Timeline of Key Cases

The prosecution of the 4 corporate entities and the manger worker occurred over 11 days in March, September, October and December 2024. Three of the four corporate entities entered pleas of guilty to category 2 offences with selected measures. One corporate entity pleaded not guilty to all offences. The manager/worker also pleaded not guilty. There were multiple issues thought the trial. The first issue was related to amended answers that were provided by the defendants to the Prosecutor several weeks out from the trial. Compulsory answers to s.155 notices had been provided unto 20 months prior to the Prosecutor commencing proceedings. It became clear as part of the preparation of the defended hearings that some of the answers provided were not completely accurate. Amended answers were provided with a detailed explanatory note. The Prosecutor refused to accept that the Defendant's could correct their original answers. The Court held that the admissions made in the revised answers were reliable and should be admitted. It did not preclude the Prosecutor relying on previous answers that were non-responsive or pertained to certain topics. The second issue the Court dealt with was whether the evidence established the fault element of the category 1 offences that the corporate Defendants were grossly negligent or reckless. His honour's first part of this finding was that gross negligence and recklessness could be argued in the alternative. He did not make a final determination if it was possible to find both fault elements could be proved at the same time as it was unnecessary. His honour determined that the Prosecutor had failed to prove either of the fault elements. Importantly he rejected the prosecution argument hat the knowledge of the broad risk of a fall from height was sufficient to establish that the corporate defendants had acted recklessly. His Honour also dealt with the issue of a limited partner in a partnership. This is a special kind of partnership recognised by the Partnerships Act 1892 which prohibits the limited partner from participating in the operation of the business. His Honour found that it was not reasonably practicable for the limited partner to participate in the operation of the as it was prohibitive from taking part in the management of the partnership if it wanted to rely on its limited liability. An issue that arose with he particularisation of the charge was that some measures clearly eliminated the risk so far as reasonably practicable and others would have had limited effect to the extent that they probably did not even minimise risk so far as reasonably practicable. The Defendant elected to admit guilt in relation to the measures which it considered would eliminate risk so far as reasonably practicable and contest the other measures. It was successful in relation to all but one of the meausures. The measure it was unsuccessful in defending related to a risk assessment. His honour took the view that it was a required step to arrive at the decision to implement the "admitted steps". The final issue of note was related to the manger/worker. His Honour found that it was not necessary for the manager/ worker not to be physically at work to be "at work" as the WHS Act states. His honour did not find in favour of the Proseuctor in relation to a number of the measures as they were in his view duties of the corporate defendants not the manager/worker. The one measure he did find there was a breach of duty (a failure to instruct another worker to set up a temporary exclusion zone he dismissed on the basis that there were other duties imposed on the corporate defendants which would have eliminated the risk and that he could only come to a view that a temporary exclusion zone "may" have minimised the risk to some extent but was also of the view that it equally may not have. In those circumstances he did not find that the breach of duty was a significant or substantial cause of another worker being exposed to the risk of serious injury or death.

Four related corporate entities were charged with multiple offences under category 1 and in the alternative category 2. An individual who was a manager was charged with an offence as a worker relying on the duty created by s.28 of the WHS Act. The worker had provided answers in response to a compulsory interview. The prosecutor wanted to tender interview as admissions the corporate entities cases. All of the cases were being heard together. The Court rejected the tender of the interview as a result of the unfair prejudice to each of the corporate Defendants because the would not be able to cross-examine the manager/worker. The manager/worker also be a defendant was not able to be called by the prosecutor to give evidence and the manager/worker was not intending to give evidence in his case as a defendant.

The Defendant entered a plea of guilty to a category 2 offence by replacing those matters which it considered it had breached an offence. The Prosecutor did not accept that the plea of guilty adequately reflected the offence. The matter was run as a contested hearing on facts over 13 days. The court recognised the "real debate" concerned the presence of a r risk in Bedroom 1 and whether the prosecutor could establish the reasonably practicable measures pleaded in par 9 of the Further Amended Summons. At issue was a reasonable hypothesis consistent with innocence. The prosecution case was based on circumstantial evidence. The prosecution was not able to exclude the reasonable hypothesis consistent with innocence. The Court found that the prosecutor did not establish the risk pleaded in par 8(ii) and that multiple pleaded measures were not made out. The matter was adjourned for sentence.

Prosecutor applied to amend to particulars of the charge 6 days prior to the defended hearing commencing. The notice of motion could not be dealt with in time to permit the hearing to proceed. The hearing date was vacated and the Court ordered the prosecutor to pay the defendant's costs thrown away by reason of the vacation of the hearing on an indemnity basis.

Whether the parent company with 100% shareholding in a subsidiary mining company can also be the owner and the operator of a mine

A horse supplied to Dubbo TAFE for use in a Rural Skills program for inexperienced riders was an ex race horse which had been raced within a few weeks of supply. The inexperienced rider was thrown and died when the horse ran from the paddock that they were training in and bolted up a length of enclosed fencing which had similarities to a race track.

OCCUPATIONAL HEALTH AND SAFETY - breach of ss 8(1) & 8(2) & s 26(1) of the Occupational Health and Safety Act 2000 - amended charge - guilty plea and appropriate penalty - corporate defendant - director defendant - objective seriousness - prior conviction - onus and standard of proof - principle of totality - criminal convictions and overseas travel - s 10 Crimes (Sentencing Procedure) Act 1999 applied to personal defendant

Occupational Health and Safety Act 2000 - s8(1) applies to defendant through s26(1) - death of employee giving rise to proceedings - guilty plea - penalty - defendant has strong commitment to safe mining operations - significant improvements were made to the mine upon acquisition by Perilya - defendant agreed to pay prosector's costs - no prior OH&S convictions - circumstances exist to allow discretion to be exercised under s10 of the Crimes (Sentencing Procedure) Act - charge dismissed - no order as to costs

Constitutional law - whether Chapter III of the Commonwealth Constitution prevents the conferral of criminal jurisdiction on the Industrial Relations Commission - application of the Kable doctrine. - Criminal standard of proof - whether applied. Peter Lamont Foster ultimately dealt with under s 10 of the Crimes (Sentencing Procedure) Act applied - offence proved and dismissed

A successfully defended hearing turning on the operation of the Coal Mines Regulation.

Martin Shume appeared with John Gleeson QC on behalf of Rail Services Australia