Exo Pty Ltd Trading As Tibby Rose Auto v Inspector Barnabas Ching. Application by Exo Pty Ltd Trading As Tibby Rose Auto to stay the judgment of Justice Marks given on 23.2.2006 in matter No Irc 5013 of 2001 [2006] NSWIRComm 113 (13 July 2006)

Last Updated: 13 July 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Exo Pty Ltd Trading As Tibby Rose Auto v Inspector Barnabas Ching. Application by Exo Pty Ltd Trading As Tibby Rose Auto to stay the judgment of Justice Marks given on 23.2.2006 in matter No IRC 5013 of 2001 [2006] NSWIRComm 113

FILE NUMBER(S): IRC 1836

HEARING DATE(S): 30/03/2006

EX TEMPORE DATE: 30/03/2006

PARTIES:

APPELLANT:

Exo Pty Ltd (t/as Tibby Rose Auto)

RESPONDENT:

Inspector Barnabas Ching

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

APPELLANT:

Mr K Spencer, Solicitor

SOLICITORS:

Spencer Whitby & Co.

RESPONDENT:

Mr R Reitano of counsel

SOLICITORS:

WorkCover Authority of New South Wales

CASES CITED: State of New South Wales (Department of Public Works and Services and Department of Education and Training) v the WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131.

LEGISLATION CITED:

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Haylen J

30 March 2006

Matter No IRC 1836 of 2006

Exo Pty Ltd t/as Tibby Rose Auto v Inspector Barnabas Ching

Application by Exo Pty Ltd t/as Tibby Rose Auto to stay the judgment of Justice Marks given on 23.2.2006 in matter No IRC 5013 of 2001

EX TEMPORE JUDGMENT

[2006] NSWIRComm 113

1 On 23 March 2006 Exo Pty Limited (t/as Tibby Rose Auto) filed a notice of appeal in relation to a judgment given by his Honour Justice Marks on 23 February 2006 arising from a prosecution under s 15(1) of the Occupational Health and Safety Act 1983. For the purposes of these proceedings I do not need to visit the terms of that judgment, but it was, in summary, a judgment dealing with submissions and evidence on penalty, his Honour having some considerable time before that found the company guilty of a breach of the Act. His Honour imposed a penalty of $90,000.

2 The notice of appeal seeks a review of that penalty and, in addition, seeks a stay. The grounds of the appeal are that the penalty imposed was too severe and, secondly, the penalty was disproportionate to the culpability of the appellant. In seeking a stay, the notice of appeal stated:

The penalty involves the payment of a substantial sum of money. The appellant is a small business and the payment of this sum, if it has to be paid, will create enormous hardship for the appellant.

3 In Justice Marks' judgment of 23 February 2006 his Honour noted in paragraph 11 that some evidence was led in a very general way concerning the financial resources of the defendant but, in the absence of a specific submission as to the appropriateness of considering any of the provisions of the Fines Act 1996 in relation to the financial circumstances of the then defendant, his Honour was, because of the state of the evidence, unable to do so.

4 In the course of the proceedings before me relating to the stay I raised with the applicant whether there was any evidence, either before his Honour or any evidence proposed in these proceedings, to make good or support that part of the notice of appeal dealing with the hardship the appellant says would be suffered by having to pay the fine of $90,000 before the appeal was determined. I was informed by Mr Spencer, appearing for the applicant, that a determination was made during the running of the sentencing proceedings before Justice Marks that detailed financial evidence would ultimately not be put forward, although a considerable adjournment had been granted for that purpose. Similarly on today's application for a stay there was no evidence put forward in relation to the financial circumstances of the appellant.

5 The thrust of the case for a stay appears to be that the surrounding circumstances, whereby an employee of the appellant was fatally injured, were such that a proper assessment of the appellant's culpability would lead to a finding of a lower penalty. During argument I indicated the difficulty I had with that submission in circumstances where his Honour's findings of fact were not challenged, where there was acceptance that this was a serious offence, where his Honour had held that the risk was foreseeable and where the penalty represented something a little over 16 per cent of the maximum that may have been imposed under the penalty regime applicable under the Occupational Health and Safety Act 1983.

6 On one view, and a view I express without having before me all the evidence before his Honour Justice Marks, it might be thought that a serious breach of the Act resulting in the death of an employee was very leniently treated with a penalty of $90,000. The sentencing task is a notoriously difficult one. There is no correct answer, but there is acknowledged to be an appropriate range, although being able to describe it is always difficult. It seems to me that on the material before the Court on this stay application it cannot be established that his Honour was in error by imposing a penalty in excess of an appropriate range.

7 A stay application requires the application of certain well understood principles. One place in which those principles are set out is in a decision of a Full Bench in the State of New South Wales (Department of Public Works and Services and Department of Education and Training) v the WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131. Those principles were set out by reference to the power to grant a stay found in s 190 of the Industrial Relations Act 1996.

8 It might be said by way of summary that the test laid down and acknowledged in that judgment is that sufficient reason needs to be shown to delay the first instance decision being effective and that the applicant for a stay is required to demonstrate reasons to warrant the exercise of the discretion in its favour. It was not necessary, as some of the older cases suggest, to establish a special or exceptional circumstance, but the issue was whether the applicant had demonstrated an appropriate case for a stay. The Court's consideration will involve and include a consideration of whether there is an arguable case, where the balance of convenience lies and what are the chances of success upon appeal. Other relevant considerations are: to ensure the appeal is not rendered nugatory; to determine where the justice of the case lies; to consider whether the applicant or the respondent stand to lose if a stay is not granted; and to consider whether, if a stay was not granted, the applicant might suffer some irreparable damage.

9 Looking at that variety of criteria it seems to me, firstly, that the case here for the appellant is not a strong case and it is difficult for me to assess that it has other than a slight chance of success.

10 The balance of convenience perhaps brings into consideration whether the appeal might be rendered nugatory if the stay was not granted. That is not the case here. In addition, I am not able to say, because of the absence of evidence, that the applicant would lose some particular benefit or would have its business adversely effected to some traumatic degree if this penalty has to be paid, or if there is some irreparable damage likely to be suffered. On the application of the usual tests, therefore, I am not satisfied that this is a matter where a stay should be granted.

11 I note that his Honour's judgment was delivered on 23 February 2006. I believe that by operation of the provisions of the Fines Act 1996 that fine was required to be paid within 28 days. The appellant may be aware of a facility to approach the Registrar to seek time to pay. That, in the first instance at least, is a matter for the Registrar. For reasons earlier indicated, the application for a stay is refused.

LAST UPDATED: 13/07/2006