Inspector Craig Hall v R&D Panelform (NSW) Pty Limited and Denis Charles Vella [2011] NSWIRComm 165

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Craig Hall v R&D Panelform (NSW) Pty Limited and Denis Charles Vella [2011] NSWIRComm 165 Hearing dates: 19 September 2011 Decision date: 16 December 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: The Court makes the following orders: 1. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No IRC1060 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 2. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No. IRC 1061 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 3. For the charges brought against Denis Charles Vella in Matter No. IRC1059 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 4. For the charges brought against Denis Charles Vella in Matter No. IRC1058 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 5. The defendants shall pay one order as to the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 by each defendant - partners in a limited liability partnership - defendants failed to ensure the health, safety and welfare at work of all its employees - defendant failed to ensure that people (other than employees of the defendant) and members of the public, were not exposed to risks to their health or safety - critical nature of risk known to defendants - nature of injury - proper propping system in place but failure to communicate with principal contractor - failure to check placement of crane - failure to ensure safety checks after changing SWMS - offences most serious - gravity of the potential risk - risk of serious injury and/or a fatality - foreseeability a factor but risk obvious - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - late guilty plea - remorse shown and contrition expressed - no prior convictions - mitigating factors - contribution to risk from other parties on site - evidence of ongoing corporate commitment to safe working - penalties Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Factories, Shops and Industries Act 1905 Occupational Health and Safety Act 2000 Cases Cited: Bishop v Chung Brothers (1907) 4 CLR 1262; [1907] HCA 23 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Clode v Barnes [1974] 1 WLR 544 Inspector Green v Big River Timbers Pty Limited and Inspector Green v Big River Timbers (Veneer) Pty Ltd [2006] NSWIRComm 279 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Ltd v WorkCover Authority of New South Wales [2008] NSWIRComm 177 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Kondis v State Transport Authority [1984] 154 CLR 672 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Linfox Resources Pty Ltd v R [2010] VSCA 319 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Littlechild LR6 QB 293 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR104 Regina v Dib (2003) NSWCCA 117 Signanto v The Queen (1998) 194 CLR 656 Veen v The Queen (No.2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994 Category: Principal judgment Parties: Inspector Craig Hall (Prosecutor) R&D Panelform (NSW) Pty Limited (First Defendant) Denis Charles Vella (Second Defendant) Representation: M P Cahill of counsel (Prosecutor) J J Fernon SC with A Fernon of counsel (Defendants) DL Piper, Solicitors (Prosecutor) Yates Beaggi Lawyers (Defendants) File Number(s): IRC 1058 of 2010 IRC 1059 of 2010 IRC 1060 of 2010 IRC 1061 of 2010