Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89 Hearing dates: 30 September 2013 Decision date: 10 October 2013 Before: Boland J, President Decision: Matter No IRC 282 of 2011 1) The defendant is found guilty and convicted of the offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $66,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Matter No IRC 283 of 2011 (1) The defendant is found guilty and convicted of the offence under s 8(2) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $94,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Fatality - Worker killed and other seriously injured when struck by rail panel being lifted into position - Rail industry - Contravention of ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 - Guilty pleas - Sentencing - Application of relevant principles including totality - Fines imposed Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55 Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Morrison v Powercoal Pty Ltd & Anor (No. 3); [2005] NSWIRComm 61; (2005) 147 IR 117 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312 WorkCover Authority of NSW (Insp Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223; (2001) 108 IR 283 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 Texts Cited: Principles of Sentencing (2nd ed, 1979) Category: Principal judgment Parties: WorkCover Authority of New South Wales (Inspector Madeline Christensen) (Prosecutor) MVM Rail Pty Limited (Defendant) Representation: Ms A Mitchelmore of Counsel (Prosecutor) Mr G M Watson, Senior Counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Lee and Lyons Lawyers (Defendant) File Number(s): IRC 282 and 283 of 2011