Inspector Regan v Waco Kwikform Ltd [2011] NSWIRComm 108

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Regan v Waco Kwikform Ltd [2011] NSWIRComm 108 Hearing dates: 21 June 2011; 19 July 2011 Decision date: 18 August 2011 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $120,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. In addition, the defendant shall pay the sum of $3000 representing the costs arising from the investigation of the offence. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - section 8(2) of the Occupational Health and Safety Act 2000 - mining industry - collapse of scaffold - non employee injured - objective seriousness - victim impact statement - respective roles and culpabilities of defendant and other entities operating at mine considered - parity - penalty imposed - COSTS Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 El-Ansary v El-Raghy [2002] WASC 51 Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2010] NSWIRComm 106 Inspector Dugdale v Fluid Tech Hydraulics Pty Ltd (No 2) [2011] NSWIRComm 88 Inspector James v Ryan [2010] NSWIRComm 63 Inspector James v Ryan [2010] NSWIRComm 63 Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 Inspector Simpson v Waco Kwikform Ltd (21 January 2005, 20067464/04/2 unreported) Judgment of Chief Industrial Magistrate Miller Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 Oshlack v Richmond River Council (1998) 193 CLR 72 Pham v R [2010] NSWCCA 208 Postiglione v R (1997) 189 CLR 295 R v Olbrich [1999] HCA 54; (1999) CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 3) [2011] NSWIRComm 76 Weininger v R [2003] HCA 14; (2003) 212 CLR 629 Category: Principal judgment Parties: Ronald William Regan (Prosecutor) Waco Kwikform Ltd (Defendant) Representation: Counsel Mr P Strickland SC with Mr D O'Neil of counsel (Prosecutor) Mrs W Thompson of counsel (Defendant) Solicitors Crown Solicitor's Office (Prosecutor) Freehills (Defendant) File Number(s): IRC 1031 of 2008