Independent Transport Safety Regulator v Australian Rail Track Corporation Ltd. [2013] NSWIRComm 31

Industrial Relations Commission New South Wales Medium Neutral Citation: Independent Transport Safety Regulator v Australian Rail Track Corporation Ltd. [2013] NSWIRComm 31 Hearing dates: 5 April 2013 (Written Submissions 18 April 2013) Decision date: 23 April 2013 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (1) The defendant, Australian Rail Track Corporation Ltd, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008, as particularised in the Amended Application for Order in Matter IRC 550 of 2012, to which the defendant entered a plea of guilty. (2) The defendant is fined the sum of $160,000 with half that amount of be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as assessed. Catchwords: RAIL SAFETY ACT 2008 - s 8(1) - work team performing duties in rail corridor - fatal injuries received by team member when train unexpectedly appears at fixed work site - guilty plea entered - numerous failures in otherwise detailed safety system - failure to close line to be worked upon - failure to comply with system for closing line - failure to adequately audit and monitor safety communications - failure to use secondary safety system of flags and detonators near work site - safety rules capable of being read separately when required to be read together - failure of supervision at work site when Protection Officer required to implement secondary safety system - unsafe practices evolve whereby work performed on a line when train traffic operating - risks foreseeable - serious breach established - general and specific deterrence considered - many subjective factors mitigate level of penalty - early plea - first offender - established safety system - contrition demonstrated - steps taken to address deficiency in safety system - co-operation with investigating authorities - penalty imposed CRIMES (SENTENCING PROCEDURE) ACT 1999 - s 22A - availability of discount for assistance to administration of justice - whether additional discount available where guilty plea entered and discount separately granted for utilitarian value of plea Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Rail Safety Act 2002 Rail Safety Act 2008 Rail Safety National Law (NSW) 2012 Work Health and Safety Act 2011 Cases Cited: Environment Protection Authority v Heggies Bulkhaul Ltd [2003] NSWLEC 77 Environment Protection Authority v Lubrizol International Inc [2003] NSWLEC 349 Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155 R v Da-Pra [2012] NSWSC 607 R v Fahda [2012] NSWSC 114 R v Kerry John Burke [2002] NSWCCA 353 R v Maglovski (No 2) [2013] NSWSC 16 R v Serone [2012] NSWSC 1232 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Category: Principal judgment Parties: Independent Transport Safety Regulator (Prosecutor) Australian Rail Track Corporation Ltd (Defendant) Representation: Mrs Thomspon of counsel (Prosecutor) Mr Hodgkinson SC with Ms K Dawson of counsel (Defendant) Crown Solicitor's Office (Prosecutor) Henry Davis York (Defendant) File Number(s): IRC 550 of 2012