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 Judgment 1In July 2009 WorkCover Inspector Steven Nikolovski commenced proceedings before the Industrial Court against City Civil Pty Ltd ("City Civil") alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 and also alleging a breach of s 8(1), by operation of s 26(1) of the Act, against Mr Peter Bakhos ("Mr Bakhos"), being a director of the corporation. The two defendants, at all material times, were alleged to be involved in the demolition of structures, excavation and asbestos removal. Each prosecution alleged that, in late August 2007 at a worksite in Eastwood, there was a failure to maintain a safe system of work for working at heights during the demolition of a single storey domestic dwelling. 2On 3 December 2009 each defendant entered a plea of guilty to the charges as particularised and later that month a sentence hearing was set down for early July 2010. That sentence hearing was vacated in light of the decision of the High Court in Kirk v The Industrial Relations Commission and ors (2010) 239 CLR 531 (" Kirk" ). In late April 2010 each defendant filed a Notice of Motion seeking to be allowed to withdraw their plea of guilty and to enter a plea of not guilty following what was regarded as significant changes to the law highlighted in the Kirk judgment. While in terms not seeking to strike out each prosecution, the Affidavit in Support of each Notice of Motion asserted that the originating process was defective in failing to identify the measures that the defendants could have taken. It followed that the defendants could not be guilty of the charges as pleaded. By mid-May 2010, Inspector Nikolovski had filed a Notice of Motion in each matter seeking leave to amend the particulars of the Application for Order due to the recent Kirk decision and the "need for greater particularity" in referring to the defendant's acts or omissions that constituted the offence. 3By August 2010 the parties had agreed that the matter should be adjourned until the Court of Appeal had delivered its judgment in John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 "John Holland"), a judgment that was delivered in December 2010. 4At the request of the parties, the prosecutor's Notices of Motion were listed for hearing in February 2011 with the defendants' Notices of Motion held in abeyance. At the opening of the hearing on the prosecutor's Notice of Motion counsel for the defendants informed the Court that his instructions were that, in the event that the Court was to grant the prosecution motion, the defendants would seek leave to withdraw their motion. It was accepted that would then leave the guilty plea unaltered but that there might be an issue as to whether the charges had changed and consideration may have to be given to whether or not all of the newly framed particulars in the Amended Application for Order were covered by the earlier plea of guilty or whether some other course might be warranted. 5In relation to the original Applications for Order and Statements of Offence, the defendants maintained their contention that those initiating proceedings filed by the prosecutor did not meet the requirements of the Kirk judgment. It was acknowledged, however, that if the Court found against that argument then it was accepted that the prosector had a power to amend, either under the provisions of s 16, s 20 and s 21 of the Criminal Procedure Act 1986, and/or under s 170 of the Industrial Relations Act 1996. If the Court got to that point and the proceedings in each matter were amended, then the defendants would seek a costs order in their favour because these additional proceedings arose directly from the prosecutor's failure to properly state and particularise the charge as required by the Kirk judgment. 6In order to fully understand the nature of the argument, the original Application for Order relating to City Civil appears as Annexure "A", the supporting affidavit of the Inspector is Annexure "B" and the proposed Amended Application for Order appears as Annexure "C" to this judgment. In view of the similarity in the pleadings, it is unnecessary to annex the same documents in relation to the director, Mr Bakhos. It might be noted at this point that, when the parties were discussing an Agreed Statement of Facts after pleas of guilty had been entered, they were primarily working upon the contents of the Inspector's affidavit: that task was not completed having regard to the fact that the Kirk issue had arisen and Notices of Motion had been filed by each party. 7The facts necessary for the determination of these Notices of Motion may be shortly stated. As already indicated, City Civil was in the business of demolition of structures, excavation and asbestos removal. The corporation was contracted by the owners of the Eastwood site to demolish a single story domestic dwelling and a detached garage on that site. City Civil engaged Mr Korie to undertake work associated with the demolition and on what appears to be Mr Korie's first day of actual work on the site, he was involved with others in the demolition of the dwelling. One of the workers placed a ladder against an internal manhole in the bathroom of the dwelling and entered the roof space. That worker removed roof tiles to provide access to the roof. The external exit from the manhole was located close to the edge of the dwelling, near a driveway. The worker gained access to the roof and moved towards the ridge capping at the roof peak and removed tiles along the way and down towards the back of the dwelling to the flat corrugated iron roof of the extension at the rear of the dwelling. The worker then proceeded to crawl up to the peak of the roof and removed the ridge capping and one row of tiles. The worker called Mr Korie to come onto the roof. Mr Korie was seen to climb the ladder and then to climb from the manhole in the bathroom area out through the roof access void that the other worker had created and Mr Korie had done so to approximately chest height. The worker turned around to attach his own safety harness with a retractable lanyard to an anchor point on the ridge capping at the apex of the roof and he then turned back moments later but Mr Korie was no longer on the roof. He then saw Mr Korie lying on the ground. No other person had seen Mr Korie fall from the roof. As a consequence of his injuries, Mr Korie died six days after the accident. 8The particulars in relation to each defendant were substantially the same. In summary those particulars of a breach of s 8(1) of the Act were as follows: there was an unsafe system of work when working at heights; * there was a failure to provide safe access to a single storey roof of a dwelling that was being demolished; * there was a failure to ensure adequate fall protection for employees accessing the roof and to ensure that they were not at risk of falling from height; * there was inadequate information, instruction and training regarding safe working at heights and safe access to the roof; * there was a failure of adequate supervision whilst working at heights; * there was a failure to ensure employees working at heights had adequate experience, training and skills to perform demolition work, and in particular working at heights, prior to being allowed to work on site. 9It is also appropriate to note that, in October 2009, the Inspector had responded to the defendants' request for further and better particulars in which, inter alia, the following matters were stated: * the charge was that access to the roof was unsafe; * the access was too close to the edge of the roof to enable safe access, especially in circumstances where the roof was sloping and appropriate anchor points were not available; * provision of harnesses in circumstances where they were not secured when workers were in proximity to the edge of the roof represented inadequate fall prevention/protection measures; * the corporation provided information that instructed employees to attach themselves to secure anchor points in circumstances where they were exposed to risk of falling before they could be anchored; * authorised demolition supervisors were not on site; * the worker, Mr Korie, had no experience in demolition. He had worked in unrelated roles as a tyre fitter and cleaner and no attempt was made to verify what, if any, experience, training and skills he had in relation to demolition work. 10The following paras of the Inspector's affidavit in support of the Application for Order provided each defendant with the following information: [27] - the system of work in use in relation to fall prevention while working at heights at the site was to use a safety harness and retractable lanyard system attached to a point of the ridge capping at the apex of the roof; [28] - Mr Korie was not attached to a secure anchor point while he was accessing the roof or whilst he was on the roof; [32] - the Safe Work Method Statement, the Risk Assessment and Safety Plan identified the need for the defendants' employees to be attached to a secure anchor point while accessing or while on the roof, however, employees were exposed to the risk of falling from heights between leaving the roof access point and reaching the anchor points; [35] - at the time Mr Korie was being instructed and shown how to attach his harness, the site supervisor was approximately three metres away finalising paperwork and did not hear the conversation between the instructing worker and Mr Korie - thereby the qualified supervisor did not participate in the instruction and demonstration provided to Mr Korie of how to use the harness; [36] - the corporate defendant relied solely upon information from Mr Korie as to his construction and demolition work experience in Greece prior to his arrival in Australia and did not undertake any other enquiries to ensure he had relevant training and experience before engaging in demolition work; [37] - at no time did the site supervisor inspect the roof to ascertain if it was safe for employees to obtain access to the roof and the site supervisor did not know if there was a safe anchor point on the roof; [38] - the defendant director and another supervisor were not at the site while the demolition work was being carried out on the day of the incident and did not inspect the roof at the site or undertake a Risk Assessment. 11Adopting the approach set out by the Full Bench in Inspector Hamilton v John Holland Pty Ltd (2009) 180 IR 262 and in Morrison v Chevally (2010) 198 IR 30 and the judgment of the Court of Appeal in John Holland , the substance of the charge in each case having regard to the particulars specified in the Application for Order, the further particulars supplied to the defendants, the Affidavit in Support of the Application for Order and by inference from those documents, was as follows: * the risk alleged was that of falling from height in the performance of demolition work on a single storey building; * the measures required to be adopted by the defendants, which they failed to adopt were - the provision of safe access to the roof that was not too close to the edge, especially where the roof was sloping and the need for appropriate anchor points; the provision of fall protection equipment secured, especially when working in proximity to the edge of the roof; the provision of information, instruction and training regarding safe access to the roof and the use of fall protection equipment having regard to the measures identified; the provision of supervision to ensure safe access to the roof, the availability of fall protection equipment and the use of fall protection equipment having regard to the measures identified; enforcing a prohibition on allowing inexperienced employees to work at height without ensuring that they had adequate experience, skill and training to perform demolition work at heights having regard to the measures identified. 12The Court as presently constituted has recently been required to consider similar issues of validity regarding the originating process in circumstances where a guilty plea had been entered before the judgment in Kirk had been delivered. After the High Court's judgment the defendant in Inspector Duncan v Mainbrace Constructions (NSW) Pty Ltd and anor [2011] NSWIRComm 8 sought an order that the charge be dismissed because of invalidity. In dealing with that challenge, the Court stated at [57]: While it cannot be doubted that there is a requirement for some precision in criminal proceedings, (per Kirby J in Walsh v Tattersall (1996) 188 CLR at 110 et seq) Kirk does not stand for the proposition that all proper and reasonable particulars must appear in the initiating process otherwise it will be invalid. The authorities referred to in Kirk and analysed with other authorities in Inspector Hamilton v John Holland Pty Ltd and in Morrison v Chevally stand as authority for these propositions: * firstly, that the statement of offence must set out the "nature" of the alleged offence; * secondly, particulars may be supplied after the initiating process has been filed and served; * thirdly, the particulars necessary to indicate "the nature" of the alleged offence are not the same as the extensive particulars that might otherwise be given on a request for further and better particulars; * fourthly, the "nature" of the case may be further exposed to the defendant by reference to the affidavit of the Inspector filed with * the initiating proceedings; * fifthly, the acts or omissions alleged against the defendant may be inferred from the nature of the charge and the particulars supplied. 13The submissions for the defendants claimed that the original charges were "too general" and did not sufficiently state the act or omission alleged against the defendants. It was submitted that the statement of offence did not provide "the requisite detail" of the act or omission alleged. These complaints overlook the following considerations: (a) in Kirk at para [30] the High Court stated that the matter should not have proceeded "without further particularisation of the acts and omissions said to found the charges" - clearly accepting that, even in the paucity of particulars found in the Kirk pleadings, further particulars could have and should have been provided; (b) in Johnson v Miller (1937) 59 CLR 467, Evatt J at 497-8 referred to the court possessing inherent authority to "require that particulars of a charge should be furnished"; (c) in John Holland the Court of Appeal accepted that the pleadings containing the words "adequately " or "sufficiently" did not fail because of lack of specification of measures but may give rise to an application for further and better parties. These statements indicate that the mere use of general words in pleadings will not require the prosecution to be set aside or treated as a nullity. To the extent that the particulars contained in the charge were generally expressed relating to the manner of the defendants acts and/or omissions, such defects were curable by amendment ( Johnson v Miller per Dixon J at 486; Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 per Basten JA at [109]; the Full Bench in Inspector Hamilton at [72] - [74]. 14In the course of submissions the defendants argued by analogy with the particulars considered in Kirk and in Inspector Hamilton v John Holland Pty Ltd. In Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240, Basten JA at para [49] stated that care had to be taken when relying upon supposedly analogous factual situations in a higher court as giving rise to a precedent rather than the precedent being found in the legal principle to be applied in assessing such facts. In dealing with the issue of validity and adequacy of the statement of offence in these proceedings, the Court has had regard, therefore, to issues of principle derived from recent authorities rather than attempting to judge adequacy by analogy. 15Having regard to the analysis appearing in para [11], against the matters referred to in paras [8], [9] and [10], the Court is satisfied that the requirements of the Kirk judgment were met in relation to the initiating process. At the time the guilty plea was entered the defendants were informed of the nature of the case they had to meet and were in a position to consider the availability of the defences open under 28 of the Act. This was a straightforward case of a fall risk with the requirement that anchor points and harnesses be used to provide safe access to the roof and sloping areas and that the access be not close to the edge of the roof and that there be information, instruction, training and supervision regarding these measures. So pleaded, there may well have been an application for further particulars but that event could not lead to invalidity of the initiating process (see John Holland at paras [78], [79], [118], [137] and [141]. 16It is then necessary to consider the prosecutor's proposed amendments. In summary, the prosecutor's A mended Application for Order provides the following particulars: * The risk to employees of the defendant was falling from the roof of a single storey domestic dwelling to the ground approximately 3 - 4 metres below while they were accessing the roof and/or undertaking work of demolishing the roof of the dwelling; * in failing to provide and maintain a safe system of work for accessing the roof and/or undertaking the work of demolishing the roof, the defendants failed to undertake the following measures: (i) selecting a location for the roof access point that was more than two metres from the unprotected leading edge of the roof; (ii) the selection of a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof; (iii) the provision of a safe anchor point for employees to attach a retractable lanyard and harness located at the roof access point; (iv) requiring that its employees wear fall arrest devices, secured to an appropriate anchor point, prior to proceeding from the roof access point on to the roof of the dwelling; (v) requiring employees to wait at the internal exit of the roof access point until their retractable lanyard and harness had been attached to the anchor points at the apex of the roof; (vi) the provision of roof rails or scaffolding around the leading edge of the roof whilst employees were accessing the roof and/or undertaking the work of demolishing the roof; and (vii) the provision of mobile scaffolding or an elevated work platform or similar equipment for employees whilst undertaking the work of demolishing the roof of the dwelling. These matters were essentially repeated (to the extent that they were relevant) in relation to the failure to provide adequate information, instruction and training, the failure to ensure adequate supervision of employees while working at heights and the failure to ensure that employees working at heights had adequate experience, training and skills to perform work associated with demolition work. 17Having regard to the initial Applications for Order, it is appropriate to consider the nature of the different matters mentioned in the proposed Amended Application for Order and to assess their degree of difference. In this regard the following may be noted: * the risk identified in the original Application for Order remains the risk of falling from height in the performance of demolition work in the Amended Application for Order. The primary difference is the specification of the fall as being three or four metres, in itself consistent with a fall from a single storey dwelling house and the further specification of where the work was taking place by reference to the need to obtain access to the roof as well as demolishing the roof; * in relation to the measures to be taken, the following might be said - re (i) the previously pleaded requirement for the need for safe access to the roof has been expanded to specify that the location of the roof access point was to be more than two metres from the unprotected leading edge of the roof and to that extent, specifies the measure with greater particularity; re (ii) the previously specified requirement for providing safe access to the roof is expanded by reference to the selection of a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof and, therefore, is a more specific particularisation of the earlier identified measure; re (iii) the previous measure of providing safe access to the roof is expanded to involve providing a safe anchor point to attach a retractable lanyard and harness located at the roof access point and, thereby, provides more specific information in relation to this alleged breach; re (iv) the original Application for Order specified the requirement to provide fall protection equipment and that the supervisor should ensure the proper use of fall protection equipment - this particular now expands that requirement to specify how fall arrest devices were to be secured to an appropriate anchor point prior to proceeding from the roof access point on to the roof and thus is an expansion of what was originally pleaded; re (v) the original Application for Order identified the measures of providing safe access to the roof, providing fall protection while working at heights and the provision of supervision to ensure that employees obtained safe access and were properly using their fall protection equipment. This particular is expanded to require employees to wait at the internal exit of the roof access point until their retractable lanyard and harness is attached to the anchor points at the apex of the roof and thereby provides further specification of the previously identified measure; re (vi) the previous particulars requiring the provision of safe access to the roof and the provision of fall protection while working on the roof is now expanded to include the provision of roof rails or scaffolding around the leading edge of the roof while employers are accessing the roof or undertaking the work of demolishing the roof and, thereby, provides further and new specification of the measures previously identified; re (vii) the original application in requiring the provision of fall protection equipment has been expanded in the Amended Application to include the provision of mobile scaffolding or an elevated work platform or similar equipment for use by employees while working on the demolition of the roof and, to that extent, may be regarded as a new specified measure. 18For reasons already alluded to, it is unnecessary to undertake the same comparative exercise in relation to the particulars dealing with adequate information, instruction and training and the provision of adequate supervision but in broad terms it may be stated that they expand on measures previously identified and to a limited degree, may specify new measures. Having regard to the above analysis, the first point to note is that the Amended Application is not so different to the original Applications for Order as to constitute a totally new charge. Indeed, the defendants accept that each proposed Amended Application for Order does not constitute a new charge while noting that there are substantial differences. To the extent that there are differences, they are the type of expanded particulars that might have been supplied following a request for further and better particulars in light of the Kirk judgment. The second matter to note is that the original charge specified the essential legal and factual elements of a charge brought under s 8(1) of the Act: that conclusion is also supported by the above analysis and the application of the judgments of the Full Bench and the Court of Appeal in John Holland , in relation to the Amended Application. 19The role of particulars in the charge was succinctly dealt with in Kirk at para [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) , it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged". 20That paragraph of the judgment in Kirk refers to identifying the essential factual ingredients of the offence and the substance of the charge but noting that those facts do not need to be as extensive as those a defendant might obtain on an application for particulars. That proposition was supported by a passage appearing in De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, noting that De Romanis was also referred to with approval in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 408 at 520 . The passage in De Romanis referred to in Kirk states: The significance of this rule for present purposes is that it goes to the sufficiency in law of the information. It appears not to be merely a part of the principle under which a defendant, properly charged, is entitled to such particulars of the charge as will enable him properly to prepare his defence: Johnson v. Miller. That principle may warrant an adjournment to allow such particulars to be given and, if they are not given, a dismissal of the information on that ground. But the rule here in question goes to the sufficiency in law of the information. In Smith v. Moody , the case most frequently cited in this regard, a person had been charged with wrongfully injuring the property of another, the charge not specifying which property was in question. It was held that the conviction, based upon such an information, was bad, even though Lord Alverstone C.J. had "very little doubt that actual injury to the respondent's property was proved". The case has been cited to support the view that "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence": Ex parte Lovell; Re Buckley ; and, in Smith v.Moody the conviction upon such an information was quashed upon case stated. No verbal formula has been adopted which enable the contents of an information to be determined for this purpose. In Johnson v. Miller Dixon J. saw the decision in Smith v. Moody as requiring the information to specify "the time, place, and manner of the defendant's acts or omissions"; McTiernan J. referred to "fair information and reasonable particularity as to the nature of the offence charged". The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason. 21It should be understood that the provision of further and better particulars does not automatically result in those particulars becoming part of the charge. The primary purpose of such further and better particulars is to better inform the defendants of the measures that should have been taken and to allow them to consider, not only what plea should be entered but whether they may have a statutory defence to the charge. 22Although the expanded particulars in the Amended Application for Order may have been supplied by the prosecutor in response for a request for further and better particulars, they are of such a nature that, even if they had come into existence in that way, it might properly have led to an application made at the commencement of the proceedings for the statement of charge itself to be amended to reflect the better particularisation of the charge. Having regard to the requirements of procedural fairness to be accorded to a defendant in order that a defendant may be able to properly exercise its rights in relation to the statutory defences found in s 28 of the Act, it is preferable that these expanded and more specific particulars should appear by way of amendment in the statement of charge. That course is supported by s 16(2) of the Criminal Procedure Act and/or s 170 of the Industrial Relations Act . It is for those reasons that the prosecutor's Notice of Motion is granted and the Application for Order in each case is amended in accordance with the Amended Application for Order annexed to the affidavit of Ramya Kumari Panagoda in her Affidavit in Support of the Notice of Motion. Having regard to the nature of the amendments, the prosecutor should file and serve the Amended Applications for Order within seven days of the date of this judgment. 23Having reached these conclusions it is then necessary to consider the defendants' applications for costs. In essence the argument for costs is based upon the premise that the defendants have been required to unnecessarily participate in these proceedings primarily because of the prosecutor's failure to properly particularise the charge. The situation, however, is a little more complicated than suggested by the defendants. The defendants had entered a guilty plea and thereby had acknowledged the existence of the essential elements of the charge. It is understandable that the Kirk judgment prompted a re-think of that position and may well have warranted the filing of the Notices of Motion challenging the validity of the originating processes but by the time the Full Benches in Inspector Holland and Chevally had delivered extensive reasons in relation to the validity of initiating processes under the Act and then the Court of Appeal in John Holland had delivered its judgment, the need for reassessment of the Notices of Motion regarding validity should have been obvious to the defendants. While it is true that the defendants' motion on validity was technically held in abeyance, it was made clear that in dealing with the prosecutor's application to amend the particulars, that validity was a live issue. Faced with that position the Court has dealt with the issue of validity and the propositions argued for in the defendant's written submissions have not been accepted. Further, the defendants indicated that, should the prosecutor's motion succeed, they would maintain the pleas of guilty and would not press their outstanding Notice of Motion challenging validity. Specifically, the defendants accepted that the Amended Application for Order in each matter did not constitute a new charge and that no issue arose concerning the jurisdiction of the Court to amend the particulars. In those circumstances the most appropriate course is to treat the costs of the Notice of Motion as costs in the substantive prosecution proceedings. 24The Court received brief written submissions from the prosecutor in relation to the availability of costs on a motion in occupational health and safety prosecutions. It was submitted for the prosecutor that s 168 of the Industrial Relations Act brought into operation Div 4 of Pt 5 of Ch 4 of the Criminal Procedure Act for such proceedings. While s 257F of the Criminal Procedure Act permitted a costs order where a matter was adjourned, s 257C(1) specified the circumstances in which the prosecutor should pay costs, namely, at the end of proceedings where the matter was dismissed or withdrawn. The prosecutor's written submissions then dealt with the application of s 170(2)(b) of the Industrial Relations Act regarding the costs of an amendment. While there is force in the submission for the prosecutor that s 170(2)(b) is not able to operate contrary to the provisions of s 168(4) and the provisions of the Criminal Procedure Act , it is unnecessary to finally determine that question in light of the course ultimately to be adopted in relation to costs. That issue, however, may remain a live issue in different circumstances. The defendants, ultimately, did not contest the prosecutor's submissions as to the unavailability of costs on these amendments. ORDERS For the above stated reasons the Court makes the following orders: (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. ********** ANNEXURE "A" BEFORE THE INDUSTRIAL COURT OF NEW SOUTH WALES No IRC of 2009 INSPECTOR STEVEN NIKOLOVSKI Prosecutor -v- CITY CIVIL PTY LTD [ACN 118 275 344] Defendant PROSECUTION PURSUANT TO SECTION 8(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000 APPLICATION FOR ORDER Filed by: WorkCover Authority of NSW Contact Name: William Steenson Legal Group, WorkCover NSW 2000 Level 1, 60-70 Elizabeth Street, SYDNEY NSW 2000 DX 731 SYDNEY Tel: (02) 8258 7100 Fax: (02) 9221 4036 I, Steven Nikolovski of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth St, Sydney, in the State on New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter allege that City Civil Pty Ltd [ACN 118 275 344], ("defendant") a corporation with its registered office at NFS & Accounting Pty Ltd located at Unit 13, 338-340 Darling Street, Balmain in the State of New South Wales, being an employer, on 21 August 2007, at 60 Denistone Road, Eastwood in the State of New South Wales ("site") FAILED TO: Ensure the health, safety and welfare at work of all its employees, and in particular, Lewis Korie and Elya Elia , contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) The defendant failed to provide and maintain a safe system of work for working at heights at the site. (b) The defendant failed to provide and maintain, for its employees, safe access to the roof of the single storey domestic dwelling being demolished at the site ("dwelling"). (c) The defendant failed to ensure adequate fall protection for employees accessing the roof of the dwelling to ensure that they were not at risk of falling from height. (d) The defendant failed to provide adequate information, instruction and training to its employees with respect to safe working at heights, including safe access to the roof of the dwelling. (e) The defendant failed to ensure that there was adequate supervision of its employees whilst working at heights including whilst accessing the roof of the dwelling. (f) The defendant failed to ensure that its employees working at height had adequate experience, training and skills to perform work associated with demolition work, in particular, working at heights prior to allowing them to undertake this work at the site. As a result of the abovementioned failures, Lewis Korie and Elya Elia were placed at risk of injury. As a result of the abovementioned failures, Lewis Korie was fatally injured. AND I hereby apply for the issue of an order under section 170(3)(b) and section 246(1)(a) of the Criminal Procedure Act 1986 and section 168 of the Industrial Relations Act 1996 requiring the defendant to appear before the Industrial Court of New South Wales in answer to the said charge. My affidavit providing further details and verifying the allegations made in this application is attached. ANNEXURE "B " BEFORE THE INDUSTRIAL COURT OF NEW SOUTH WALES No IRC of 2009 INSPECTOR STEVEN NIKOLOVSKI Prosecutor -v- CITY CIVIL PTY LTD[ACN 118 275 344] Defendant PROSECUTION PURSUANT TO SECTION 8(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000 AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER Deponent: Steven Nikolovski Sworn: 14 July 2009 Filed by: WorkCover Authority of NSW Contact Name: William Steenson Legal Group, WorkCover NSW Level 1,60-70 Elizabeth Street SYDNEY NSW 2000 DX 731 SYDNEY Tel: (02) 8258 7100 Fax: (02) 9221 4036 On 14 July 2009, I, Inspector Steven Nikolovski, of the WorkCover Authority of New South Wales, 60-70 Elizabeth Street, Sydney in the State on New South Wales make oath and say as follows: 1. I am an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. I seek to bring proceedings against City Civil Pty Ltd [ACN 118 275 344], a corporation with its registered office at C/- NFS & Accounting Pty Ltd located at Unit 13, 338-340 Darling Street, Balmain in the State of New South Wales ("City Civil"). 3. I make this affidavit from information and knowledge that I have acquired during my investigation of an incident, which occurred at 60 Denistone Road, Eastwood in the State of New South Wales on 21 August 2007. 4. The alleged offence is as follows: The defendant, being an employer, on 21 August 2007, at 60 Denistone Road, Eastwood in the State of New South Wales ("site") failed to ensure the health, safety and welfare at work of all its employees, and in particular, Lewis Korie and Elya Elia, contrary to section 8(1) of the Act. The particulars of the charge are: (a) The defendant failed to provide and maintain a safe system of work for working at heights at the site. (b) The defendant failed to provide and maintain, for its employees, safe access to the roof of the single storey domestic dwelling being demolished at the site ("dwelling"). (c) The defendant failed to ensure adequate fall protection for employees accessing the roof of the dwelling to ensure that they were not at risk of falling from height. (d) The defendant failed to provide adequate information, instruction and training to its employees with respect to safe working at heights, including safe access to the roof of the dwelling. (e) The defendant failed to ensure that there was adequate supervision of its employees whilst working at heights, including whilst accessing the roof of the dwelling. (f) The defendant failed to ensure that its employees working at height had adequate experience, training and skills to perform work associated with demolition work, in particular, working at heights prior to allowing them to undertake this work at the site. As a result of the abovementioned failures, Lewis Korie and Elya Elia were placed at risk of injury. As a result of the abovementioned failures, Lewis Korie was fatally injured. Background 5. At all material times, City Civil's undertaking included the demolition of structures, excavation and asbestos removal. 6. City Civil currently holds, and held at the time of the incident, a restricted (class DE2) demolition licence number 204443DE2. Pursuant to clause 325 of the Occupational Health and Safety Regulation 2001, it is a condition of a licence that, during the carrying out of the licensed work, a person holding appropriate qualifications in relation to the licensed work (whether or not the holder of the licence) must supervise the carrying out of the work. 7. The nominated supervisors for City Civil listed on its demolition licence at the date of the incident were Peter Bakhos and Anthony Khoury. 8. At all material times, City Civil was contracted by the owners of the site, Mr and Mrs Peter Collis, to demolish the structures on the site - a single storey domestic dwelling and a detached garage.' 9. At all material times, City Civil employed Mr Lewis Korie (date of birth: 5 September 1981). 10. Mr Korie was engaged by City Civil to undertake work associated with demolition. Mr Korie commenced employment with City Civil on 20 August 2007, being the day before the incident. However, Mr Korie did not undertake any demolition work at the site on 20 August 2007 due to the wet weather. Mr Korie commenced work at the site on 21 August 2007, being the date of the incident. 11. At all material times, City Civil also employed: (a) Peter Bakhos, as a working Director. (b) Kevin Hanna, as a Labourer. (c) Elya Elia, as a Leading Hand. Mr Elia was also designated as the Occupational Health and Safety Consultant. (d) Joshua Bakhos, as a Site Supervisor. However, Joshua Bakhos was not nominated as a supervisor for the purposes of demolition work on City Civil's demolition licence. (e) Anthony Khoury as a Supervisor, nominated for the purposes of demolition work on City Civil's demolition licence. The Incident 12. At the commencement of City Civil's work, the site at 60 Denistone Road, Eastwood comprised: - a brick dwelling house with a peaked tiled roof and a rear section with a flat section of metal roofing (approximately 4.5 metres wide); - a detached garage; the garage was to the left of the house (when viewed from Denistone Road) and was separate and set back from the dwelling; and - a driveway, which ran from the street to the detached garage. 13. The detached garage was demolished by City Civil on or about 17 August 2007. 14. City Civil had commenced demolition work on the dwelling house on 20 August 2007 (the day before the incident). That work had involved the internal 'strip out' of the dwelling. Mr Korie was not present at the site on that day. 15. Between approximately 6:40am and 7:00 am on 21 August 2007, Mr Korie, Mr Elia, Mr Hanna and Mr Joshua Bakhos arrived at the site to undertake demolition work on the dwelling. 16. On the morning of 21 August 2007, Mr Elia placed a ladder against an internal manhole in the bathroom of the dwelling and entered the roof space. Mr Elia then removed the roof tiles to provide an access to the roof. The external exit of the manhole was located close to the edge of the dwelling, on the driveway side. Mr Elia stated that when he was on the roof, he moved upward towards the ridge capping at the roof peak and removed tiles along the way and down towards the back of the dwelling to the flat corrugated iron roof of the extension at the rear of the dwelling. Mr Elia then proceeded to crawl up to the peak of the roof and removed the ridge capping and one row of tiles. 17. Mr Elia subsequently called Mr Korie to come up onto the roof. Mr Elia saw Mr Korie climb up the ladder and proceed to climb from the manhole in the bathroom area out through the roof access void that Mr Elia had created to about chest height. 18. Mr Elia states that he (Elia) then turned around to attach his own safety harness to an anchor point on the ridge capping at the apex of the roof, with a retractable lanyard and when he turned around moments later, Mr Korie was not on the roof. 19. Mr Elia called out 'Lewis' and saw Mr Korie lying on the ground. 20. No one saw Mr Korie fall off the roof. It appears that between approximately 7:20am and 7:36am on 21 August 2007, Mr Korie fell from the roof of the dwelling to the ground. 21. Upon realising that Mr Korie had fallen, Mr Elia called out to other workers that "Lewis is on the floor". Mr Elia then climbed down from the roof. During this time, Mr Hanna and Mr Joshua Bakhos, who were both already at ground level, ran to Mr Korie's assistance. Mr Hanna subsequently ran to Ryde Hospital - across the road from the site - while Joshua Bakhos rang for an ambulance. 22. Mr Elia approached Mr Korie and saw that he was trying to get up. Mr Elia and Joshua Bahkos attempted to stabilise Mr Korie to prevent him from getting up until the ambulance arrived. 23. The ambulance also attended the scene of the incident at approximately 7:44am and attended to Mr Korie. Mr Korie was then transported to Royal North Shore Hospital and arrived at approximately 8:20am. 24. At the Royal North Shore Hospital, Mr Korie was diagnosed with traumatic head injury and fractured ribs. 25. As a consequence of his injuries, Mr Korie died six days after the incident on 27 August 2007 at 6:40pm at the Royal North Shore Hospital. 26. On 28 August 2007, Inspector Nikolovski attended the site to do an inspection. At the time of the inspection, the dwelling was fully demolished. The system of working at heights and fall protection systems prior to the incident 27. According to City Civil, the system of work in relation to fall prevention whilst working at heights at the site was to use a safety harness and retractable lanyard system attached to a point on the ridge capping at the apex of the roof. 28. Mr Korie was not attached to a secure anchor point while he was accessing the roof or whilst he was on the roof. Information, instruction, training and supervision 29. City Civil's Site Induction form was signed by all those who were present at the site on the day of the incident, including Mr Korie. 30. City Civil's Safe Work Method Statement and Risk Assessment was signed and dated by all those who were present at the site on the day of the incident, including Mr Korie. 31. City Civil's Safety Plan for demolition work contained a Risk Assessment Part 1 & 2, which was also signed and dated by all those who were present at the site on the day of the incident, including Mr Korie. This document was signed by Peter Bakhos and dated 21 August 2007. However, Peter Bakhos was not on the site on 21 August 2007 at the time this document was apparently discussed with workers. Peter Bakhos states that he signed this document after the incident. 32. The Safe Work Method Statement, Risk Assessment and Safety Plan identified the need for City Civil's employees to be attached to a secure anchor point while they were accessing or on the roof, but employees were exposed to the risk of falling from heights between leaving the roof access and reaching the anchor points. 33. Prior to commencing work on the day of the incident, Mr Elia stated he conducted a toolbox talk and a safety walk around the dwelling to identify hazards and safe working procedures. 34. Mr Elia states that he showed Mr Korie how to use the safety harness by grabbing the lanyard and a piece of timber and wrapping it around then locking it in. 35. At the time Mr Elia was apparently showing Mr Korie how to attach the harness, Joshua Bakhos, the site supervisor, was approximately 3 metres away finalising paperwork and did not hear the conversation between Mr Elia and Mr Korie. 36. City Civil relied solely upon information from Mr Korie as to his construction and demolition work experience in Greece prior to his arrival in Australia and did not undertake any other inquiries to ensure he had relevant training and experience before engaging him in demolition work. 37. At no time did Joshua Bakhos inspect the roof at the site to ascertain if it was safe for employees to access the roof. Joshua Bakhos also did not know if there was a safe anchor point on the roof. 38. Peter Bakhos and Anthony Khoury were not at the site while the demolition work was being carried out on the date of the incident and did not inspect the roof at the site or undertake a risk assessment. The system of working at heights following the incident 39. Following the incident, City Civil has not changed its systems of work in relation to fall prevention for working at heights, in particular on single storey residential premises. That is, City Civil continues to use harnesses and lanyards whilst undertaking demolition work on single storey residential dwellings, rather than using more effective control measures where appropriate, such as edge protection. ANNEXURE "C" BEFORE THE INDUSTRIAL COURT OF NEW SOUTH WALES No IRC of 2009 INSPECTOR STEVEN NIKOLOVSKI Prosecutor -v- CITY CIVIL PTY LTD [ACN 118 275 344] Defendant PROSECUTION PURSUANT TO SECTION 8(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000 AMENDED APPLICATION FOR ORDER Filed by: WorkCover Authority of NSW Contact Name: Ramya Panagoda Legal Group, WorkCover NSW Level 1, 60-70 Elizabeth Street SYDNEY NSW 2000 DX 731 SYDNEY Tel: (02) 8258 7100 Fax: (02) 9221 4036 I, Steven Nikolovski of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth St, Sydney, in the State on New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter allege that City Civil Pty Ltd [ACN 118 275 344], ("defendant") a corporation with its registered office at NFS & Accounting Pty Ltd located at Unit 13, 338-340 Darling Street, Balmain in the State of New South Wales, being an employer, on 21 August 2007, at 60 Denistone Road, Eastwood in the State of New South Wales ("site") FAILED by its acts or omissions as particularised below, to ensure the health, safety and welfare at work of all its employees, and in particular, Lewis Korie and Elya Elia, contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: The particulars of Risk are : (a) The 'risk' of employees of the defendant, and in particular Mr Korie and Mr Elia, of falling from the roof of a single storey domestic dwelling ("dwelling") at the site to the ground approximately 3 to 4 metres below, whilst they were accessing the roof and/or undertaking the work of demolishing the roof of the dwelling. The particulars of the acts of omissions in failing to eliminate the risk are that : (b) The defendant failed to provide and maintain a safe system of work for accessing the roof and/or undertaking the work of demolishing the roof of the dwelling at the site, in that it failed to undertake measures as follows: (i) the selection of a location for the roof access point that was located at a point in the roof that was more than 2 metres from the unprotected leading edge of the roof; (ii) the selection of a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof; (iii) the provision of a safe anchor point for employees to attach a retractable lanyard and harness located at the roof access point; (iv) requiring that its employees wear fall arrest devices which were secured to an appropriate anchor point, prior to proceeding from the roof access point onto the roof of the dwelling; (v) requiring employees to wait at the internal exit of the roof access point until their retractable lanyard and harness had been attached to the anchor points at the apex of the roof; (vi) the provision of roof rails or scaffolding around the leading edge of the roof whilst employees were accessing the roof and/or undertaking the work of demolishing the roof; (vii) the provision of mobile scaffolding, or an elevated work platform or similar equipment for use by employees, whilst undertaking the work of demolishing the roof of the dwelling; (c) The defendant failed to provide adequate information, instruction and training to its employees with respect to safe working at heights, including safe access to the roof of the dwelling, in that it failed to undertake measures as follows: (i) identifying in a Safe Work Method Statement, and in a Risk Assessment and Safety Plan, that employees were exposed to the risk of falling from height once they accessed the roof from the roof access point; (ii) providing Mr Elia and Mr Korie with information and instruction that they should select a location for the roof access point that was located at a point in the roof that was more than 2 metres from the unprotected leading edge of the roof; (iii) providing Mr Elia and Mr Korie with information and instruction that they should select a location for the roof access point that was not on a sloping part of the roof immediately adjacent to the unprotected edge of the roof; (iv) providing Mr Elia and Mr Korie with information and instruction that they should identify a safe anchor point located at the roof access point for the attachment of a retractable lanyard and harness prior attaching to the anchor points at the apex of the roof; (v) providing Mr Elia and Mr Korie with information and instruction that they needed to be attached to a secure anchor point while they were accessing or working on the roof; (vi) providing Mr Elia and Mr Korie with training in identifying a secure anchor point while they were accessing or working on the roof; (d) The defendant failed to ensure that there was adequate supervision of its employees whilst working at heights including whilst accessing the roof of the dwelling, in that it failed to undertake measures as follows: (i) requiring that a supervisor, nominated or authorised under the defendant's Demolition licence, undertake an inspection of the roof of the dwelling to ascertain if it was safe for employees to access the roof; (ii) requiring that a supervisor, nominated or authorised under the defendant's Demolition licence, undertake an inspection of the roof of the dwelling to ascertain the location a safe anchor point on the roof to anchor a lanyard and harnesses system; . (e) The defendant failed to ensure that its employees working at height had adequate experience, training and skills to perform work associated with demolition work, in particular, working at heights prior to allowing them to undertake work at the site, in that it failed to undertake measures as follows: (i) failing to require Mr Korie to provide evidence as to his prior construction work experience in Greece; (ii) failing to undertake any other enquiries to ensure that Mr Korie had relevant training and experience before engaging him in demolition work; As a result of the abovementioned failures, Lewis Korie and Elya Elia were placed at risk of injury. As a result of the abovementioned failures, Lewis Korie was fatally injured. The injuries sustained by Lewis Korie were a manifestation of that risk . AND I hereby apply for the issue of an order under section 170(3)(b) and section 246(1)(a) of the Criminal Procedure Act 1986 and section 168 of the Industrial Relations Act 1996 requiring the defendant to appear before the Industrial Court of New South Wales in answer to the said charge. My affidavit detailing and verifying the allegations made in this application was filed on 14 July 2009. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2011