Inspector Michael Kent v All Spa Deliveries Pty Ltd [2012] NSWIRComm 59

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Michael Kent v All Spa Deliveries Pty Ltd [2012] NSWIRComm 59 Hearing dates: 24 May; 20 June 2012 Decision date: 20 June 2012 Before: Kavanagh J Decision: In matter No IRC1615 of 2011, I find the corporate defendant guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $550,000 under the Act. The corporate defendant is fined in the sum of $15,000 with a moiety to the WorkCover Authority. In matter No IRC 1614 of 2011, I find the corporate defendant guilty of the failure to notify an incident under s 86(1)(b) of the Occupational Health and Safety Act 2000. The maximum penalty for such a breach is $55,000. The corporate defendant is fined in the sum of $2,000 with a moity to the WorkCover Authority. I have considered the question of totality but an overview of the facts do not persuade that the failure to notify is other than a separate and distinct charge with no similar elements to the s 8(2) charge. There shall be no totality principle applied to penalty. In matter No IRC1613 of 2011, the charge is against the individual defendant as the Director of the corporation brought in accordance with the deeming provisions of s 26(1) of the Act under s 8(2), I find the defendant guilty. The maximum penalty for the charge is $55,000. The individual defendant is fined in the sum of $2,000. The defendant shall pay the Prosecutor's costs as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach by corporate defendant of ss 8(2) and 86(1)(b) - breach by individual defendant of s 8(2) by virtue of deeming provision in s 26 - amended applications for order - guilty pleas - corporate defendant operated spa bath delivery business - contractor injured in delivery of spa bath - failed to provide safe system of work for person not employee - no mechanical aid to lift spa - no proper risk assessment undertaken - each delivery site would have particular risks - foreseeability - specific and general deterrence relevant - gravity of risk - serious breach - corporate defendant obliged to ensure notification of incident - unintended oversight - early pleas - corporate defendant and individual defendant of limited financial means - discount on penalty - individual and corporate defendants good corporate citizens - principle of totality not applicable - 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: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Janet Corbett v BBC Hardware Pty Limited and Bunnings Pty Limited (2006) NSWIRComm 401 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 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 Tyler v Sydney Electricity (1993) 47 IR 1 Winchester v Regina (1992) 58 A Crim R 345 Category: Principal judgment Parties: Inspector Michael Kent (Prosecutor) All Spa Deliveries Pty Ltd (Corporate Defendant) Jihad Gerges (Individual Defendant) Representation: L Doust (Prosecutor) WorkCover Authority of New South Wales (Prosecutor) Coyne Legal (Defendants) File Number(s): IRC 1613 of 2011 IRC 1614 of 2011 IRC 1615 of 2011