Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Andrew Rowe v Roads and Maritime Services of New South Wales [2012] NSWIRComm 43 Hearing dates: 8 February 2012; Written submissions - 16, 23 March 2012; 10 May 2012 Decision date: 25 May 2012 Before: Kavanagh J Decision: The Court makes the following orders: 1. In Matter No IRC186 of 2011, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $150,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant shall pay 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 - prosecutions under s 8(2) of the Occupational Health and Safety Act 2000 - RTA (now RMS) site - maintenance and road works being performed late at night - failure to recognise need for risk assessment and safe work method to protect person on foot at worksite given the movement of vehicles within the site - defendant responsible for OHS on site - multiple contractors on site - no communication system in place between the parties on worksite - failure to ensure each contractor's safe work method recognised the risk from the movement of vehicles within a worksite when employees were also on site on foot - foreseeability - no recognition of risk - gravity of offence - general and specific deterrence - early plea - co-operation with WorkCover - parity - victim impact statements - subjective elements - consideration as to whether prior convictions of prior corporation carried over to new corporation - whether previous offender with prior convictions for purpose of penalty effect ss 120, 121, 123 of the Occupational Health and Safety Act and Transport Administration Act 1988, cl 183 of Schedule 7 and Schedule 4 (as amended by Transport Legislation Amendment Act 2011) - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Health Services Act 1997 Interpretation Act 1987 Occupational Health and Safety Act 2000 Transport Administration Act 1988 Transport Legislation Amendment Act 2011 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 432 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Insp Rowe v Eagle Eye Traffic Services [2010] NSWIRComm 31 Inspector Glass v Foamex Polystyrene Pty Limited [2004] NSWIRComm 100 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Inspector Lancaster v Rail Corporation of New South Wales [2008] NSWIRComm 189 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997) 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 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Mansour [1999] NSWCCA 180 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 R v Wickham [2004] NSWCCA 193 Tyler v Sydney Electricity (1999) 47 IR 1 Veen v The Queen (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1981) 85 IR 99 WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported decision of Hill J dated 2 April 1997) Category: Principal judgment Parties: Inspector Andrew Rowe (Prosecutor) Roads and Maritime Services of New South Wales (Defendant) Representation: Mr B G Docking (Prosecutor) Ms P E McDonald SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore, Solicitors (Defendant) File Number(s): IRC 186 of 2011