Gotico Industries Pty Ltd v Benbow [2001] NSWIRComm 30 (27 February 2001)

Last Updated: 20 March 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Gotico Industries Pty Ltd v Benbow [2001] NSWIRComm 30

FILE NUMBER(S): IRC 4400

HEARING DATE(S): 27/02/2001

EX TEMPORE DATE: 27/02/2001

PARTIES:

APPELLANT:

Gotico Industries Pty Ltd

RESPONDENT:

Inspector Elizabeth Benbow

JUDGMENT OF: Wright J President Walton J Vice-President Hungerford J

LEGAL REPRESENTATIVES

APPELLANT:

Mr H Gulpers of counsel

Bayside Solicitors, Ramsgate

(Mr Tim Xenos)

RESPONDENT:

Ms P McDonald of counsel

WorkCover Authority of New South Wales

(Ms Mary Lagana)

CASES CITED: Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246.

Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432

Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116

WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Proprietary Co Limited (1999) 90 IR 277

LEGISLATION CITED: Industrial Relations Act 1996 s 197

Occupational Health and Safety Act 1983 s 15 s 27

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice President

HUNGERFORD J

Tuesday, 27 February 2001

Matter No IRC 4400 of 2000

GOTICO INDUSTRIES PTY LIMITED v INSPECTOR ELIZABETH BENBOW

Appeal from a decision of Industrial Magistrate P O'Shane given on 15 August 2000 in Matter No. 20071263/00/2

JUDGMENT OF THE COURT

(Extempore)

[2001] NSWIRComm 30

1    This matter is an application by Gotico Industries Pty Limited for leave to appeal and, if leave is granted, an appeal from the decision of Ms P O'Shane, Industrial Magistrate, given on 15 August 2000. The appeal was amended, but nonetheless failed to provide any grounds or reasons for the grant of leave.

2    Leave to appeal is required in the case of an appeal under s 197 of the Industrial Relations Act 1996 brought from a decision of an Industrial Magistrate: see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246.

3    At the commencement of the proceedings today Mr Gulpers of counsel, who appeared for the appellant, substantially limited the grounds of the appeal. The appeal went forward as an appeal against the severity of the penalty imposed by the Magistrate, namely, $25,000, where the maximum penalty was $55,000.

4    We consider that leave to appeal should not be granted in this matter for a number of reasons. First, the appeal is entirely restricted to the question of severity. Ordinarily, and in the absence of other considerations, such an appeal would not attract leave to appeal: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at [13].

5    In this matter, the appellant substantially relied in the appeal upon grounds foregone in support of leave and not those actually pressed upon the appeal. Further, the appeal raises no issue of principle: see Sydney Water Corporation Limited v WorkCover Authority of New South Wales (Inspector Hes) (2000) 96 IR 116.

6    We wish to emphasize the significance of s 27 of the Occupational Health and Safety Act 1983. The provision does not merely impose formal requirements for the notification of accidents in the nature of the registration of an incident, but rather requires a notification of accidents so that the WorkCover Authority of New South Wales may carry out necessary investigations to identify and remedy hazards to safety: see WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Proprietary Co Limited (1999) 90 IR 277 at 290 and 295. The section is an important provision ensuring the proper investigation of breaches of the Occupational Health and Safety Act and the adoption of appropriate remedial measures to prevent further such occurrences.

7    Manifest public interest considerations are involved. These considerations are particularly relevant to the present matter where the appellant not only failed to notify a serious accident for some considerable time, but had consistently and over a long period failed to notify accidents for the purposes of s 27. Indeed, the failure to notify in this case foreclosed the possibility of any prosecution of the appellant under s 15 of the Occupational Health and Safety Act.

8    The Full Bench accordingly makes the following orders:

1. Leave to appeal refused.

2. Appeal dismissed.

3. The appellant shall pay the respondent's costs in a sum as agreed or, in default of agreement, as assessed.

LAST UPDATED: 14/03/2001