Inspector Scott Rand v Toffy Pty Ltd t/as ABC Tyrepower and Mechanical [2012] NSWIRComm 39

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Scott Rand v Toffy Pty Ltd t/as ABC Tyrepower and Mechanical [2012] NSWIRComm 39 Hearing dates: 30 March 2012 Decision date: 02 April 2012 Before: Kavanagh J Decision: ORDERS 1. I find the defendant guilty. 2. The defendant is fined in the sum of $65,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant shall pay the prosecutor's costs. As to the quantification of costs, I will hear the parties on this issue in the event no agreement is reached. Leave to relist at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach under s 8(1) - amended application for order - guilty plea - corporate defendant - vehicle car tyre business -lift designed to move stock from ground floor to the mezzanine level - errors in design of lift installed - no proper risk assessment undertaken - hoist not approved or certified or registered to carry personnel - personnel using lift when incident occurred - no professional maintenance programme for lift - unsafe system of work in place - foreseeable element to the offence - breach serious - simple remedial steps available - safe system of work now in place - periodic maintenance check and repair of machinery now performed - elements specific of general deterrence in consideration of penalty - risk most serious - early plea - no prior convictions - discount on penalty - compliance with WorkCover Authority - defendant corporation of good character - unlikely to re-offend - corporation of limited means for the purposes of penalty - penalty to reflect objective seriousness of offence - penalty - moiety to prosecutor - costs Legislation Cited: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: ACCC v Safeways Stores Pty Limited (1997) ATPR 41-562 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Corbett v Borg, unreported judgment of Hungerford J dated 15 May 1996 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Moore v E.W. Co (1990) 37 IR 145 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 Pearce v Queen (1998) 72 ALJR 1416 Postiglione v The Queen (1997) 189 CLR 295 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 Warman v WorkCover (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Ltd, unreported decision of Schmidt J dated 25 February 1994 WorkCover v Waugh (1995) 52 IR 89 Category: Principal judgment Parties: Inspector Scott Rand (Prosecutor) Toffy Pty Ltd t/as ABC Tyrepower and Mechanical (Defendant) Representation: A Searle of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Jordan Djundja Lawyers (Defendant) File Number(s): IRC 825 of 2011