Inspector Christensen v Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust [2012] NSWIRComm 126

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Christensen v Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust [2012] NSWIRComm 126 Hearing dates: 22 October 2012 Decision date: 16 November 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No 728 of 2011 (corporate defendant) (1) The defendant, Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $200,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Matter No IRC 729 of 2011 (Allan William Wadwell) (1) The defendant, Allan William Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. (2) The defendant is fined an amount of $20,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Matter No IRC 730 of 2011 (Scott Anthony Wadwell) (1) The defendant, Scott Anthony Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. (2) The defendant is fined an amount of $10,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Pleas of guilty by corporate defendant and directors of corporate defendant - Excavation for bungee pool as favour for friends - Trench collapse - One fatality and injuries to another person - Objective seriousness of offences - Need for general deterrence - Subjective considerations - Whether s 10 of Crimes (Sentencing Procedure Act) 1999 should apply to one director - Victim Impact Statements - Guilty findings - Convictions - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Cases Cited: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 99 IR 29; (2000) 49 NSWLR 610 Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited [1999] NSWIRComm 353; (1999) 92 IR 8 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Kelsey v The University of Sydney (unreported, Industrial Court, Hill J, No 1280 of 1995, 2 April 1997) Inspector Nicholson v Gallagher [2012] NSWIRComm 121 Hannah v Ricegrowers Co-op Ltd (unreported, Industrial Court, Fisher P, No 90 of 1988, 20 November 1988) Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 R v Mansour [1999] NSWCCA 180 R v Previtera (1997) 94 A Crim R 76 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2003) 123 IR 121 Category: Principal judgment Parties: Inspector Madeline Christensen (Prosecutor) Wadwell Group Pty Ltd (ACN 125 970 345) as Trustee for the Wadwell Family Trust (Defendant in IRC2012/728) Allan William Wadwell (Defendant in IRC2012/729) Scott Anthony Wadwell (Defendant in IRC2012/730) Representation: Mr D O'Neill of counsel (Prosecutor) Mr M Shume of counsel (Defendants) WorkCover Authority of New South Wales (Prosecutor) Moray & Agnew, Lawyers (Defendants) File Number(s): IRC 728, 729 and 730 of 2011