Inspector Maynard v Byrne Group Management Pty Ltd [2011] NSWIRComm 72

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Maynard v Byrne Group Management Pty Ltd [2011] NSWIRComm 72 Hearing dates: 12 May 2011 Decision date: 25 May 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1. The defendant, Byrne Group Management Pty Ltd, is found guilty of the offence with which it is charged and convicted accordingly. 2. I impose a monetary penalty of $100,000 with a moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor in an amount assessed in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 - early guilty plea - appropriate penalty - inadequate safety procedures and risk assessment - good corporate citizen - objective seriousness - serious breach - general deterrence - specific deterrence - commitment to occupational health and safety - remorse and contrition - no prior convictions - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(1) Category: Principal judgment Parties: Inspector Jason Maynard of WorkCover Authority of New South Wales (Prosecutor) Byrne Group Management Pty Ltd (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr R Bellamy of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) Ledlin Partners Solicitors (Defendant) File Number(s): IRC 956 of 2010

Judgment 1The prosecutor, Inspector Jason Maynard of the WorkCover Authority of New South Wales, has charged the defendant, Byrne Group Management Pty Ltd, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The defendant has pleaded guilty and this judgment concerns penalty only. 2The proceedings are constituted by an application for order. The defendant is charged that being an employer on 2 September 2008 at premises situated at Wagga Wagga, New South Wales, it: 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, Lian Rong Xia and Liao You Quan, contrary to section 8(1) of the Occupational Health and Safety Act 2000.Particulars of the charge are: The risk was: (a)The risk of objects falling through the gap of approximately 220mm, between the working edge of the upper work platform and the working face of the trailer under construction, and striking employees working below, particularly Lian Rong Xia and Liao You Quan. Mr Lian's death was a manifestation of the risk. The particulars of the defendant's acts or omissions in failing to eliminate the risk and to ensure the safety of its employees are that: (b)The defendant failed to take the following measures to ensure that there was a safe system of work for carrying out the task of constructing trailers at the premises that was safe and without risks to health: (i)The defendant did not prevent employees from working above other employees when building multi deck trailers. (ii)The defendant did not prevent employees from accessing or working under the work platform whilst other employees were working from the work platform; (iii)The defendant did not prevent employees from placing objects outside the confines of the work platform, in particular unsecured steel beams, such as the one which struck Mr Lian; (iv)The defendant did not ensure that employees wore personal protective equipment, such as hard hats when constructing trailers. (c)The defendant failed to have in place a physical barrier so as to ensure that the gap between the working edge of the work platform and the working face of the trailer under construction would not allow objects to be able to fall through the gap and strike persons working below. (d)The defendant failed to ensure that a risk assessment was conducted to identify any hazards or hazard control measures associated with the risk of: (i)Objects falling through the gap between the working edge of the work platform and the working face of the trailer under construction and striking persons working below. (ii)Persons working above other employees when building multi deck trailers; (iii)Employees accessing or working under the work platform whilst other employees were working from the work platform; (iv)Placing objects outside the confines of the work platform, in particular unsecured steel beams which could fall and strike persons below; (v)Working without personal protective equipment, such as hard hats, when there was a risk of falling objects striking employees. (e)The defendant failed to take the following measures to provide adequate information, instruction and training to employees: (i)Engage a qualified interpreter so as to ensure that employees with limited English language skills understood instructions, particularly when commencing work in another section of the premises; (ii)Instruct employees not to work above other employees when building multi deck trailers; (iii)Instruct employees not to access or work under the work platform whilst other employees were working from the work platform; (iv)Instruct employees not to place objects outside the confines of the work platform, in particular the unsecured steel beam which struck Mr Lian; (v)Instruct employees to wear personal protective equipment, such as hard hats when constructing trailers. (f)The defendant failed to provide supervision to employees engaged in the task of task of constructing trailers by not having a person present designated with the responsibility of directing employees not to: (i)Work above other employees when building multi deck trailers; (ii)Access or work under the work platform whilst other employees were working from the work platform; (iii)Place objects outside the confines of the work platform, such as the unsecured steel beam of the type that struck Mr Lian. (iv)Omit to use personal protective equipment, such as hard hats, when there was a risk of falling objects striking employees. As a result of the defendant's failures and omissions, employees and in particular Lian Rong Xia and Liao You Quan were placed at risk of serious injury or death, and Lian Rong Xia was fatally injured. 3By its plea of guilty, the defendant has admitted the particulars of the charge. 4All of the evidence in the proceedings was given in documentary form. 5The defendant operated the business of manufacturing and marketing road trailers, waste transport trailers and equipment on behalf of the partnership. The principal shareholder and controlling director of the defendant at the time of the incident that gave rise to these proceedings was Mick Byrne. His sons were at that time also involved in the business operations. 6At the time of the incident, the defendant had in place an occupational health and safety management system managed by the general manager, who was one of Mr Byrne's sons. Included amongst the defendant's senior personnel was a human resource manager. 7A number of employees were recruited from China under the 457 visa program initiated by the Australian Government. Included within this group of employees was Lian Rong Xia ("Mr Lian"), who was a qualified welder with approximately 12 years experience and Liao You Quan ("Mr Liao"), who was also a qualified welder with approximately 10 years experience in China. There were a number of other Chinese nationals also so employed. 8The circumstances surrounding the incident and that which occurred after the incident were described in the agreed statement of facts in the following terms: The Incident [13] During the week of 25 to 29 August 2008 a series of standing management meetings were held by the defendant with employees. At these meetings, reallocation and rotation of employees was finalised and an organisational chart was developed. Employees were to be rotated to different sections of the factory at intervals so that they could be multi skilled. One purpose of this was so that employees would be able to work in different sections (for example, if a section was falling behind, other employees would be able to work to assist in clearing any back log). As a result of this Mr Lian was moved to the 'sub rails' section of the factory. Following the management meetings, Mr Davis made changes to the organisational chart and Mr Lian was moved to the 'standing' section of the workshop. [14] The manufacturing part of the factory had five sections. Three were manufacturing sections. The first of these manufactured the frames on the trailers and was known as the 'main frames' section. The second section was the 'components' section which manufactured gates, hinges and latches. The third section was the 'sub rails' section which manufactured wheels, axles, and undercarriages. The fourth section was known as the 'standing' section where the frames and components were assembled the frames and components. The fifth section was the 'all under' section which put all the pieces together to create a finished product that can be painted and fitted out. [15] Outside the manufacturing part of the factory there was a paint shop and a finishing shed. The finishing shed attended to fitting items such as lighting, tool boxes, fuel tanks, wiring and performing wheel alignments. [16] The 'standing section' consisted of three standing jigs with a gantry on each side of each jig. (A 'standing jig' is a metal framed jig that is used to stand and weld the manufactured components of stock crates / cattle trailers. A 'gantry' is a working platform incorporated within the standing jig.) 'Production line 3', also known as 'standing jig 3' was on the western side of the workshop and had two metal-framed mobile working platforms, known as gantries', approximately 3 metres apart. The standing jig working platforms are approximately 12.5 metres in length and 900mm wide. The working platforms can be raised or lowered (by chain blocks at the northern and southern ends) to allow work at different heights. Once the working platform is at the working height, locks at the end of the working platform are locked in place. Mounted chain blocks (also known as endless chains) were attached to the standing jigs and used to lift components into place for welding. [17] The standing jig was used to stand the manufactured components of livestock crates or cattle trailers. The components are erected from the ground up between the two adjustable working platforms. Cattle trailers and livestock crates are constructed in the standing jig, using schematic engineering drawings and work instructions. The work instruction set out a 48-step process for constructing the cattle trailers. As a manufacturer specialising in cattle trailers and associated items, Mr Byrne had developed the process of assembling a cattle trailer over 35 years. [18] The process of constructing a trailer included the following: Reading and understanding specification sheets Cleaning down jig Marking out the cross member lay out Standing the frames as per drawing Stringing line the frames, monitoring for straightness Tacking in frames and fitting temporary bracing to hold frames in position Tacking down the cross members centralizing between string lines Clamping gunwale rail into position, tacking weld to cross member Tacking cattle rails using uprights as a guide for height Tacking in top rails using upright as a guide Marking upright positions as per drawing Tacking in uprights setting them flush with outside of trailer Squaring the sides and top, using bracing with turnbuckles attached to the jig Measuring the total trailer for squareness Tacking in diagonals as per drawing making them flush with the outside of the trailer Fitting all flat bars as per drawing Tacking in temporary beams for the floor to sit on Stringing line cattle rail and brace Welding cattle rails to frames Fitting drains Fitting floor sheets and tacking down into position Cambering floor Fitting flat bars under floor Welding underside of floor Fitting ramp as per drawing Welding out deck rails to floor Fitting floor rods Fitting top rail end caps Welding out completely Removing temporary bracing sand all tacks and 'dags' Operating ramp Fitting gate latches Fitting gate supports Fitting slam open latches Making sure the through - load gates and flaps are working properly Making sure all gates are working properly Inspecting trailer for missing welds De-'dilberry' of the complete trailer Inspecting gunwale rail, cattle rail, and top rail for straightness Having trailer inspected and checklist completed by Manager/Foreman Making sure that the part movement sheet is accurate When checklist is signed off moving trailer off jig. [19] On the day of the incident, work commenced at the premises between 7:00am and 8:00am. Mr Angel met with the 'standing section' team and allocated work for the day. Mr Harrop, Mr Lian and Mr Liao were allocated to 'standing jig 3' to work on the manufacture of a cattle trailer. This was the second day that Mr Lian and Mr Liao had worked in the standing section, as both had previously worked in other areas of the workshop. [20] The standing section was falling behind schedule and Mr Davis and Mr Angel decided that Mr Davis should assist Mr Harrop, Mr Lian and Mr Liao at standing jig 3. [21] Mr Lian and Mr Liao were 'tacking' in diagonals (cross pieces) into the side of the ground floor of the cattle trailer, making them flush with the outside of the trailer. In order to make the diagonals flush with the trailer, the employee has to be positioned outside the trailer. Mr Lian and Mr Liao were working outside the trailer and underneath the work platform. Mr Harrop and Mr Davis were fitting the steel floor above, between both sides of the trailer and the frame. This was done on the ground floor. The Employee Induction Kit contained a prohibition upon tack welding without a welding helmet. [22] At around 1.00pm the team broke for lunch as Mr Harrop and Mr Davis had nearly finished fitting the ground floor. After lunch Mr Harrop and Mr Davis worked on fitting out the top section of the cattle trailer and Mr Lian and Mr Liao remained on the ground floor tack welding diagonals. Mr Harrop and Mr Davis placed metal stock on the working platform and commenced clamping upright pieces of steel to both ends of the cattle trailer in preparation for tack welding the top rail. [23] The top rail consisted of a rectangular hollow section ("RHS") of steel approximately 6.3m x 50mm x 2.5mm weighing approximately 22.75kg. The top rail was placed outside the working platform, resting on top of the inner 'toe board' at a slight angle and was unsecured. The top rail was partially resting on the working platform and the other end was protruding across into the cattle trailer. [24] Mr Harrop went to the northern end of the work platform to retrieve a Cigweld 'traveller welder', which was attached to a chain block and carriageway. This type of welder can be lifted to a suitable height by the chain block and therefore either placed on the working platform or suspended above it, depending on the tasks being carried out. Mr Davis was at the other end of the working platform. There was a gap of approximately 220mm between the working edge of the working platform and the working face of the cattle trailer. Mr Harrop was dragging the welder, via the 'endless chain' to move it into position, Jarod Davis was positioned at the Southern end of the working platform. It was at this time the length of Rectangular Hollow Section (RHS) fell approximately 2.3 meters between the gap of the working platform and the working face of the cattle trailer. [25] Mr Lian and Mr Liao were under the working platform. Mr Liao was holding a welding gun and Mr Lian was holding a steel tube ready for Mr Liao to weld. Before Mr Liao could attend to the weld the RHS fell through the gap between the working platform and the trailer. The RHS struck Mr Lian on the back of his head and narrowly missed Mr Liao. Mr Lian was not wearing a welding helmet as required. Mr Liao says that he felt something brush his head and stated that if he were taller, he would have also been struck by the RHS. The RHS fell 60cm before striking Mr Lian, then falling to the floor. [26] After being struck Mr Lian was semi-conscious. He complained of a severe headache. Mr Brad Willis, First Aid Officer, placed Mr Lian in the 'recovery position' while awaiting the arrival of the ambulance. [27] Mr Lian was taken by ambulance to Wagga Base Hospital. He was later transferred to St. Vincent's Hospital in Sydney. Mr Lian did not regain consciousness and on 9 September 2008 was pronounced 'brain steam dead'. Mr Lian died on 9 September 2008 as a result of intracerebral haemorrhage as a result of being struck by the piece of steel. [28] On 6 April the Coroner (Magistrate Murrary) at Wagg Wagga dispensed with the holding of an inquest. Systems of Work Prior to the Incident [29] A system of work existed where employees were working above other employees when building multi-deck trailers, once the top and bottom deck structure was completed. Employees worked on different levels of the trailer whilst completing the internal fit out. Employees were not prohibited from working under the work platform whilst other employees were working from the (upper) work platform. Employees in the 'standing' section usually worked in pairs, which meant that the two employees worked together such that usually no other employees would be working above or below that pair of employees. However on the date of the incident two pairs of employees were working in standing area 3. It was not prohibited for employees to work below the work platform while other employees were working above. [30] The working platforms had been designed with toe boards which had the consequence of allowing storage of materials in their confines and preventing tools and materials falling over the edge. The working platforms were mounted close to cattle trailers, however there was a gap of approximately 220mm between the working edge of the platform and the working face of the trailer under construction. The risk of something falling through the gap had not been identified. The work platforms did not have handrails on their inside edge. [31] In September 2006 the partnership had engaged an external provider, Active Injury Management Specialists ("AIMS") to develop a documented Occupational Health and Safety Management System. The system developed by AIMS provided for minutes of meetings including meetings of the occupational health and safety (OHS) committee, section leader meetings and management meetings. The AIMS system also provided for employee induction records, OHS training records and invoices, hazard identification and reporting, risk assessment and corrective action reports, work instructions and engineering drawings for livestock trailers and tippers, work checklists, safe operating procedure, and an injury register. [32] The system had not been entirely adopted by the partnership. Job safety analyses, whilst required by the documented Occupational Health and Safety Management System, had not been implemented. [33] In 2006 Mr Byrne had instructed Mr Brown to travel to China to recruit skilled welders as there was a shortage of available welders in southern New South Wales. In October 2006 Mr Brown travelled to China where an agent had assembled a group of approximately 40 welders, including Mr Lian, for the purpose of undergoing testing. The testing included welding 4 different welds, reading a simple diagram (a plan), an assessment of English language skills, and safety in relation to Personal Protective Equipment, machine and job set up. Mr Lian was one of those selected for work in Australia. [34] After Mr Lian's 457 work visa was approved he commenced work at the Wagga factory. Mr Lian was inducted in accordance with the partnership's existing two level induction system. An independent interpreter, Michelle Li ("Ms Li") was engaged for the induction process. The first level of the induction consisted of a general induction, including general employment, a plant tour, fire extinguishers, amenities and work zones. The second level of the induction was conducted by the Section Leaders, and included where to walk, personal protective equipment, tools, plant and equipment. [35] The partnership developed an Overseas Tradesmen Employee Orientation Manual for the level one induction, which was translated into Mandarin and handed to each Chinese employee. The workers selected to be employed at the partnership were intended to have a reasonable level of English language skills, however when the first group of workers arrived only one, Mr Xu, was able to communicate at a reasonable level. Mr Xu studied English in Junior High School (from year 7 to year 9) in China, and was then self-taught. Basic words, hand gestures, practical demonstration and engineering drawings were used in communications between the English speaking employees and the Mandarin speaking employees. Where more complicated communication was required, Section Leaders would ask Mr Xu to interpret instructions from English into Mandarin. [36] Safety and warning signs were duplicated into Mandarin for the benefit of the Chinese employees. Ms Li was engaged as a part time interpreter, and TAFE NSW was engaged to provide cultural awareness training to supervisors and employees. Anne Brown (Mr Brown's wife), a qualified primary school teacher provided English language training to all of the Chinese employees and some Chinese employees commenced studying English at Wagga Wagga TAFE. [37] A probation review was in place to measure the technical competence and behaviour of employees prior to being offered permanent employment. The review also included occupational health and safety, quality, teamwork and communication. Mr Angel provided Mr Lian with on the job training, which included practical demonstration in tack welding the side view of the cattle trailer. When Mr Angel was satisfied that Mr Lian was competent, Mr Lian would be allowed to carry out the task. A probation review was conducted for Mr Lian four months after he commenced employment. Mr Lian became a permanent employee on 21 September 2007. [38] The Overseas Tradesmen Employee Orientation Manual stated that "hard hats must be worn in designated areas where overhead materials are being handled". The only designated hard hat areas in the factory were those areas in which the overhead crane was being used, such as the 'sub rail' section, the 'plasma cutter' section and 'tipper section'. The areas underneath the work platform, or when working on the bottom level of a trailer, were not designated hard hat areas however welding helmets were required to be worn when tack welding was being undertaken. Post-Incident Changes [39] Immediately following the incident all production stopped on 'standing jig 3'. [40] Following the incident an Incident Report and Accident Investigation was initiated by the partnership. [41] On the day of the incident the WorkCover Authority issued two Improvement Notices: Notice No. 253827 required the defendant to develop, implement and maintain appropriate control measures to control risks associated with falling objects; and Notice No. 253828 required the defendant to provide complete handrail and toe boards, and to develop, implement and maintain safe systems of work to ensure a suitable work platform was provided. [42] Both of the notices referred to in Para 41 above were complied with by the defendant. [43] The partnership identified risks as a result of the Hazard Identification, Assessment and Control reports on the 'standing jigs'. Risks included incomplete handrails on working platforms, risk to employees of objects falling from the working platform and unsafe access to the working platforms. [44] As a result of the Hazard Identification, Assessment and Control reports the partnership undertook a range of measures including fitting drop down flaps to all standing jig work platforms to eliminate the gap between the working edge of the platform and working face of the trailer under construction. Exclusion gates have been fitted to prevent access to the unprotected part of the platform when shorter trailers are being constructed. [45] Hand rails on the working platform were modified to accord with Australian Standard AS 1657 - 1992 "Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation". Shrouded ladders (i.e. ladders with a fixed enclosure which encircles the climbing space of the ladder) were installed to allow access to the 2 external work platforms. Investigations were made into welding helmets incorporating hard hats, and the use of hard hats throughout the factory were assessed. [46] As a result of the Hazard Identification, Assessment and Control reports the partnership took steps to retrain all employees, including supervisors, in the procedures for 'standing' a cattle trailer. No more than two people are allowed to work on each jig, with one working on the 'drive' side and the other working on the opposite ('kerb') side. The build process and checklist for standing cattle trailers was revised. Standing Operating Procedures were developed for the standing jig work platforms. [47] Following the incident it was identified that the partnership could not be certain of the accuracy of the translations of Mr Xu. The partnership engaged the Department of Immigration and Citizenship telephone service to provide an accurate interpreting service. [48] The defendant has no prior convictions under the Act. [49] The defendant co-operated with the WorkCover Authority during its investigations. 9There was also tendered into evidence a factual inspection report, photographs, copies of the improvement notices issued and other documentation to which it is not necessary to refer. For the defendant, there was tendered into evidence an affidavit of Mick Byrne, which contained certain annexures, a technical data sheet concerning the welding helmet that had been supplied, but that was not being worn at the time of the incident, a number of character references provided by prominent persons concerning Mr Byrne and the impact upon him, his family and the business as a result of the accident, as well as some material describing a restructure of the ownership of the business following the retirement of some members of Mr Byrne's family after the incident. 10Annexed to Mr Byrne's affidavit was material which included illustrations of the progressive manner in which cattle trailers of the kind involved in the incident were manufactured and financial statements concerning the defendant as at 30 June 2010. 11Mr Byrne commenced designing and manufacturing stock trailers in 1975 and moved the business to Wagga in 1988. The facility extends over approximately 6,000 square metres and when operating at full capacity employs 140 people. The business also manufactured other heavy vehicle haulage equipment. 12The production line method utilised by the defendant was formulated by Mr Byrne so that there was a structured approach to manufacturing. Without going into any particular detail, the evidence of Mr Byrne, consistent with the agreed statement of facts, is that if the methodology which he had created had been followed, there would have been no need for Mr Lian or anyone else to have been working in an area below that which was being worked upon at the time of the incident. I interpolate that, of course, part of the breach to which the defendant has pleaded guilty extends not only to the fact that Mr Lian was in the vicinity where he was beneath the impending top rail installation but there were no procedures in place which would have precluded him from entering that area. Furthermore, as was candidly conceded by Mr Byrne, there was a deficiency in the defendant's operations in that there was permitted to be created a gap through which the top rail could fall, as it did. Furthermore, as counsel for the prosecutor pointed out in submissions, the particular operation had not been the subject of a risk assessment and there was inadequate supervision, although the question of supervision arguably overlaps with the contention that Mr Lian should not have been permitted to have been where he was. 13In his affidavit, Mr Byrne said: [43] In my view, the accident was avoidable. It was a simple matter for steps to be taken to ensure that no-one would ever be under the work platform when work was taking place above. Those steps have since been implemented in full compliance with Workcover directions. [44] I take full responsibility for the fact that those steps were not taken before the accident. I take full responsibility for the consequences of that failure. Those consequences, specifically Mack's death and this prosecution live with me every day. However, the possibility of Mack being where he was at the time was just not contemplated in our procedures and we were blind to the possibility that work would proceed not in accordance with the sequence formulated and the work method that I had devised. If the procedure was followed, Mack would have been working on the other side of the jig, away from where the top rail was being installed. Lines of demarcation made it clear that, apart from Mack and his fellow welder Youquan Liao, other persons were not to enter the area below the work platform. What I thought was a safe method was augmented by the supervision of the section leader but this accident occurred anyway. I blame no-one. I am responsible for this and the consequences and I wish to express my remorse and regret at what occurred. [45] The accident and Mack's death was a terrible event. It emotionally devastated Mack's family and his workmates and friends. Many in Wagga were deeply upset about it. It was emotionally devastating for me and my wife, and my sons who work in the business. Following the death and as a result of it, my oldest son David, resigned as General Manager of the business. 14I should add for completeness that the reference in the above extracts to "Mack" is a reference to Mr Lian. 15In his affidavit, Mr Byrne set out at some length a number of steps which were taken by the defendant, its personnel and him personally to assist Mr Lian's family to travel from China whilst he was hospitalised, to provide counselling and support and to provide tangible financial assistance. 16The defendant was the subject of adverse publicity in the Wagga area as a result of media attention after the incident occurred. I am satisfied on the basis of the evidence of Mr Byrne that he personally has been physically and emotionally affected by the incident and its aftermath and that the defendant and he have expressed genuine and sincere remorse and contrition for what occurred, which has been manifested also in a tangible manner. 17I am also satisfied that the defendant is a good corporate citizen and that Mr Byrne is personally highly regarded and a prominent citizen in the Wagga area. 18The starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. The prosecutor asserted, and I accept, that the offence is a serious one. As was candidly conceded by the defendant, there were defects in the work methodology, which I have previously identified. The risk that was created was a grave one resulting, tragically, in the death of an employee. Although the defendant had in place a comprehensive work plan and a comprehensive commitment to occupational health and safety matters, there was nevertheless a failure to comply with the provisions of the Act in the manner that I have described. 19In fixing penalty I shall also take into account general deterrence as well as specific deterrence. In this latter regard, I note that the particular defendant no longer operates the business, but interests associated with Mr Byrne do. When taking into account specific deterrence, I shall, however, also have regard to the overall commitment to occupational health and safety matters expressed by Mr Byrne and tangibly demonstrated by the evidence given in these proceedings. 20Overall, this is a serious offence, but not one committed by a defendant who has had no regard for its obligations under the Act and which has not attempted to satisfy those obligations. It is not, by any means, a worst case scenario. Nor is it, however, a breach of a technical or minor nature. 21There are a number of subjective factors that are to be taken into account in favour of the defendant. It and those associated with it have an unblemished prior record with no convictions under the Act. There was, as I have said, a genuine commitment to the obligations created by the Act. Furthermore, the defendant pleaded guilty at the earliest opportunity, and has expressed genuine contrition and remorse for what occurred. Finally, the defendant must be regarded as a good corporate citizen. 22The financial statements relating to the defendant confirm that it has not traded since the 2009 financial year. It has total assets of $102 and liabilities of $37,215, which appear to be represented by a loan to a related company. On one basis, therefore, the defendant itself has no capacity to pay any fine. Through counsel, Mr Byrne indicated that he would personally undertake that any penalty imposed would be paid notwithstanding the defendant's financial position. I am not personally aware of any other person having made such a commitment in the circumstances of a prosecution brought under the Act or its predecessor. 23The prosecutor sought orders for the payment of a moiety and for costs, which I do not understand to have been resisted by the defendant. 24The maximum penalty is the sum of $550,000. Having regard to my consideration of the objective seriousness of the offence and the need to accommodate both general and specific deterrence, but taking into account the subjective matters to which I have referred, which in the aggregate would permit of a discount of the maximum percentage habitually afforded by this Court in prosecutions under the Act, I intend imposing a penalty of $100,000.