Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 Hearing dates: 29 March 2011 Decision date: 11 April 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant is found guilty of the charge brought against him and convicted accordingly. 2) The defendant is to pay a monetary penalty of $25,000 with a moiety thereof to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - undefended proceedings - Court to consider whether any evidence adduced in the earlier proceedings would enable it to consider the availability of any defence under s 26 - defence not available to defendant - defendant found guilty - appropriate penalty - objective seriousness - serious breach - relative culpability - general and specific deterrence - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(1), s 26 Cases Cited: Inspector Nicholson v Ibrahim [2011] NSWIRComm 39 Inspector Nicholson v Mackey [2010] NSWIRComm 159 Inspector Nicholson v Nahed [2011] NSWIRComm 41 Inspector Nicholson v Pymble No 1 & Molinara [2010] NSWIRComm 151 Inspector Nicholson v Sawmaa [2011] NSWIRComm 38 Category: Principal judgment Parties: Inspector Anthony Nicholson (Prosecutor) Phillip Mackey (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) No appearance for defendant Legal Group, WorkCover Authority of New South Wales (Prosecutor) File Number(s): IRC 625 of 2009 Judgment 1As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter. AVAILABILITY OF DEFENCE UNDER S 26(1)(a) AND (b) 2In these proceedings, I delivered judgment on 22 November 2010 in which I found that the prosecutor had established a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by NT Prestressing Pty Ltd ("NT"), such breach being that which was alleged in the application for order filed by the prosecutor, as particularised therein. Furthermore, I found that the defendant in these proceedings, Phillip Mackey, was a director at all relevant times of NT and that, prima facie, he would be found guilty of a breach of s 8(1) of the Act by reason of the application of s 26(1) of the Act. All of these matters are referred to in my earlier judgment, Inspector Nicholson v Mackey [2010] NSWIRComm 159. 3In my earlier judgment, I gave the prosecutor an opportunity of making submissions about whether there was any evidence given in the proceedings that would enable the Court to consider the availability of any defence under s 26(1)(a) or (b) of the Act. In order for any such defence to be available to the defendant, the Court would need to be satisfied on the civil onus that he was not in a position to influence the conduct of NT in relation to its contravention of s 8(1) of the Act or, if he were in such a position, he used all due diligence to prevent the contravention by NT. 4As I indicated in my earlier judgment, the defendant has not participated in any way in the proceedings. All of the available evidence that might touch upon the applicability of any defence under s 26(1)(a) or (b) is that which was contained within the prosecution case, and to which I referred in my earlier judgment. 5I should state at the outset that there is no evidence of any kind as to any diligence used by the defendant to prevent the contravention by NT and that there is no basis for finding that the defence under s 26(1)(b) is available to him. 6This leaves for consideration determination as to whether there was any evidence that the defendant was not in a position to influence the conduct of NT in relation to its contravention of the provision. The evidence that might arguably touch upon the availability of this defence was given by Mr Power to the effect that to his knowledge the defendant did not reside in Australia and, secondly, his understanding that the defendant had no day-to-day involvement in the operations of NT. 7In written submissions, the prosecutor dealt with this evidence. It was pointed out that, firstly, the defendant was the sole director of NT and that, prima facie, he had a great deal of control over its activities. Furthermore, it was stressed that the evidence that was available to the Court was within a very narrow compass, it would not allow the Court to conclude that the defendant had not involved himself in any way in the conduct of the affairs of NT and there was simply no evidence about any lack of influence on the part of the defendant himself, whether from within Australia, if he had visited Australia from time to time, or from outside Australia by the several means of communication available to him. 8Having reconsidered the evidence given in the proceedings and the submissions of the prosecutor, I am of the opinion that there is no evidence that would allow the Court to conclude that there was any defence available to the defendant under s 26(1)(a) of the Act. In circumstances where the defendant has not participated in any way in the proceedings and has thereby chosen not to adduce any evidence, the state of the evidence does not allow the Court to be satisfied that he was not in a position to influence the conduct of NT in relation to its contravention of s 8(1) of the Act, which is the subject of these proceedings. CONVICTION 9It follows from the findings which I have made as expressed in my earlier judgment and from the determination which I have made above, excluding the application of any defence under s 26(1), that the defendant should be found guilty of the offence with which he is charged and convicted accordingly. PENALTY 10This leaves for consideration the determination of an appropriate penalty. The starting point is the objective seriousness of the offence. This is, prima facie, the objective seriousness of the breach by NT of s 8(1) of the Act. There are no reasons why, on the state of the evidence, the culpability of the defendant should not equate with the culpability of NT in terms of an assessment of the objective seriousness of the offence. 11The breach by NT of its obligations under s 8(1) was summarised by me in [27] of the earlier judgment in the following terms: [27] On the evidence, it may be concluded that there was a failure by NT to conduct an adequate risk assessment with respect to the particular construction site, that there was a failure to provide any adequate fall prevention system as noted, that there was a failure to provide and maintain a safe system of work at the premises, that no adequate site specific induction training about working at heights had been carried out, that there had been a failure to provide adequate information, instruction or training to the two employees with respect to working at heights and a failure to provide adequate supervision. Furthermore, it has been established that the employees concerned were Messrs Stewart and Morris. 12In all the circumstances, it must be considered that the breach was a most serious one. The only mitigating factors were that, firstly, the safety on the site was under the overall control of the supervisor who I conclude, on the basis of the evidence given in the proceedings, acted on behalf of the principal contractor and, secondly, that there is evidence that the employees of NT on some occasions refused to carry out work in circumstances which were clearly unsafe. 13Nevertheless, the fact that primary responsibility for the provision of a safe work environment may have rested, in contractual terms, on the principal contractor does not exculpate a subcontractor from its responsibilities under the Act in failing to provide an appropriate and effective fall restraint system for persons whom it employed or arranged to perform work on the building site. I would, however, assess the culpability of NT and thus of the defendant as something less than that of the principal contractor, Millennium Projects Australia Group Pty Ltd. 14In determining penalty, it is also necessary to take into account the deterrent effect that any penalty will provide both generally within the construction industry and specifically in terms of this defendant. There is simply no evidence concerning the defendant's activities. Given, however, that he appears to be substantially resident in Hong Kong, it may be assumed that there may be some minimally reduced need to consider the deterrent effect in terms of this particular defendant. On the other hand, there is no reason why a director resident out of New South Wales may not continue to exercise influence over the activities of a corporation carrying on business in New South Wales. On balance, I shall have regard to specific deterrence when assessing penalty. 15There is simply no evidence that would enable the Court to consider any subjective factors in favour of the defendant in terms of mitigation. No plea of guilty has been entered, the defendant has not participated in any way in the proceedings, there is no evidence concerning co-operation with the prosecutor, and there is no evidence of any expression of contrition or remorse. 16The maximum penalty applicable to this defendant is the sum of $55,000. Having regard to the matters to which I have referred, I am of the opinion that an appropriate penalty is $25,000. The prosecutor sought orders for the payment of costs and a moiety and there is no reason why I should not accede to this request. ORDERS 17I make the following orders: 1) The defendant is found guilty of the charge brought against him and convicted accordingly. 2) The defendant is to pay a monetary penalty of $25,000 with a moiety thereof to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. ********** 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: 11 April 2011