State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33

Industrial Relations Commission New South Wales Medium Neutral Citation: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33 Hearing dates: 16, 17, 18, 19 August 2010, 14 October 2010; Written submissions: 17 January 2011 Decision date: 01 April 2011 Jurisdiction: Industrial Court of NSW Before: Boland P, Walton VP, Staff J Decision: (1) The appeal in Matter Nos IRC 1390 and IRC 1391 of 2006 is dismissed. (2) In Matter No IRC 1391 of 2006 the appellant is convicted of the offence and fined an amount of $200,000. (3) In Matter No IRC 1390 of 2006 the appellant is convicted of the offence and fined an amount of $160,000. (4) The appeal in Matter No IRC 1392 of 2006 is upheld and the judgment and orders of Schmidt J in that Matter are set aside. (5) The stay orders of Boland J, President made on 30 July 2009 are dissolved. (6) The appellant is to file and serve submissions on costs within 14 days of the date of this judgment and the respondent shall have a further 14 days in which to respond. Unless the parties wish to be heard orally on costs, the question shall be determined on the papers. Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY - Public sector - Juvenile detention centre - Psychological injury to teaching staff - Challenge to jurisdiction - Whether the three charges under s 8(1) of the Occupational Health and Safety Act 2000 pleaded an identifiable risk to health and safety - Whether the charges were defective in substance and form and did not particularise properly the acts and omissions said to found the charges - Whether the charges pleaded the measures the defendant should have taken to avoid the risk to health and safety - Whether the trial judge was in error in determining that teaching staff were at risk of, or suffered psychological injury - Whether the trial judge misconstrued, in the determination of liability and penalty, the obligations imposed upon an employer pursuant to s 8(1) of the Occupational Health and Safety Act 2000 and in particular the obligations imposed on the defendant as an employer in relation to the risk arising from the acts and omissions - Whether the trial judge erred in determining that there was a causative link established between the particularised acts and omissions in and the risk alleged in each of the charges - Whether the trial judge misconstrued the statutory defences in determining that the defences were not made out - Whether the trial judge misconstrued the principles to be taken into account in the determination of penalty in each of the charges and as a result the penalty imposed was manifestly excessive - Consideration of Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 - Appeal upheld in respect of one charge as a consequence of an invalid charge - Appeal dismissed in respect of remaining two charges - Resentencing of defendant - Costs reserved Legislation Cited: Children (Detention Centres) Act 1987 Consumer Protection Act 1969 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Supreme Court (Summary Jurisdiction) Act 1967 Cases Cited: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 A Crim R 481 Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 Inspector Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; (2004) 136 IR 449 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 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 Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Johnson v Miller [1937] HCA 77; (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] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 Makarian v R [2005] HCA 25; (2005) 228 CLR 357 Narayan v Inspector Chamings [2007] NSWIRComm 281; (2007) 169 IR 414 Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 R v Hamzy (1994) 74 A Crim R 341 R v Holder [1983] 3 NSWLR 245 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Stanton v Abernathy (1990) 19 NSWLR 656 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill [2009] NSWIRComm 122 State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 Texts Cited: "Occupational Wellbeing and Performance: a Review of Organisational Health Research", Australian Psychologist, 38(1), 2003, pp 118-127, Cotton P and Hart P M "Developing an Optimal Organisational Climate: Towards Australia's Safest Workplaces 11 Conference Paper", March 2004, Canberra, Cotton P "Work related stress and Depressive Disorders" published in the Journal of Psychosomatic Research 51 (2001) at pp 697-704, Professor Tennant Category: Principal judgment Parties: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (Appellant) John Joseph Cahill (Respondent) Representation: J V Agius SC with W G Thompson of counsel (Appellant) B G Docking of counsel (Respondent) Crown Solicitor's Office (Appellant) W G McNally Jones Staff (Respondent) File Number(s): IRC 1072 of 2009 Decision under appeal Citation: Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 2) [2008] NSWIRComm 246 Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97 Before: Schmidt J File Number(s): IRC 1390 of 2006 IRC 1391 of 2006 IRC 1392 of 2006