Inspector Nikolovski v City Civil Pty Ltd (No 2) [2012] NSWIRComm 1

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nikolovski v City Civil Pty Ltd (No 2) [2012] NSWIRComm 1 Hearing dates: 14 December 2011 Decision date: 08 February 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a) in relation to City Civil Pty Ltd: (i) City Civil Pty Ltd is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1016 of 2009 in relation to which it entered a plea of guilty; (ii) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004. (b) in relation to Peter Bakhos: (i) Peter Bakhos is found guilty of a breach of s 8(1) by operation of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 1015 of 2009 in relation to which he entered a plea of guilty; (ii) the defendant is fined the sum of $10,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT - s 8(1), s 26(1) - proceedings against corporation and director - demolition work involving singe storey dwelling - risk of falling from roof - failure to provide safe access to roof, fall protection, information, instruction, training and supervision - pleas of guilty entered - fatal accident - risk foreseeable - serious breach - defendants equally culpable - general and specific deterrence considered - financial position of defendants not raised to establish impecuniosity but to establish current financial circumstances of the defendants - early pleas warrant highest level of discount - no prior convictions - good safety record and significant safety system in operation despite deficiencies - remorse and contrition - co-operation with WorkCover Authority - penalties imposed Legislation Cited: Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Inspector Nikolovski v Peter Bakos and City Civil Pty Ltd [2011] NSWIRComm 20) 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 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010); 239 CLR 531 Category: Principal judgment Parties: Inspector Steven Nikolovski (Prosecutor) City Civil Pty Ltd (Defendant in 09/1016) Peter Bakhos (Defendant in 09/1015) Representation: C Magee of counsel (Prosecutor) A Britt of counsel (Defendants) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) K P O'Donnell & Associates (Defendants) File Number(s): IRC 1015 of 2009 IRC 1016 of 2009 Publication restriction: