Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 125

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 125 Hearing dates: 30 August 2011 Decision date: 12 September 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) in relation to Matter No IRC 2050 of 2008 regarding John Holland Rail Pty Ltd: (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 2050 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $120,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. (b) in relation to Matter No IRC 2055 regarding John Holland Pty Ltd: (i) the defendant is found guilty of a breach of s (10(1) of the Occupational Health and Safety Act 2000 as particularised in IRC Matter No 2055 in which the defendant entered a plea of guilty to the Amended Application for Order; (ii) the defendant is fined the sum of $135,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as further ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 10(1) - pleas of guilty entered by two corporate defendants members of same corporate Group - proceedings against other corporate and individual defendants arising from same workplace accident previously concluded - rail upgrade work - use of excavator operating in reverse - excavator supplied by sub-contractors - rail workers at risk of collision with excavator - excavator defects known - failure to apply/enforce existing safety systems - extensive control over safety exercised by principal contractor defendant and corporate Group member defendant - rail worker seriously injured - offences objectively serious - general and specific deterrence required - discount for early pleas - substantial subjective factors - defendants show contrition and remorse - issue of relative culpability compared with corporate defendants dealt with in separate proceedings - fines imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Inspector Wade v Goldspring's Earthmoving Pty Ltd [2011] NSWIRComm 106 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 R v Harrison 1997) 93A Crim R 314 R v Paull (1990) 20 NSWLR 247 at 234 R v Rusby [1977] 1 NSWLR 594 Category: Principal judgment Parties: Inspector Paul Wade (Prosecutor) John Holland Rail Pty Ltd (Defendant in 08/2050) John Holland Pty Ltd (Defendant in 08/2055) Representation: M Cahill of counsel (Prosecutor) G McGrath of counsel (Defendants) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Herbert Geer (Defendants) File Number(s): IRC 2050 of 2008 IRC 2055 of 2008