Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 Hearing dates: 23 March 2011 Decision date: 29 March 2011 Jurisdiction: Industrial Relations Commission in Court Session Before: Haylen J Decision: The orders of the Court are as follows: (a) the Notices of Motion filed by the defendants are dismissed; (b) costs in the Notices of Motion are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 8(2) s 26 - collapse of formwork during construction of water reservoir - two workers receive fatal injuries and three workers receive serious injuries - pleas of guilty entered by all defendants - decision of High Court in Kirk v Industrial Relations Commission & ors (2010) 239 CLR 531 causes prosecutor to file Notices of Motion seeking to amend Applications for Order to add greater particularity in relation to alleged acts and/or omissions of defendants - defendants file Notice of Motion challenging validity of charges - defendants allege relevant risk not identified or pleaded - particulars challenged as not complying with requirements of Kirk judgment - defendants' Notices of Motion dismissed - distinction between statement of offence that fails to specify legal elements of offence and where essential factual particulars not given - where legal elements specified but not essential factual matters proceedings not invalid - statement of offence in each case specified legal elements of offence - requirement for greater particularity of factual matters - requirement to allege a risk to health and safety as part of legal elements does not require the risk to be particularised other than as a factual ingredient in an offence - Notices of Motion seeking amendment by prosecutor adjourned. Legislation Cited: Clean Waters Act 1970 s 16(1) Criminal Procedure Act 1986 s 16 s 246(1) Industrial Relations Act 1996 s 170 Industrial Relations Commission Rules 1996 r 217B Occupational Health and Safety Act 2000 s 8(1) s 8(2) s 26 Occupational Health and Safety Regulation 2001 cl 233 Pesticide Act 1978 Cases Cited: Downey v Acting District Court Judge Boulton (No 5) (2010) 272 ALR 705 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2002) 54 NSWLR 39 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Category: Interlocutory applications Parties: Inspector Childs (Prosecutor) Paul Bortolo Serena (Defendant in 08/ 1447; 08/1453; 08/1454); Walter John Anzolin (Defendant in 08/1448); Area Concrete Pumping Pty Ltd (Defendant in 08/1449; 08/1450); Christopher Anthony Woods (Defendant in 08/1451; 08/1452) Representation: Counsel: Mr Cahill of counsel - Prosecutor Mr Scott of counsel (Defendants in 08/1449; 08/1450; 08/1451; 08/1452) Mr Bradley of counsel (Defendants in 08/1447; 08/1448; 08/1453; 08/1454) Solicitors: Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) John F Morrissey & Company, Lawyers (Defendants in 08/1449; 08/1450; 08/1451; 08/1452) Macken & Vardanega, Solicitors (Defendants in 08/1447; 08/1448; 08/1453; 08/1454) File Number(s): IRC 1447 - 1454 of 2008