Inspector Hamilton v Thiess Pty Ltd [ACN 010 221 486] [2012] NSWIRComm 26

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hamilton v Thiess Pty Ltd [ACN 010 221 486] [2012] NSWIRComm 26 Hearing dates: 14/11/2011 Decision date: 04 April 2012 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: (1) In IRC 1987 of 2007, the Court orders that Thiess Pty Ltd is convicted of the offence and fined $156,000 with a moiety to the prosecutor. (2) In IRC 1989 of 2007, the Court orders that John Holland Pty Ltd is convicted of the offence and fined $156,000 with a moiety to the prosecutor. (3) In IRC 1987 of 2007 and IRC 1989 of 2007, the defendants are to pay the reasonable costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 (the Act) - pleas of guilty entered by each defendant to an offence under s 8(1) of the Act - defendants were engaged as an unincorporated joint venture (TJH) to design and construct the Lane Cove Tunnel (LCT) and associated works - the tunnel collapsed in an area referred to as the intersection of two tunnels (MC5B and MCAA) while employees were carrying out excavation works - no employee was physically injured by the collapse - risk of tunnel collapse and/or falling rock was serious - risk was obvious and foreseeable - consequences to employees working in the area potentially grave - readily available steps - mitigating factors include comprehensive systems of safety developed and implemented by TJH for the LCT Project - deterrence - maximum penalty - subjective factors - orders Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 Category: Principal judgment Parties: Inspector Nathan Hamilton (Prosecutor) Thiess Pty Ltd (Defendant) John Holland Pty Ltd (Defendant) Representation: Mr J Agius, SC with Mr R Reitano and Mr B Docking of counsel (Prosecutor) Mr H Dixon, SC with Mr A Gotting of counsel (Defendant - Thiess Pty Ltd) Mr G Hatcher, SC with Mr G McGrath, SC (Defendant - John Holland Pty Ltd) WorkCover Authority of New South Wales (Prosecutor) Ashurst Australia (Defendant - Thiess Pty Ltd) Herbert Geer (Defendant - John Holland Pty Ltd) File Number(s): IRC 1987 of 2007 IRC 1989 of 2007