Inspector Nicholson v Seovic Engineering Pty Limited [ACN 003 791 973] [2013] NSWIRComm 41

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Seovic Engineering Pty Limited [ACN 003 791 973] [2013] NSWIRComm 41 Hearing dates: 30/10/2012 Decision date: 03 June 2013 Before: Backman J Decision: In IRC No 1067 of 2010, the Court makes the following orders: (1) The corporate defendant, Seovic Engineering Pty Limited [ACN 003 791 973], is convicted of the offence and fined $100,000 with a moiety to the prosecutor. (2) The corporate defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. In IRC No 1068 of 2010, the Court makes the following orders: (1) John Jason Seovic is convicted of the offence and fined $8,000 with a moiety to the prosecutor. (2) John Jason Seovic is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. In IRC No 1069 of 2010, the Court makes the following orders: (1) Paul Garry Miskell is convicted of the offence and fined $8,000 with a moiety to the prosecutor. (2) Paul Garry Miskell is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (OHS Act 2000) - pleas of guilty to an offence under s 8(1) of the Act committed by the corporate defendant, and under s 8(1) by virtue of s 26(1) committed by the individual defendants - employee suffers fatal injuries after being struck by a chain or similar object while working under a coal shuttle car - risk of being crushed or hit in the course of refitting the conveyor chain to the shuttle car while working underneath it - no safety procedures in place and no assessment of the risk at time of offence - risk obvious, reasonably foreseeable and very serious - availability of simple measures to obviate risk - gravity of the risk likely to result in serious injuries - deterrence applied - whether one penalty should be imposed on the three defendants - consideration of respective roles and culpabilities of defendants and others not prosecuted in relation to the offence - application under s 10 of the Crimes (Sentencing Procedure) Act 1999 considered with regard to the individual defendants - subjective factors considered - costs - orders Legislation Cited: Clear Waters Act 1979 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Environment Protection Authority v Eljo Pty Ltd [2005] NSWLEC 341 Environment Protection Authority v New Generation Beverages Pty Limited & Anor [2000] NSWLEC 130 Environment Protection Authority v Hochtief [2005] NSWLEC 506; (2005) 143 LGERA 118 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 Lawlenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin [2006] NSWIRComm 339; (2006) 159 IR 121 Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 R v Travel Wholesale Group Inc. [1991] 3 S.C.R. 154 Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279; (2006) 156 IR 341 Category: Principal judgment Parties: Inspector Sarah Nicholson (Prosecutor) Seovic Engineering Pty Limited [ACN 003 791 973] (First defendant) John Jason Seovic (Second defendant) Paul Garry Miskell (Third defendant) Representation: Mr R Reitano, of counsel (Prosecutor) Mr J Trew, QC (Defendants) WorkCover Authority of New South Wales (Prosecutor) Toomey Pegg Lawyers (Defendants) File Number(s): IRC 1067 of 2010 IRC 1068 of 2010 IRC 1069 of 2010