the SSIS, no such asterisks appear on either page. 45 In my view, given the evidence of Mr Dean and Mrs El Dadoun that asterisks were placed at relevant places on the documents indicating where Mr El Dadoun was to sign or complete, that is an inconsistency of some relevance when considered together with the absence of an original SSIS. 46 In considering all of the evidence on this issue, I am not satisfied beyond reasonable doubt that Mr Ghaleb El Dadoun was given and did sign the SSIS in the circumstances as asserted by the prosecution. 47 The dispute over the SSIS is not the only issue between the parties concerning the documentation signed between them. In fact, the issue raised by the defendants relating to the documentation between the defendants and Forcon is that it is evidence of 'impropriety or sloppiness' in the way in which Forcon contracted with non-English speaking workers, including the El Dadouns and Mr El Mahrbani. That such 'impropriety or sloppiness' existed, it was contended, was a relevant consideration when weighing up that aspect of the prosecution's case that asserted Forcon always had written agreements with it's subcontractors. 48 Certainly, one of the indicia relied upon by the prosecution in establishing the defendants' undertaking included the work performed by Mr El Mahrbani was the absence of any written agreement between Forcon and Mr El Mahrbani. Given Forcon's policy of having written agreements with it's subcontractors, that fact, the prosecution submitted, supported a conclusion that the work performed by Mr El Mahrbani was done pursuant to the defendants' written agreement with Forcon and was part of the defendants' undertaking. 49 On behalf of the defendants, it was said the evidence that went to Forcon's 'impropriety or sloppiness' in attending to relevant contractual documentation with the defendants raised the inference that such an approach was common in Forcon's dealings with subcontractors and raised the likelihood that Forcon did engage Mr El Mahrbani directly but simply failed to ensure the relevant contractual documentation was effected. 50 It is indisputable that Forcon's approach to dealing with it's administrative responsibilities of finalising written contractual agreements with the defendants and, on Mr Dean's evidence, with it's subcontractors generally, was distinctly haphazard. For example, in addition to my finding in relation to the SSIS, the following inconsistencies emerged in relation to the subcontract agreement and the WMS between Forcon and the Dadoun partnership: (i) on the copy of the subcontract agreement produced by Forcon and tendered by the prosecution (exhibit 7), Mr El Dadoun's signature appears on the second page at the bottom right hand side of the page and Mr Dean's signature appears at the bottom left hand side of that page. On the original of the subcontract agreement produced by the defendants (exhibit 10) Mr Dean's signature appears at the bottom right hand side of the page. Mr El Dadoun's signature does not appear at all on the second page. (ii) On the copy of the WMS produced by Forcon and tendered by the prosecution (exhibit 8A) the first page identifies the defendants as 'Sydney G & F El Dadoun Cement Rendering'. The first page of the original WMS produced by the defendants (exhibit 19) identifies the defendants as 'Ghaleb and Fawaz'. A further copy of the WMS (exhibit 9) does likewise. 51 On behalf of Forcon, the obvious inconsistencies between the documents was explained by Mr Dean as follows: A. The only explanation I can give is, when preparing all these documents, not just for this but also subcontractor agreements for various tradesmen, subcontractors, we usually issue them original documents before they start work. When they - and then we ask for, obviously, them back signed, dated, all the details supplied. If we haven't received these documents back in the office by the time they start, or sometimes we don't see them again, we get half of them back and not the other, I would, before they start work, I would draw up a certain section which requires the signature or, you know, just anything that they haven't supplied and get them to take it outside and leave with our on-site staff and get them to fill in the information that they're supposed to whilst on site. Q. Do you have any specific recollection of doing that in this case? A. I believe there were certain documents that we had to chase up, it happens 90 per cent of the time, not just with these subcontractors, with numerous subcontractors, every Tuesday. Q. Do you have any specific recollection of it happening in this case? A. I believe so, yes. Q. And which documents, do you recall, you had to chase up? A. I believe it was the conditions of the subcontract agreement, and it looks like the work method statement. 52 As the above extract evidences, Mr Dean had a tendency, on occasions, to answer questions on the basis of what he believed was the factual situation rather than asserting a clear recollection of the fact in issue. Such an approach raises the inference that Mr Dean had no direct recollection of the fact in issue and was simply asserting as to his general belief. 53 Notwithstanding that, Mr Dean's explanation as to how the inconsistencies probably arose in relation to the contractual documentation between Forcon and the Dadoun partnership was disconcerting to say the least. To my mind, it does demonstrate a sloppy, almost negligent, approach to it's overall responsibilities for project management and worksite safety. 54 My findings so far in relation to the contractual documentation between Forcon and the Dadoun partnership are indicative, in my view, of an overall lax approach on Forcon's part to ensuring a coherent and reliable approach to doing business with subcontractors. In coming to that view, it does not necessarily mean that Forcon engaged subcontractors without written contractual arrangements in place. That is an issue I will return to later in this judgment. 55 It is appropriate at this point to deal with the defendants' claim that Forcon did not provide any interpreters or Arabic translations to the Dadoun partnership for the WMS or the subcontract agreement. 56 On Mr Dean's own evidence, the only information conveyed by Forcon to Mr Ghaleb El Dadoun in relation to the partnership's safety responsibilities on site was the limited conversation between Mr Dean and Mr Ghaleb El Dadoun on 5 May 2003, utilising Mrs El Dadoun as interpreter. Otherwise, it was left to whatever was conveyed to them on site. That would appear to have been negligible, if the evidence of Mr Carforio, Forcon's building supervisor for the site, is to be accepted. 57 Overall, I found Mr Carforio to be an unimpressive witness in the sense that his evidence reflected poorly on his role as building supervisor at the Forcon site with overall responsibility for workplace safety. His statement to Inspector Macready is illustrative of the basis of that impression as follows: Q43: I am now going to show you a document called "Work Method Statement - Plastering" dated 30/4/03, marked for identification (DMAC4). Have you seen this document before? A: Yep. Q44: Was this document shown and explained to Omar El Mahrbani? A: No. Q45: How did you ensure that the work being carried out by Omar El Mahrbani was in accordance with this document? A: Just have to check up on him to make sure he was working with safe practices. Q46: What information did Forcon Pty Ltd provide to Omar El Mahrbani about the work he was undertaking at the time of the incident? A: Information was given to El Dadoun as subcontractor, the work method statement would have been given to El Dadoun by our head office together with the contract. Q47: Who provided that information? A: It would be Chris Dean, construction manager for Forcon. (emphasis added) Q48: Who were they employed by? A: Forcon Pty Ltd. Q49: When was that information provided? A: Same date as the contract 30th April 2003. Q50: Was this information provided in writing? A: None to Omar. Q51: What language was the information in? A: Don't know. Q52: How did you ensure that Omar El Mahrbani understood this information? A: Did not provide Omar with this information, would have got this information through Ghaleb. Q.53: What training did Forcon Pty Ltd provide to Omar El Mahrbani about the work he was undertaking at the time of the incident? A: Would not have been up to us it would have been up to Ghaleb. Q54: What issues were covered? A: Don't know. Q55: Who provided that training? A: Ghaleb's responsibility. Q56: What was their position? A: A renderer, I think. Q57: Who were they employed by? A: El-Dadoun Ghaleb and Fawaz. Q58: When was that training provided? A: Don't know. Q59: What language was the training in? A: Don't know. Q60: How did you ensure that Omar El Mahrbani understood this training? A: It was not up to me, Ghaleb was to provide the training, he was an employee of Ghaleb. 58 In his evidence before me, Mr Carforio was equally unforthcoming, except in a most limited way, as to any role or responsibility he undertook as building supervisor at the site in relation to safety. If his evidence that any information the defendants may have been given about work and safety related matters arising from the subcontract agreement or WMS is accepted (see Q & A 46 and 47 above as italicised) then I am satisfied they received very little. As Mr Carforio said, that was all left to Mr Dean. As earlier stated, Mr Dean's only direct dealings with the Dadoun partnership was limited to his meeting with Mr Ghaleb El Dadoun on 5 May 2003 where, as he said: I just basically pointed out the areas of information we required from them, places to sign, advised them to go through the conditions and return on completion. 59 While I am satisfied Mr Ghaleb El Dadoun did sign the original subcontract agreement and the WMS, I am not satisfied he necessarily understood the full import of the partnership's obligations flowing from such an agreement, including matters going to workplace safety. Apart from the assistance of Mrs Intisar El Dadoun, whose English skills, while reasonably good, are not colloquially fluent, no effort was made by anyone on behalf of Forcon to explain in a language the defendants readily understood, or ensure the defendants fully comprehended, the workplace safety obligations that arose pursuant to their contractual agreement with Forcon. Indeed, Mr Fawaz El Dadoun does not appear to have had any discussions with Mr Dean or anybody else on behalf of Forcon about workplace safety responsibilities. They are matters going more to mitigation on sentence, should such considerations arise. The nature and extent of the defendants' undertaking and place of work 60 When performing cement rendering work at the Forcon site pursuant to their subcontract agreement with Forcon, there can be no doubt the site was both an undertaking and a place of work for the Dadoun partnership. 61 As prior authorities of this Court have determined, what is the employer's 'place of work' is a matter of fact to be determined by the circumstances of the case: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 at [63] and WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 at 263. 62 The same approach would apply in determining the extent of a defendant's undertaking. In saying that, it is important to distinguish between 'place of work' and 'undertaking'. On that distinction, Walton J, Vice-President said in WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock (2004) NSWIRComm 87 at [310] as follows: Although there are obvious connections (indeed, an employer's place of work will always be part of its undertaking), the two concepts do not always overlap. An employer's undertaking may be present at a place which is not the employer's place of work and the key to the distinction lies in the examination of performance of work in the circumstances of a particular case. 63 Unlike the expression 'place of work', 'undertaking' is not defined in the Occupational Health and Safety Act 2000. As a general proposition, the defendants' undertaking may be defined as the nature and extent of their business as cement renderers. 64 It is necessary in the first instance to consider the aspects of 'undertaking' and 'place of work' separately: See WorkCover Authority of New South Wales v TAFE (1999) 92 IR 251 at 262. 65 In alleging that the work performed by Mr El Mahrbani at the Forcon site was part of the undertaking and place of work of the Dadoun partnership, the prosecution relied primarily on three indicia: (i) the absence of any written contractual agreement between Forcon and Mr El Mahrbani in relation to the cement rendering work done by him; (iii) the working relationship between Mr El Mahrbani and the defendants at the Forcon site, as evidenced by Forcon personnel, including the utilisation by Mr El Mahrbani of scaffolding belonging to the defendants and the use by him, in the first instance, of 'sand and gravel' that is asserted to have belonged to the defendants; (iii) the process by which the work performed by Mr El Mahrbani at the Forcon site was invoiced and paid. 66 Central to the prosecution's assertion as to the nature of the contractual agreement between Forcon and the Dadoun partnership was the evidence given by representatives of Forcon to the effect that there was only one contract put in place in relation to the cement rendering work done at the Forcon project and that was with the Dadoun partnership. Further, it was said, it was the policy of Forcon to always have written contractual agreements in place with all subcontractors. 67 There was no written contractual agreement in place as between Forcon and Mr Omar El Mahrbani - that much seems evident. Accordingly, counsel for the prosecutor asserted, any work undertaken by Mr El Mahrbani at the Forcon site was done by him on behalf of the Dadoun partnership pursuant to their contractual agreement with Forcon and as part of their undertaking. 68 Evidence as to the policy of Forcon always having written contractual agreements with subcontractors was given by Mr Forsyth and Mr Dean. 69 Mr Forsyth's evidence was more in the nature of what he understood to be the policy of the company in relation to written contractual agreements for subcontractors. That is, he said, there was only ever one subcontract agreement for the internal and external rendering work at the project. That contract was with the Dadoun partnership. 70 Mr Dean, who was responsible on behalf of Forcon for putting the necessary written contractual agreements in place with subcontractors, also confirmed that the subcontract agreement for the work of internal and external rendering at the site was with the Dadoun partnership. Further, he said, he had been told by Forcon staff on site that Mr El Mahrbani 'was working with their (the defendants') team of renderers'. 71 There was evidence in the form of invoices and cheque butts of monies paid by Forcon to other subcontractors who, on the face of the documentation, appear to have undertaken rendering work at the project site during the period when Mr El Mahrbani as well as the defendants were engaged. There was no evidence produced of any written contractual agreements between Forcon and those individuals identified. 72 As I understand it, on the basis of material included in the prosecution brief, those companies or individuals who were identified by the defendants as having undertaken rendering work during the relevant period were as follows: (i) SFSA Pty Limited (ii) Ivan De Sousa (iii) A Team Plastering (iv) Ruzario Hosni 73 Of the above-named, two of them, SFSA Pty Limited and Ivan De Sousa, would appear to have undertaken rendering work at the project site prior to the accident involving Mr El Mahrbani. In his evidence, Mr Forsyth stated that the work undertaken by SFSA Pty Limited was what he referred to as 'white setting' of ceilings, which was, he said, different to cement rendering work. Further, the work undertaken by Ivan De Sousa was, he believed, for some rendering of fencing that was outside the nature of the contract with the Dadoun partnership. As well, he said, after Mr El Mahrbani's accident on 1 October 2003, neither Mr El Mahrbani nor the defendants returned to the site. Accordingly, Mr De Sousa, amongst others, was engaged to complete the rendering work that had not been completed by the Dadoun partnership pursuant to their contractual agreement with Forcon. 74 In his evidence, Mr Dean reinforced the substance of Mr Forsyth's evidence going to Forcon's policy of having written contractual agreements in place for subcontractors on site. 75 He did concede however, it was possible some subcontract work may have been done without written agreements but that was not the case, he stated, in relation to Mr El Mahrbani. As he said in evidence: Q. All I am asking you is whether you agree that it is possible that Forcon, for whatever reason, may have retained the services of a subcontractor without entering into a written agreement? A. It's possible, maybe just to finish off at the end but it's usually not the case. Q. Is it possible that Forcon retained the services of Omar El Mahrbani without entering into a subcontract agreement? A. Not for Omar, no, because the bulk of it, the main contract was with Sydney G & F. That's how Omar came to work on the site was through Sydney G & F. He was there from - he was part of the rendering team. I think the other guys were brought in, must have came in at the end to finish off or do odds and ends but the main bulk of the work Omar was on the Sydney G & F team renderers. 76 Further, Mr Dean confirmed the basis of his belief as to the role Mr El Mahrbani had as part of the El Dadoun agreement with Forcon as follows: Q. The assumption that you have made that Omar was working for Sydney G & F arises from what other people have told you, is that right? A. Yes. Q. And who told you that Omar was working for Sydney G & F? A. Just the site staff said he was in a team of renderers with Sydney G &F? Q. Did the site staff tell you he was working on the same things? A. Same building or? Q. Well, on the same part of the work? A. The boys from Sydney G & F were instructed what section of work to be built on, for Omar, maybe you know - maybe the site staff asked him to finish off certain areas but I wasn't on-site, I can't recall. I was told he was part of Sydney G & F team of renderers. Q. You see, so what really happened was that Sydney G & F introduced Omar El Mahrbani to Forcon, didn't it? A. Not to me, no. If that was the case, if he he was doing the majority of the work as you are saying on-site I would have put a site contract agreement in to do that. Q. Did you only issue that for subcontractors who are doing the majority of the sort of a particular job? A. No, usually do it no matter what. Q. So what you are saying was that if someone had told you that he was a separate subcontractor you would have organised the contract for him, is that right? A. If Sydney G & F no longer worked on our site - is that what you are saying? Q. No? A. Sorry. Q. No, if somebody had told you that he was an independent subcontractor? A. Doing the same work as - same rates and everything? Q. Yes, would you have organised a separate contract for him? A. Yeah if there is - yes - yeah I would have but I just don't understand - if. Q. So ultimately it comes down to what somebody did or didn't tell you, is that right? A. No, as far as I am concerned, we had the contract with Sydney G & F and he was working as their team of renderers. I wasn't told that he was independent. I was told that he was working as their team of renderers. 77 I accept the tenor of Mr Dean's evidence as to his belief about Mr El Mahrbani working as part of the defendants' team of renderers. 78 Occurring as they did prior to Mr El Mahrbani's accident on 1 October 2003, counsel for the defendants pointed in particular to the payments made to SFSA and Mr Ivan De Sousa as evidence that Forcon did engage subcontractors without written contractual agreements in place. Such evidence, it was contended, pointed to a conclusion that there was no administrative process in place, as asserted by Mr Forsyth and, to a lesser extent, Mr Dean, to ensure all subcontractors were subject to written contractual agreements. Further, it was contended, the absence of any written contractual agreement between Forcon and Mr El Mahrbani cannot, by itself, be seen as evidence that the work undertaken by Mr El Mahrbani at the Forcon site was done pursuant to the contract as between Forcon and the Dadoun partnership and therefore formed part of the undertaking and place of work of the partnership. 79 In further support of that contention, counsel for the defendants pointed to the haphazard and unsatisfactory nature of the record keeping of Forcon in relation to it's written contractual arrangements with the defendants as evidence pointing to the conclusion that Forcon may well have engaged subcontractors from time to time and simply failed to effect written contractual arrangements. 80 I have to say, the evidence relied upon by the defendants in support of it's overall submission on this issue is not as strong as the submission made would suggest. That is, while there was evidence before me of invoices rendered and paid prior to 1 October 2003, particularly to SFSA and Ivan De Sousa, for 'rendering' work done, there is no evidence before me by way of a subpoena issued by the defendants for Forcon to produce copies of any written contractual agreements between it and SFSA and Mr De Sousa for that period. In other words, simply pointing to the payment of invoices and cheque butts does not satisfy the evidentiary onus of establishing that Forcon did not have written contractual agreements with SFSA and Mr De Sousa - or with other subcontractors. 81 Further, a sloppy and haphazard approach to written documentation does not, by itself, point to the conclusion the defendants contend. On the evidence I have, and notwithstanding my critical comments as to Forcon's approach to it's responsibilities in this area, I am satisfied that, as a general proposition, it was part of Forcon's worksite management policy to have written contracts with subcontractors. 82 That conclusion alone, together with Mr Dean's evidence, does not necessarily establish that the work being undertaken by Mr El Mahrbani was part of the defendants' undertaking. Other factual matters arise for consideration. 83 Mr Carforio, the building supervisor for Forcon at the site gave evidence as to his knowledge of the relationship between Mr El Mahrbani and the Dadoun partnership at the worksite. 84 For the reasons earlier stated, I found Mr Carforio to be an unimpressive witness. As well, in his evidence before me, he contradicted evidence he had given in his statements to Inspector Macready. He also had a tendency, on occasions, to give his evidence on the basis of what he believed to be the case rather than any evidence going directly to his recollection of the issue in question. In some respects, his recollection was clearly incorrect. For example, he gave evidence that Mr El Mahrbani was introduced to the Forcon site some two months after the defendants had commenced work there. All the evidence is clearly to the contrary. That is, Mr El Mahrbani commenced work at the Forcon site some weeks before the Dadoun brothers started work at the site. This was because of the inability of the defendants to start work at the site at the time Forcon initially requested as they were engaged elsewhere. It was because of that unavailability that the Dadoun partnership introduced Mr El Mahrbani to the Forcon project. 85 That Mr El Mahrbani commenced work at the site before the defendants is borne out by the first invoice ever rendered by Mr El Mahrbani for work undertaken by him. That invoice (exhibit 14) is dated 26 May 2003 whereas the evidence points to the defendants commencing work on the site sometime in early June. The first invoice rendered for work undertaken by them was 16 June 2003. That was also the day the subcontract agreement between Forcon and the Dadoun partnership was returned to Mr Dean, completed as requested. 86 As the building supervisor, Mr Carforio gave evidence that the cement rendering work was done intermittently as required. Significantly, he says, when such work was required, he always rang 'Ghaleb or Fawaz' - the El Dadoun brothers. Further, he says, he was told by Ghaleb and Fawaz, if they were not on site and any problems arose, he was to contact or deal with Mr El Mahrbani. Finally, on the relationship as between the defendants and Mr El Mahrbani, Mr Carforio gave evidence that in measuring up rendering work for billing purposes, done either by Ghaleb or Fawaz El Dadoun or Mr El Mahrbani, such measuring work was always undertaken by him accompanied by Mr Ghaleb El Dadoun. His evidence on these issues was not challenged. 87 Mr Carforio stated, when on site, Mr El Mahrbani and his team of employees always worked at different parts of the site from the team overseen by Mr Ghaleb and Fawaz El Dadoun. That is, they worked at different parts of the site, often at the same time. 88 The misgivings I felt about some aspects of Mr Carforio's evidence were reinforced when one has regard to the evidence he gave in relation to the initial allegation that, at the time of the accident, he saw Mr El Mharbani standing on two milk crates. When spoken to by Inspector Macready on 9 March 2004, he was asked: Q95: What was Omar El Mahrbani standing on at the time of the incident? A: He was working off two milk crates on top of each other at the time of the accident. 89 In his evidence before me, Mr Carforio stated he had never seen Mr El Mahrbani 'actually standing on milk crates'. Rather, that was what he believed Mr El Mahrbani was doing. 90 There is also inconsistency in Mr Carforio's evidence and his entries in the Forcon site diary as building supervisor. For example, in relation to the circumstances existing on the day of the accident, it was Mr Carforio's evidence that, on that day, there was no scaffolding in place in relation to the work being performed on the balcony of unit 7 by Mr El Mahrbani and, as a fall protection measure, he ensured timber handrails were put in place across the edge of the balcony with uprights 1100mm high and a timber handrail on top. Further, Mr Carforio stated, at the time the accident occurred, Mr El Mahrbani or one of his workers had removed the handrail on a number of occasions during the course of the day because he was told it was easier for them to perform their work. 91 Much was made of the absence of scaffolding on 1 October 2003 and when it had been removed. According to the site diary entries made by Mr Carforio, the scaffolding in front of the balcony on unit 7 was pulled down by the renderers on 30 September 2003 - the day before the accident. According to his entry in the site diary, the workers were told not to. It was, he said, because of the absence of the scaffolding on 1 October 2003, that the handrail fall protection measure was put up on the balcony of unit 7. However, Mr Carforio's entry in the site diary for 26 September 2003, confirmed in his statement to Inspector Macready on 9 June 2005, was that it was on 26 September, some four days before the accident, that the renderers pulled down the handrail on unit 7 and were asked to put it back on. Indeed, on the day of the accident, 1 October 2003, there is no mention in the site diary of any handrails being removed by the renderers from the balcony of unit 7. 92 If one has regard to the photographs taken by Mr Ghaleb El Dadoun on the day of the accident, two wooden uprights are evident on the balcony of the unit where Mr El Mahrbani fell. There is no evidence of any handrail. 93 Mr Carforio was challenged on the veracity of his evidence on this point and he adhered to it but, in all the circumstances, I found aspects of his evidence on this issue unreliable. 94 The evidence of Mr El Mahrbani is that the removal of scaffolding occurred about four days before his accident on 1 October 2003. As well, in his statement to Inspector Macready on 1 March 2004, Mr El Mahrbani indicated there was no handrail in place on the balcony of unit 7 on the day of his accident. As he explained to Inspector Macready, in removing the scaffolding from the wall on the south side of unit 7, he did so because, he said, he had been promised by the two Forcon foremen that wooden handrails would be put up on all the balconies to prevent falls and that he had spoken to the Forcon supervisors about this prior to starting work. According to him, scaffolding was not used as fall protection while he was working on the balcony of unit 7 because, he said, it was not his job to install the scaffolding to the balconies. 95 In relation to the issue of scaffolding, I prefer the evidence of Mr El Mahrbani to that of Mr Carforio. The evidence given by Mr El Mahrbani on this issue was consistent, both in his statement to Inspector Macready and before the Court. That is, scaffolding had been removed some four days or so prior to the accident and there was no handrail in place on the day he fell. 96 Mr El Mahrbani said that he was introduced to the worksite by one or other of the Dadoun brothers and that he gave a verbal quote for the rendering work he was to do to 'Jiff' who I understand to be Mr Jeff Forsyth, one of the other building supervisors on the site. Mr Jeff Forsyth was not called to give evidence. 97 His understanding as to the basis of the work undertaken by him at the site was expressed by him as follows: Q. You were first introduced to the site and the company by Fawaz or Ghaleb El Dadoun, is that right? A. Yes. Q. Do you remember which one introduced you to the company? A. Both. Q. Did you speak to somebody from the company after that? A. I spoke to Lui, I told him I was going to start work here. Q. Did you have many conversations with Lui? A. No not much, he just used to give me instructions of where to go, where to work. Q. Did you receive instructions on where to work from Ghaleb or Fawaz El Dadoun? A. No they just introduced me to the job and they told me the supervisors there would tell me where to go. Q. How long were you working at the site before Fawaz and Ghaleb started working there? A. I had just rendered six units from the inside and they still building the last flat there. Q. Did Fawaz and Ghaleb assist you in rendering the units on the inside? A. I think, I'm not sure, maybe one or two units from the inside; because I had left and I came back, they had finished everything from the inside. 98 Reference to 'Lui' in the above passage is Mr Luigi Carforio, the building supervisor for Forcon. 99 According to the defendants, their only action was to introduce Mr El Mahrbani to the Forcon site management. They gave him no instructions as to how he was to undertake his work and, by all accounts, did not supervise him in any way. According to them, and supported by Mr El Mahrbani, from the point of introduction onwards Mr El Mahrbani undertook work at the site as directed by Forcon site managers, including Mr Carforio. 100 In commencing work in May of 2003, Mr El Mahrbani did so with his own team of workers and, by and large, using his own plant and equipment. In cross examination, his evidence as to these matters was as follows: Q. You provided your own wheelbarrow, is that right? A. Yes. Q. Did you obtain your own materials? A. Yes. Q. Including render, cement and other things? A. When I got there, there was some sand and cement there on the job site, I think they belonged to Fawaz and Ghaleb. Q. Did you use that material to start with? A. Well, I wanted to order my own but that was there, in the way, so Lui said to me, "You can use those first and then order your own". Q. Who said that? Who told you that? A. Lui. 101 There was also the use by Mr El Mahrbani of scaffolding that was on site. On one view of the evidence, the scaffolding belonged to the Dadouns. That was certainly Mr El Mahrbani's belief although he said he was told that by Mr Carforio. However, Mr Carforio also told Inspector Macready that Forcon provided scaffolding on the site that was able to be used by the subcontractors. 102 According to the defendants, they did have scaffolding on the site but had removed it some time prior to Mr El Mahrbani's accident. 103 On the evidence, it was not possible for me to come to a concluded view that the scaffolding, about which much evidence was elicited and would appear to have been disassembled a few days prior to Mr El Mahrbani's accident, was scaffolding that belonged to the Dadoun partnership or was scaffolding that had been hired by Forcon. 104 The primary indicia relied upon by the prosecution to establish that Mr El Mahrbani, when working at the Forcon site, was part of the defendants' undertaking and place of work was the process by which Mr El Mahrbani invoiced and was paid for the work he performed at the Forcon site. 105 In the first instance, Mr El Mahrbani rendered an invoice to Forcon dated 26 May 2003 for what he described as the first progress payment. That invoice (exhibit 14) was an invoice for 'the Renderers' which would appear to be the trade name for O & A Mahrbani, Lic. No. 111061C. That invoice, with the request for payment of $8,800 inclusive of GST, was faxed to Forcon via the facsimile machine of the defendants on 26 May 2003. According to Mr El Mahrbani and confirmed by Mrs Intisar El Dadoun, the wife of Mr Ghaleb El Dadoun, that invoice was sent by her utilising the partnership's facsimile machine. Mr El Mahrbani did not have a facsimile machine and he had called in to their home and asked her, as a favour, to fax it to Forcon, which she did. 106 The invoice forwarded to Forcon from Mr El Mahrbani in May 2003 did not indicate any measurement of the square metres of render that had been undertaken by him to support the payment of $8,800. Mr El Mahrbani was asked the basis on which he had issued that invoice. His evidence was thus: Q. How did you know to charge that amount of money? A. I spoke to Lui about the job and he said - Lui said to me, "Put the invoice in and I have to warn you that you won't get paid until after 25 days from putting the invoice." Meanwhile I had worked for seven to eight days before that. Well, I thought to myself, since I'm not going to get paid for another 25 days, by that time I may have worked $25,000 worth of rendering, that is why I put down on the invoice 8800. When Lui saw this invoice, which was worth 8800, he went back, behind my back, without telling me, he measured the job that I have done and according to his measurement rectified this invoice and put it down as 6534. 107 When Mr El Mahrbani's first invoice was received by Forcon, certain entries were made on the face of the document by Forcon personnel, setting out measurements of the amount of rendering undertaken. Relevantly, in my view, calculation of the payment to be made was based on the square metre rate for internal rendering set out in the agreement between Forcon and the defendants. When questioned about this, Mrs El Dadoun said it was 'coincidental'. Based on the measurement and the rate, a payment of $6,534 was approved to Mr El Mahrbani and was paid to him on 13 June 2003. 108 On the face of that document, Mr El Mahrbani was rendering an invoice for work performed by him and which was payable directly to him by Forcon. Mr Dean was asked about this invoice by Inspector Macready in June 2004 as follows: Q59: I am now going to show you a document dated 26/05/2003, marked for identification (DMAC8). Have you seen this document before? A: I probably have. Q60: Can you tell me what this document is? A: It's a cement rendering invoice from O & A Mahrbani addressed to Forcon Pty Ltd for work carried out at 2-6 Anglo Square, Carlton dated 26/5/2003. Q61: Was Omar El Mahrbani paid on the basis of this invoice only? A: No, I would find out the area that this invoice related to, measure the area and apply the square metre rate which was stated in the subcontract agreement which we had with Sydney G&F Cement Rendering. Q62: Were any quantities of actual rendering work completed by Omar El Mahrbani ever submitted by Omar El Mahrbani to Forcon Pty Ltd? A: I don't believe so. I believe the only quantities we received were from Sydney G&F Cement Rendering. Q63: Were all payments to Omar El Mahrbani made on the basis of instructions from Sydney G&F El-Dadoun Cement Rendering? A: Yes. 109 Further, in his evidence Mr Dean was asked the following: Q. If you hadn't been instructed by the Dadoun partnership to pay Mr Omar El Mahrbani but he had asked for some payment direct from you, would you have paid him? A. No. Q. Why is that? A. We had a subcontract agreement with Sydney G & F Dadoun, not Omar. 110 The next rendering of an account for work undertaken by Mr El Mahrbani is to be found in a tax invoice faxed to Forcon on 19 June 2003, again utilising the facsimile machine of the defendants. It is this tax invoice together with the accompanying letter signed by Mrs Intisar El Dadoun, the wife of Mr Ghaleb El Dadoun, that is the primary basis for the prosecution's assertion that Mr El Mahrbani was, at all times, part of the undertaking of the Dadoun partnership in performing the work they did at the Forcon site pursuant to their contractual agreement. 111 The tax invoice sent on 19 June 2003 was sent on behalf of Sydney G & F El Dadoun Cement Rendering with an ABN number quoted. The invoice then goes on to particularise the amount in square metres of internal and external rendering undertaken to support the total amount sought pursuant to the invoice. In short, the invoice identifies internal rendering of 1407.6 square metres at $12.10 per square metre, giving an amount owing for internal rendering of $17,031.96. The invoice also identifies external rendering of 319 square metres at a rate of $20.90 per square metre, giving a total of $6,667.10. Adding the two amounts of $17,031.96 and $6,667.10 together, the total sum of $23,699.06 for the work performed is stated as owing. For ease of understanding, a copy of that invoice is annexure A to this judgment. 112 The invoice further identifies a sum of $6,500 having been received, leaving a balance of $17,199 owing to Sydney G & F El Dadoun Cement Rendering. 113 On the face of the invoice, the amount stated as owing is payable to the Dadoun partnership. However, the accompanying letter addressed to Forcon, signed by Mrs Intisar El Dadoun, is instructive and, for the sake of clarity, is set out in full, with relevant notations, as follows: Fax No 9526 6988 19.06.03 (6 pg) Sydney G & F El-Dadoun Cement Rendering Ph: 0414 677 811 Ph & fax: 8725-4412 Attn: Forcon Pty Ltd RE: 2-6 Anglo Square, Carlton To whom it may concern This is to certify that I Mrs El-Dadoun have faxed you a copy of the invoice for Rendering work been done (not complete yet) at job site 2 - 6 Anglo St Carlton. Please Note The last invoice was made out for $8,800 and only received $6,500 in Omar El-Mahrbani: it's OK. Don't worry about the balance it's all in the new invoice with measurement as required. (Rendering not complete is not included in invoice). The invoice is straight forward. Also there is a round wall on the front towards the street which takes up three times thickness of cement. They spoke to Luigi and Luigi said it's OK . I have also faxed you a copy of the certificate of currency for worker's compensation and public liability. Please I wish $7,800 to be made out into OMAR EL-MAHRBANI name. And $9,399 into Sydney G & F El Dadoun Cement Rendering. If you need any information please do not hesitate to ring me on my direct no. 0401 278 460 or 8725 4412. Good bye for now. Regards Intisar El-Dadoun 114 A number of issues arise when considering the tax invoice earlier described together with Mrs El Dadoun's covering letter. The first is that on the tax invoice there is no differentiation or break up made to distinguish the work undertaken by the defendants as distinct from Mr El Mahrbani. The work performed by Mr El Mahrbani is included in the tax invoice rendered by the defendants. Further, when the total amount owing is calculated, adjustment is made for the amount of $6,500 already received. That $6,500 can only be the amount of $6,534 paid to Mr El Mahrbani when he rendered his invoice on 26 May 2003. 115 In short, the marrying of work performed by Mr El Mahrbani with work performed by the defendants points quite clearly, it is said, to the fact that Mr El Mahrbani's work was clearly part of the undertaking of the Dadoun partnership at the Forcon site. That interpretation is reinforced, it is said, by the wording of Mrs El Dadoun's letter in which she indicates that: The last invoice was made out for $8,800 and only received $6,500 in Omar El-Mahrbani: it's OK. Don't worry about the balance it's all in the new invoice with measurement as required. 116 Further, it is relevant to note that when the invoice was received by Forcon, an adjustment was made. The copy of the invoice received by Forcon (in exhibit 6) has a number of notations on it. The first is to the effect that the square metres of rendering claimed for in the invoice were 'checked by Luigi' and adjusted to 914 square metres of internal rendering and 271 square metres of external rendering - a difference overall of some 540 square metres from the original measurements quoted on the invoice. Utilising the adjusted figures and applying the same approach as Mrs El Dadoun, the balance owing would have been as follows: Internal rendering 914m2 x $12.10: 11,059.40 External rendering 271m2 x $20.90: 5,663.90 Total 16,723.30 Received 6,500.00 Balance 10,223.30 117 Notwithstanding the adjusted figures as set out above, Forcon paid $7,800 directly to Mr El Mahrbani as requested in Mrs El Dadoun's letter and $8,923.30 to the defendants. I am unable to come to any conclusion as to how the two amounts came to be paid given that the calculations at the bottom of Forcon's copy of the defendants' invoice of 19 June 2003 states a square metre difference of 540 and yet a dollar difference in ultimate payment of only $475.50. 118 For ease of understanding, a copy of that invoice is annexure B to this judgment. 119 In any event, what is clear is that Forcon did not pay the full amount as invoiced. And yet there would appear to have been no adjustment made to the amount of $7,800 paid to Mr El Mahrbani as initially requested by Mrs El Dadoun in her covering letter. As it was she who had completed the invoice, Mrs El Dadoun was asked about this apparent anomaly. Her evidence was somewhat unconvincing as follows: Q. I'd ask you to assume this is a copy of Forcon's record of getting that invoice. You can see that up the top, they seem to get it on June 19? A. Correct. Q. So you fax it, they've reworked it. This is a photocopy of the reworking; correct? A. Correct. Q. So square metres seems to be checked by Luigi. He's worked out different metres to what you've rendered but he's calculated, external and internal, the same square metres; you see that? A. Correct. Q. And down the side he says paid by two cheques, 7,200 to Omar El - well, it's obviously El Mahrbani; correct? A. Correct. Q. And that's what you asked him to do? A. Correct. Q. And then the balance went to Sydney G & F, right? A. Correct. Q. Now, there's no attempt by Forcon there to, in some way, work out what square metreage was done by Omar and what square metreage was done by G & F, is there? A. They've calculated it all another - so if I did the mistake they didn't even tell me what the mistake was. Q. All right. But what do you say should be the true position, that if Omar hadn't done as many square metres as he said, that should have come off hills 7,800? Is that what should have happened? A. I don't understand what you're saying. Q. Well, you see, your bill was rendering for internal. A. Right. Q. But you then only paid for 914, right? A. Right. Q. Now, if it was Omar who was in some way responsible for the 500 square metre shortfall, that would be coming off your 7,800, wouldn't it? A. Correct. Q. That's what should have happened? A. Maybe. Q. But he got 7,800; Sydney G & F got 8,923. If you turn over the page, in mid-July - 15 July as the cheque butts show - would that accord with your memory, you got paid a month after the bill was rendered? A. Correct. Q. Was there any attempt to go back to Omar and sort out with him whether he'd been overpaid because he hadn't done as much square - he hadn't rendered as much area as the bill said? A. This is not my business. I just wrote down what I understand. Q. I understand, but can you understand that question? Was any attempt ever made to Omar to go and square it up? A. I don't know. Q. Not to your knowledge? A. No. 120 The evidence of Mrs El Dadoun as well as that of Mr El Mahrbani was that the defendants, and Mrs El Dadoun on their behalf, were simply acting as a convenient conduit for the sending on of invoices for work performed by Mr El Mahrbani independent of the Dadoun partnership. It was said by Mrs El Dadoun and the two defendants as well as by Mr El Mahrbani that Mr El Mahrbani and the El Dadoun brothers were friends who knew each other, having been involved in the same type of business and being part of the same cultural circle. As Mrs El Dadoun described: A. They've known each other as friends, they've met at AMES, English language, and since then they've been only friends. 121 As the letter of Mrs El Dadoun to Forcon of 19 June confirms, in addition to the letter and the attached invoice, Mrs El Dadoun also faxed to Forcon a copy of the certificate of currency in relation to workers' compensation and public liability required by Forcon pursuant to the contractual agreement between it and the Dadoun partnership. On that date, Mrs El Dadoun also faxed to Forcon a separate tax invoice in Mr El Mahrbani's business name of 'The Renderers' indicating an amount owing for a second progress payment of $7,800. While there is no date on that invoice, there is a facsimile confirmation sheet confirming that a one page document was sent from Sydney G & F El Dadoun Cement Rendering to Forcon on 19 June 2003. The amount claimed by Mr El Mahrbani in that invoice is $7,800 but there is no detail as to metres of wall rendered to support the amount claimed. The only invoice that has such detail on it is the one sent by Mrs El Dadoun on behalf of the Dadoun partnership. 122 Mrs El Dadoun confirmed it was her handwriting on that invoice and explained that the information forming the basis of her calculations as to monies owed were obtained from Mr Carforio. When asked why she wrote the letter in the terms she did, her explanation was as follows: A. Okay. There was a big misunderstanding here. This about this invoice, I was doing 100 things at once, cooking, my son, the invoice and then Omar came over. When Omar came over I was making coffee. I gave them the coffee, they were sitting in the garage, and then my husband asked me, did you send that invoice, I go, no, I'm going to do it right away, then Omar popped up and requested, please, just mention the cheque, that I'm still waiting, and please ask them to make it into my name. I don't know, I know I did not notice there was a mistake and I did not notice that I put, mixed up everything into one page. I'll just give you a small example. It's just like making a stir-fry, I know this may be a stupid example in Court, but making a stir-fry when you're cooking the vegetables separate and then you're cooking the rice separate. I put the vegetables and rice together, mixed them together, put it on the table for others to eat. So, I do apologise for my misunderstanding from my husband, causing all this big trouble, and ... Q. Well, sorry, you wrote the information on the letter? A. Yes. Q. You wrote the letter on the tax invoices there? A. Yes. Q. And did Omar give you a tax invoice to send as well? A. Not at the same time, no. 123 In his evidence, Mr El Mahrbani confirmed the tenor of Mrs El Dadoun's evidence to the effect that any forwarding of tax invoices for amounts owing to him for work performed was done as a favour and at no time was the work he performed part of any business arrangement the Dadoun partnership had with Forcon. He had given Mrs El Dadoun a separate invoice for the second progress payment on 19 June which was sent separately and, as best as I can understand it, was unclear as to the way in which Mrs El Dadoun completed the tax invoice on that day in the way she did to reflect work performed by him as well as by the defendants. 124 When one considers the tax invoice sent to Forcon on 19 June 2003 by Mrs El Dadoun together with her accompanying letter, it is difficult to escape the conclusion that it is reflective of a relationship between the Dadoun partnership and Mr El Mahrbani to the effect that the work being undertaken by him was part of the defendants' contractual agreement with Forcon and, accordingly, part of the partnership's undertaking at that worksite. 125 While I accept it is perfectly understandable that Mr El Mahrbani utilised the facsimile facilities of the Dadoun partnership to send on his invoices for work performed, it is difficult to reconcile how that request was merged in such a comprehensive way in the tax invoice rendered on 19 June 2003 on behalf of the defendants. In other words, if Mrs El Dadoun was doing what she indicated she was asked to do, which was simply to forward Mr El Mahrbani's invoices onto Forcon, then that would have been, in my view, a stand alone action with no need on her part to merge the invoice for rendering in the way she did with no distinction as between Mr El Mahrbani and the defendants for the work performed. The only breakdown made was the request by Mrs El Dadoun that Forcon pay Mr El Mahrbani $7,800 direct with the balance to the defendants. 126 According to Mr Dean, the only basis on which the payment was made direct to Mr El Mahrbani was at the request of Mrs El Dadoun on behalf of the defendants. 127 Mr El Mahrbani's explanation that he utilised the services of the Dadoun partnership to fax the first invoice for work undertaken by him at the Forcon site because it was convenient for him to do so and would save him having to drive to the Forcon office at Miranda is, on one view, plausible. 128 If that was all that had been done, then I could not be satisfied beyond reasonable doubt that Mr El Mahrbani was part of the overall business undertaking of the Dadoun partnership pursuant to their contractual agreement with Forcon. However, that is simply not the position. The sending by Mrs Dadoun of the tax invoice on 16 June 2003 in the way in which she did, incorporating into the defendants' tax invoice work undertaken by Mr El Mahrbani without any separate identification for that work, is compelling as to the clear inference arising from it. That is, in submitting a tax invoice to Forcon, the Dadoun partnership was submitting an invoice for payment that, in totality, incorporated work performed by Mr El Mahrbani. 129 True it is, Mr El Mahrbani also had Mrs El Dadoun fax an invoice under his own business name on the same day for $7,800 which simply confirms what had been requested in Mrs El Dadoun's covering letter of 19 June 2003 set out above. 130 I do accept that Mrs El Dadoun is not a businesswoman and is relatively unfamiliar with the intricacies of business contracts. Having said that, it is all the more reason why, when Mr El Mahrbani gave her his invoice to forward to Forcon, she did not do exactly that rather than go through the process of incorporating his work into the defendants' invoice. In other words, if all Mrs El Dadoun was doing was a favour to Mr El Mahrbani by forwarding his invoice to Forcon, she would, in my view, have simply done exactly that and no more. 131 It is interesting to note that the invoices submitted by Mr El Mahrbani in May 2003 and again on 19 June 2003, give no detail as to the square metreage of rendering undertaken, either internally or externally. In relation to the first invoice of 26 May 2003, that calculation, which would be critical to determining the monies owed, was undertaken by Forcon and, even by Mr El Mahrbani's admission, by Mr Carforio. Mr Carforio stated that, at all times, any measurement he had done was always undertaken with Mr Ghaleb El Dadoun. No evidence was elicited from Mr El Mahrbani to the contrary and certainly the measurements stated in the invoice of 19 June 2003, given to Mrs El Dadoun by Mr Carforio, would support the view that what was being invoiced was all work having been undertaken by the Dadoun partnership, including by Mr El Mahrbani. 132 Having considered all the evidence in relation to this issue, I am satisfied, at the time Mr El Mahrbani commenced work at the Forcon site, he did so as part of the undertaking of the Dadoun partnership pursuant to their contractual agreement with Forcon and, while he was performing his cement rendering work, the Forcon site was the defendants' place of work. 133 The second point raised on behalf of the defendants is that, at the time of Mr El Mahrbani's accident on 1 October 2003, the Forcon worksite was no longer a place of work for the Dadoun partnership, they having left the site some time before. In short, it is said, work being undertaken by Mr El Mahrbani at that time was independent of the contractual agreement as between Forcon and the Dadoun partnership and he was working independently of them. 134 According to Mr El Mahrbani, after his initial work at the site he left and then, when requested, he went back to do further work. As he said: Q. Did Ghaleb and Fawaz start rendering at the time that you started rendering? A. No. Q. Did they start rendering after you? A. I think yes but I have to clarify something here, I just want tell you that I have done six units from the inside on that job; I had worked on six units - on the inside walls of six units and then I left the job and I went back when they called me to finish three more walls on that job site; so I was - I didn't go back to that job until I was called to finish three walls and a balcony on the ground floor and balcony on the unit 7. 135 According to both the defendants, they also left the Forcon site around the end of July and returned in September for approximately ten days. They then left the site again and went to a job at Wiley Park. Mr El Mahrbani remained working at the Forcon site. 136 As a general approach, the evidence discloses that the cement rendering work undertaken by the defendants and Mr El Mahrbani at the Forcon site was undertaken as and when required to be done. That is, Mr Carforio, amongst others on behalf of Forcon, would notify the defendants when there were walls, either internally or externally, requiring to be rendered. The subcontractors would then make their own arrangements to undertake that work. In other words, there was a degree of start/stop in the overall cement rendering work performed at the site. 137 As earlier stated, at the time of Mr El Mahrbani's accident, the defendants were no longer working at the Forcon site. There is evidence to infer the defendants still had some scaffolding on site and it was that scaffolding that was disassembled by Mr El Mahrbani some few days prior to his accident. On that point, as I have already indicated, I cannot be confident to the requisite standard. 138 What or what does not constitute a place of work has been the subject of consideration in early decisions of this Court, both at first instance and appellate level. Indeed, I have had cause to consider that issue in some detail, more particularly in my decision of WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited (2005) NSWIRComm 263 as follows: [14] I agree with counsel for the defendant that many authorities of this Court that have had cause to consider the question of an employer's 'place of work' have done so within the context as to whether or not the immediate environs of a 'place of work' were within the application of that expression as it is used in the Act. See, for example, Inspector Clark v W L Meinhardt & Partners Pty Limited (Unreported) Matter No's IRC 1212 and 1213 of 1990: 30 June 1992 at 12 where Fisher CJ, in considering 'place of work' in the circumstances then before him, said: With respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed. [15] The broad approach of Fisher CJ in Meinhardt was adopted by Peterson J in WorkCover Authority of New South Wales ( Inspector Page) v Woolworths Ltd (Unreported) NSWIR Comm 95: 9 September 1994. That broad approach, in my view, is encapsulated by the words of Fisher CJ in Meinhardt that a defendant's place of work 'includes every area which may be affected by the work being done'. [16] In Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales [2000] 102 IR 84 at 96 the Full Bench of the Court affirmed the broad construction of 'place of work' as determined by Fisher CJ and Peterson J in Meinhardt and Woolworths respectively. As they said at [51]: While each case will indeed be a question of fact, we consider that a broad construction of the term 'place of work' in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case. [17] Further, in Mainbrace the Full Bench quoted with approval the judgment of Hungerford J in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40. In that judgment, Hungerford J dealt with the proper approach to the construction of s 16 of the Occupational Health and Safety Act 1983 (the statutory predecessor to s 8(2) of the Occupational Health and Safety Act 2000). In doing so, his Honour referred to Butler v Fife Coal Co [1912] AC 149 at 178-179 where Lord Shaw said: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistent with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. [18] An analogous approach was taken by Isaacs J in Rice v Henley (1914) 19 CLR 19 at 22 where his Honour said: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language and the Act will reasonably permit. [19] Of more recent times in this Court, the meaning and application of 'place of work' has been considered in diverse factual circumstances. See, for example, WorkCover Authority of New South Wales (Inspector Webb) v Nowra Truck & Farm Equipment (Holdings) Pty Limited and ors [2003] NSWIRComm 340 where Boland J concluded that employees of the defendants were at a place of work when they were driving up a hill in the defendant's paddock counting cattle. [20] See also WorkCover Authority of New South Wales (Inspector Jorgenson) v Christopher John O'Keeffe and C J & S J O'Keeffe Building Pty Ltd (2004) NSWIRComm 397 where Haylen J, after considering all relevant authorities, determined that the footpath outside the relevant driveway and the roadway around it by which access was gained to the worksite was a place of work. [21] Finally, in WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock [2004] NSWIRComm 87 Walton J, Vice-President found that the defendant's articulated lorry was a 'place of work'. In his judgment, Walton J, Vice-President considered the decision of Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montoro Pty Limited (Unreported) CT 1218 of 1996: 19 December 1996 where his Honour dealt with the issue of place of work. In that case, the defendant Boral Montoro had contracted with A V Jennings Limited to supply and fix roof tiles on a new residence under construction. Boral Montoro sub-contracted the work to one of its regular sub-contractors G C & Meyne Roofing Pty Limited. The work was carried out without incident but without any fall restraint being provided. Boral Montoro was charged with an offence under s 16(1) of the Occupational Health and Safety Act 1983 to which it pleaded not guilty. [22] In defence of its position, counsel for Boral Montoro submitted, inter alia, that the mere existence of a contractual arrangement whereby persons are sub-contracted to undertake work would not demonstrate an undertaking or place of work of the defendant Boral Montoro. [23] In his judgment, Peterson J found against Boral Montoro. He found that the building site of A V Jennings Limited was the defendant's undertaking and place of work while the roof tiling work was being performed. In coming to that view, his Honour said: It seems to me this case is somewhat analogous to the elevator situation dealt with by Maidment J in the Boral Johns Perry Case . His Honour held that an elevator, in respect of which the defendant had a maintenance contract, was not the defendant's place of work while no maintenance work was being done thereon. In the same way the building site of Jennings would not be the place of work/undertaking of Boral Montoro except when the defendant is engaged in roof tiling work. I would so conclude. [24] What is clear from the judgment of Peterson J is that he considered both the concept of 'undertaking' and 'place of work' in his considerations. On one view, a reading of the judgment as to submissions made as well as his Honour's view is that the two expressions were used synonymously. In any event, his Honour determined, notwithstanding that Boral Montoro or its employees played no part in fixing the roof tiles, the work undertaken in that task by its sub-contractors was Boral's 'place of work/undertaking'. 139 At the time of Mr El Mahrbani's accident, the defendants still had a written agreement with Forcon. The evidence of Mr Forsyth, which I accept, is that as far as Forcon was concerned, the contractual agreement with the defendants was on foot at the time of Mr El Mahrbani's accident. His unchallenged evidence was that at the time of Mr El Mahrbani's accident, the cement rendering work was incomplete and, as a consequence, it was necessary for Forcon to go outside that contractual agreement and find other renderers to finalise the job. According to Mr Forsyth, after Mr El Mahrbani's accident, the defendants did not return to the Forcon worksite. 140 There is certainly no evidence to suggest the agreement between Forcon and the defendants had been terminated notwithstanding the stop/start nature of the job at the time of Mr El Mahrbani's accident. It is also apparent there was still rendering work to be done as the project progressed. 141 I have determined, pursuant to that contractual agreement, the defendants subcontracted part of their contractual work to Mr El Mahrbani. It seems to me, whilesoever that contractual agreement remained on foot, work being performed by Mr El Mahrbani on behalf of the defendants at the Forcon site tied the Dadoun partnership inextricably to the site as a place of work. In short, adopting the approach as exemplified by Petersen J in Boral Montoro, Forcon's building site was an undertaking and place of work for the Dadoun partnership whensoever Mr El Mahrbani was engaged in cement rendering work at the Forcon site. 142 That Mr El Mahrbani was still engaged on behalf of the Dadoun partnership at the time of his accident is supported, in my view, by the fact that on the day the accident occurred, Mr Ghaleb El Dadoun was told of it by Mr El Mahrbani's family. Later that day, as is evident from the photographs before me, Mr Ghaleb El Dadoun visited the worksite where the accident had occurred and took a number of photographs. His explanation was that he was simply passing by and stopped out of interest rather than anything to do with his ongoing involvement in the work being performed. I have to say, having looked at the photographs taken, I find his explanation somewhat implausible. If anything, the photographs taken by Mr Ghaleb El Dadoun are reflective of his continuing interest and involvement in the work being undertaken by Mr El Mahrbani at the project site and indicative of the ongoing undertaking that was in place between Forcon and the defendants. 143 Having regard to all of the above, I am satisfied that at the time of Mr El Mahrbani's accident, the Forcon worksite was a part of the defendants' undertaking and was, pursuant to their contractual agreement with Forcon, a place of work for them. The offence failures as particularised 144 I turn now to the substantive offence and, more particularly, the failures pleaded with respect to the defendants. 6(a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely. 145 I am satisfied this failure has been established. The circumstances in which Mr El Mahrbani was working at the time he fell from the balcony of unit 7, some 4.46 metres above the ground, clearly demanded that proper fall protection measures such as scaffolding be in place. As is evident, that was not the case. There was no scaffolding or any other form of adequate fall protection measure in place in order to prevent Mr El Mahrbani falling in the way he did. 6(b) The defendants failed to ensure that the conduct of the work was in accordance with the Safe Work Method Statement in force pursuant to the El Dadouns' contract with Forcon. 146 In the absence of any further particularisation as to what is being referred to as a failure by the defendants to conduct the work 'in accordance with the Safe Work Method Statement', it is not possible to come to any conclusion in relation to this alleged failure. No evidence was adduced as to what was being contemplated by that alleged failure except perhaps fall protection measures. That issue has been already caught by failure (a) as particularised. In short, it fails for lack of particularity and, for that reason, it is dismissed. 6(c) The defendants failed to properly assess the risk in relation to the work being performed and to identify the hazards associated with the performance of that work and to develop an appropriate control measure for it's conduct. 147 In my view, there is a clear element of duplicity in this alleged failure, particularly having regard to the failure identified in sub-paragraph (a) above. In other words, any assessment as to the risk in relation to the work being performed would have identified the need for a stable and securely fenced work platform to be in place and the way in which that would have been achieved would have been by the erection of scaffolding or similar fall protection measure. Accordingly, in my view, this failure is dismissed on the grounds of apparent duplicity. 6(d) The defendants failed to ensure that the requirements of the Occupational Health and Safety Regulation 2001, clause 56 were complied with in respect of the conduct of work which involved a risk of a fall from a height of more than two metres. 148 In the first instance, the provisions of clause 56 of the Occupational Health and Safety Regulation 2001 provides as follows: (1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures: (a) provision and maintenance of: (i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or (ii) if compliance with subparagraph (i) is not reasonably practicable - secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or (iii) if compliance with subparagraph (ii) is not reasonably practicable - other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres, (b) provision of a safe means of movement between different levels at the place of work. (2) If a fall arrest device is provided for use by persons at work, the employer must ensure that: (a) all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and (b) if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and (c) any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and (d) all persons using the device have received training in the selection, assembly and use of the system, and (e) adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device. 149 It is abundantly clear on the basis of the evidence that the defendants did fail to comply with the provisions of clause 56 of the Occupational Health and Safety Regulation 2001 as set out above. There was no scaffolding in place and the purported fall prevention measure that was allegedly in place was, on any view, as the photographs demonstrate, manifestly inadequate, having regard to the work being undertaken by Mr El Mahrbani some 4.46 metres above the ground. 150 Again, while I am satisfied this failure is established, it is clearly duplicitous having regard to the failure as pleaded and failure (a) above. Accordingly, it is dismissed. 7 The defendants failed to provide appropriate information, instruction, training and supervision in relation to the conduct of work involving the rendering of the straight edge above the top of the sliding door when it involved the workers standing on a platform approximately 500mm above the concrete balcony floor such as was necessary to ensure that risks to the health and safety of the worker were avoided. 151 I have to say I find the pleading of this alleged failure somewhat unclear. If it is being asserted that the defendants, given the circumstances in which Mr El Mahrbani was standing at the time, failed to take account of proper fall prevention measures then, in my view, that failure has already been pleaded, having regard to the failures identified in sub-paragraphs (a) and (d) above. That is, in all the circumstances, appropriate fall protection measures were not in place. However, to the extent that Mr El Mahrbani was not, on the evidence before me, provided with any information, instruction, training and supervision by the defendants in relation to proper fall prevention measures, then I would agree that the defendants did fail to provide to him any information, instruction or proper supervision that would enable him to be fully cognisant of the risks to safety that the work he was undertaking involved. Accordingly, I am satisfied that that failure, to the extent that it incorporates instruction, information and supervision in relation to fall protection measures, is established. 152 In summary, I am satisfied beyond reasonable doubt that, on 1 October 2003, the defendants failed to ensure that Mr El Mahrbani was not exposed to risks to his health and safety arising from the conduct of their undertaking contrary to s 9 of the Occupational Health and Safety Act 2000, particularly with respect to particularised failures 6(a) and 7 as pleaded. Defences arising under s 28 of the Act 153 Counsel for the defendants raised the issue of a defence under s 28(b) of the Act. Section 28 provides as follows: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 154 Having determined that the offence has been proved, the defendant bears the onus of establishing, on the balance of probabilities, that it can rely on one or other of the statutory defences provided under s 28 of the Act. 155 In my view, the defendants cannot rely on s 28(a) to discharge their liability for the respective offence for which they stand charged. In short, it was at all times reasonably practicable for them to have ensured that the necessary fall protection measures were in place in order to address the risk to safety that Mr El Mahrbani's work represented and to ensure he was given sufficient information and instruction in order to enable him to take the necessary steps to address the risk to safety that working at a height clearly represented. 156 Further, in relation to the defence arising under s 28(b) of the Act, I am not satisfied that the causes of Mr El Mahrbani's accident and particularly the risks to safety that his accident highlighted, was due to causes over which the defendants had no control. At all times, it was known to them that the work being undertaken by Mr El Mahrbani pursuant to their undertaking with Forcon involved working from heights and that scaffolding was a necessary prerequisite in order to undertake that work safely and as a necessary fall protection measure. It was at all times perfectly open to them and a matter over which they had control, to ensure scaffolding or a suitable fall protection measure was in place at all times when Mr El Mahrbani was working at heights. Nor was it impracticable at any time, on the evidence before me, for them to not make provision for that. Accordingly, I am not persuaded the defendants have established the defence available under s 28 (b) of the Act. 157 Accordingly, I find the offences proved with respect to particularised failures 6(a) and 7 as pleaded. 158 I will hear further from the parties as to sentencing and costs. =============================== 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. 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