Masterton Homes Pty Limited v WorkCover Authority of New South Wales (Inspector Batty) [2011] NSWIRComm 102

Industrial Relations Commission New South Wales Medium Neutral Citation: Masterton Homes Pty Limited v WorkCover Authority of New South Wales (Inspector Batty) [2011] NSWIRComm 102 Hearing dates: 23 March 2011, 24 March 2011, 25 March 2011 Decision date: 05 August 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President, Walton J, Vice-President, Backman J Decision: (1) Leave to appeal, if required, is granted. (2) With regard to the Decision of Chief Industrial Magistrate Hart of 22 June 2007, the appeal is dismissed. (3) Otherwise, the appeal is allowed and the conviction and sentence of the appellant by Chief Industrial Magistrate Hart of 29 October 2007, 28 May 2008 and 12 November 2008 are set aside. (4) The matter is remitted to the Local Court to determine according to law. (5) The respondent shall pay the appellant's costs of the proceedings below and the appeal. Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY - subcontractor injured while working at building site - appellant principal contractor at the site - challenge to jurisdiction - whether charge under s 8(2) of the Occupational Health and Safety Act 2000 (the Act) pleaded an identifiable risk to safety - whether the charge particularised with sufficient precision the alleged omissions or measures not taken - distinction between "means" and "measures" considered - whether errors in the reasoning process of the Chief Industrial Magistrate (the CIM) - whether the appellant was accorded procedural fairness in the hearing below - whether the CIM's failure to require the respondent to provide particulars of the offence alleged in the charge constituted an error - whether the CIM erred in law in relation to the findings of guilt - whether the CIM erred in his consideration of the statutory defence under s 28(a) of the Act - appeal upheld on basis of defect in first particular of the charge and as a consequence of the CIM's failure to give adequate reasons which constituted a denial of procedural fairness - matter remitted to Local Court to determine according to law - costs Legislation Cited: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Local Courts (Criminal and Applications Procedure) Rule 2003 Trade Practices Act 1974 (Cth) Cases Cited: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Chamberlain v MacLachlan [2003] WASCA 200 Chugg v Pacific Dunlop Pty Ltd [1990] HCA 41; (1990) 170 CLR 249 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 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 Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Kirk Group Holdings Pty Limited v WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151 Kirk v Industrial Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Knaggs v Director of Public Prosecutions (NSW) and Another [2007] NSWCA 83; (2007) 170 A Crim R 366 Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2007) 159 IR 121 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Rail Infrastructure Corporation v Page [2008] NSWIRComm 169; (2008) 179 IR 398 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39; (2007) 162 IR 241 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 Trade Practices Commission v Total Australia Limited (1976) 24 FLR 413 Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 WorkCover Authority (NSW) (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 Texts Cited: The Macquarie Dictionary (5th Edn) Category: Principal judgment Parties: Masterton Homes Pty Limited (Appellant) WorkCover Authority of New South Wales (Respondent) Representation: Mr D Campbell SC with Mr KG Bennett of counsel (Appellant) Mr J Agius SC with Mr R Reitano of counsel (Respondent) Masterton Homes Pty Limited (Appellant) DLA Piper Australia (Respondent) File Number(s): IRC 2240 of 2008 Decision under appeal Jurisdiction: 9109 Before: Chief Industrial Magistrate Hart File Number(s): 120264/06/4