Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20 Hearing dates: 24 February 2011 (written submissions 7 March 2011) Decision date: 14 March 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (1) The prosecutor's Notice of Motion in matters IRC 1015 and 1016 of 2009 is granted in each case. (2) The original Application for Order in each case is amended in accordance with the proposed Amended. Application for Order annexed to the Affidavit of Ms Ramya Kumari Panagoda sworn on 13 May 2010 in support of the prosecutor's Notice of Motion in each case. (3) The prosecutor is to file and serve the Amended Application for Order in each case within seven (7) days of this judgment. (4) The costs of the Notices of Motion are to be costs in the substantive prosecution proceedings. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1), s 8(2) - proceedings against corporation and director - demolition work involving single storey dwelling - risk of falling from roof - alleged failures to provide safe access to roof, fall protection, information, instruction and training and supervision - pleas of guilty entered prior to High Court judgment in "Kirk" - based on "Kirk" requirements defendants file Notices of Motion seeking to withdraw pleas - prosecutor's Notice of Motion to amend each Application for Order by providing greater particularity of defendants' acts and/or omissions and description of risk - original Application for Order found to be valid charge - nature of charges sought by way of amendment found to be appropriate for inclusion in Application for Order - prosecutor's motion granted - Amended Applications for Order allowed - Costs considered Legislation Cited: Criminal Procedure Act 1986 Div 4 Pt 5 of Ch 4 s 16 s 16(2) s 20 s 21 s 257C(1) s 257F Industrial Relations Act 1996 s 168 s 170 s 170(2)(b) Occupational Health and Safety Act 2000 s 8(1) s 26(1) s 28 Cases Cited: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 Inspector Duncan v Mainbrace Constructions (NSW) Pty Ltd and anor [2011] NSWIRComm 8 Inspector Hamilton v John Holland Pty Ltd (2009) 180 IR 262 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v The Industrial Relations Commission and ors (2010) 239 CLR 531 Morrison v Chevally (2010) 198 IR 30 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 Romanis v Sibraa [1977] 2 NSWLR 264 Category: Interlocutory applications Parties: Inspector Steven Nikolovski (Prosecutor) Peter Bakhos (Defendant) City Civil Pty Ltd (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr A Britt of counsel (Defendants) Criminal Law Practice Legal Group WorkCover Authority of NSW (Prosecutor) K P O'Donnell & Associates (Defendants) File Number(s): IRC 1015 of 2009 IRC 1016 of 2009