T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira [2006] NSWIRComm 25 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira [2006] NSWIRComm 25

FILE NUMBER(S): IRC 6274

HEARING DATE(S): 03/11/2005

04/11/2005

DECISION DATE: 29/03/2006

PARTIES:

APPELLANT

Terrence Roland Tisdale

RESPONDENT

WorkCover Authority of New South Wales (Inspector Sequeira)

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

LEGAL REPRESENTATIVES

APPELLANT

Mr R Moore of counsel

RESPONDENT

Ms P Lowson of counsel

SOLICITOR:

Ms R Sutton

Moray & Agnew

CASES CITED: Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123

Glass v Flexible Packaging (Australia) Pty Limited [2005] NSWIRComm 93

Hinchliffe v Sheldon [1955] 3 All E R 406

House v The King (1936) 55 CLR 499

Inspector Bestre v T & Y Pty Ltd [2005] NSWIRComm 392

Inspector McColl v Combined Crane Rigging & Didovich [2004] NSWIRComm 48

Praglowski v Inspector Robins (WorkCover Authority of New South Wales) (Cahill J, Vice-President, Maidment and Peterson JJ, unreported, 6 July 1998)

Scevola v Inspector Sealey [2005] NSWIRComm 173

Searle v Baptist Community Services - NSW & ACT [2003] NSWIRComm at [33]

T&M Industries (Aust) Pty Ltd & Anor v WorkCover Authority of NSW (Inspector Sequiera) [2005] NSWIRComm 242

T&M Industries (Aust) Pty Ltd & Anor v WorkCover Authority of NSW (Inspector Sequeira) [2005] NSWIRComm 273

WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118

WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64

WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 214

LEGISLATION CITED: Crimes (Local Courts and Appeal Review) Act 2001

Crimes (Sentencing Procedure) Act 1999 s 10

Industrial Relations Act 1996 s 197

Occupational Health and Safety Act 1983 s 15 s 47 s 50 s 31N

Occupational Health and Safety Act 2000 s 26 s 92 s 105

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice-President

STAFF J

Wednesday 29 March 2006

Matter No IRC 6274 of 2003

T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira

Application by T & M Industries (Aust) Pty Ltd and Anor for leave to appeal and appeal against a decision and orders of Local Court Magistrate Maughan given on 9 September 2003 and 13 October 2003 in Matter Nos 20242200/02/2, 20242226/02/2, 20242234/02/2 and 20242253/02/2.

JUDGMENT OF THE COURT

[2006] NSWIRComm 25

1 This is an appeal pursuant to s 197(1)(b) of the Industrial Relations Act 1996, s 47(4) of the Occupational Health and Safety Act 1983 and s 105(3) of the Occupational Health and Safety Act 2000 against sentences imposed by Local Court Magistrate Maughan for various breaches of occupational health and safety legislation.

Background

2 On 25 July 2001, Inspector Brendan Sequeira of the WorkCover Authority of New South Wales visited the factory premises of T & M Industries Pty Ltd (the Company) to investigate a complaint about the operation of unfenced machinery. He was met by Mr Terrence Roland Tisdale, a director concerned in the day-to-day management of the Company. Mr Tisdale refused Inspector Sequeira's request to be accompanied by a particular employee during the inspection and Inspector Sequeira recorded in his notebook that "Mr Tisdale was extremely obstructive and abusive during inspection".

3 Following the inspection the Company was charged with two offences of breaching s 15(1) of the Occupational Health and Safety Act 1983 on 25 July 2001 arising from the operation of two unfenced turret punch press machines. Mr Tisdale was charged in connection with those contraventions pursuant to s 50 of the 1983 Act. In addition, Mr Tisdale was charged with obstructing, hindering or impeding an inspector in the exercise of the inspector’s functions in breach of s 31N(a) of the Occupational Health and Safety Act 1983.

4 Improvement notices were issued on 11 December 2001, requiring the Company to prevent people accessing dangerous parts of the machines by 15 February 2002 by guards or other means. Inspector Sequeira inspected the Company's factory premises on 22 February 2002, formed the view that the improvement notices had not been complied with, and the Company was subsequently charged pursuant to s 92 of the Occupational Health and Safety Act 2000 with failing to comply with two improvement notices without reasonable excuse. Mr Tisdale was charged pursuant to s 26(1) of the 2000 Act in relation to the Company's failure to comply with one of the improvement notices.

Decision at First Instance

5 In his decision of 9 September 2003, Magistrate Maughan found the Company guilty of the offences pursuant to s 15(1) of the 1983 Act on the basis that (among other things) there were no guards or fencing to prevent access to the rear of each machine and that the movement of the machines exposed nip-points and trap-points which created a risk to employees. Magistrate Maughan dismissed the charge against Mr Tisdale pursuant to s 50(1) on the basis that Mr Tisdale, having used all due diligence to prevent the contravention by the Company, had established a defence under s 50(1)(c).

6 His Worship found the Company guilty of the two offences under s 92 of the 2000 Act on the basis that the steps it took in response to the two improvement notices did not prevent people from accessing the rear of the machines (which remained unguarded and unfenced) and the evidence did not establish that the Company had any reasonable excuse for failing to comply with the notices. Unlike the deemed offence in relation to the s 15 charges, his Worship found Mr Tisdale guilty of the s 26(1) offence in relation to one of the s 92 charges against the Company. Magistrate Maughan was not satisfied that Mr Tisdale used all due diligence to prevent the Company's contravention.

7 Magistrate Maughan further found Mr Tisdale guilty of the offence pursuant to s 31N(a) of the 1983 Act. His Worship found that the Inspector entered the factory on 25 July 2001; asked to speak to an employee he had seen; Mr Tisdale refused the Inspector's request to speak to that employee; and that Mr Tisdale's manner was "decidedly unco-operative and to a degree hostile but did not amount to being abusive or belligerent".

8 On 13 October 2003, Magistrate Maughan made the following orders:

· the Company was fined $5,000 in relation to each s 15(1) offence;

· the Company was fined $3,000 in relation to each s 92 offence;

· Mr Tisdale was fined $2,000 in relation to the s 26(1) offence; and

· Mr Tisdale was fined $1,000 in relation to the s 31N(a) offence.

Application for leave to appeal and appeal

9 Both the Company and Mr Tisdale filed an application for leave to appeal and appeal each conviction and Mr Tisdale's sentence in relation to the s 31N(a) offence (Matter No IRC 6274 of 2003). In the Application for Leave to Appeal and Appeal, the Company and Mr Tisdale sought a stay of the orders of Magistrate Maughan of 13 October 2003. On 7 November 2003, Walton J, Vice-President, granted a stay until further order of the Court.

10 These appeal proceedings have a long history, essentially due to the appellants' dilatory prosecution of their application. The salient features are described below.

11 After proceedings commenced, the Company was deregistered by the Australian Securities and Investments Commission because of its failure to comply with certain provisions of the Corporations Law, in particular, the failure to file an annual return.

12 On 16 May 2005, after hearing Mr Tisdale's Notice of Motion to vacate hearing dates of 2 and 3 May 2005, the Full Bench made the following orders:

1. The hearing fixed for 2 and 3 May 2005 is vacated.

2. The time-table for the appeal shall be as follows:

(i) the appellants file and serve submissions and a chronology on or before 4.00pm 28 July 2005;

(ii) the respondent file and serve submissions on or before 4.00pm on 25 August 2005;

(iii) the appellants file and serve any submissions in reply on or before 4.00pm on 29 September 2005;

(iv) any application by the appellants to vary the timetable shall be made at least 7 days prior to the compliance dates (that is, the dates referred to in (i), (ii), and (iii) above), and shall be accompanied by an undertaking to pay the respondent's actual costs of the said application. The programme will not be varied unless made (with the necessary undertaking) prior to the compliance date and where a substantial fresh ground for variation is made out by the appellants.

3. In the event that the appellants fail to comply with any requirement in orders 2(i) to (iii), without having any variation to those orders as provided for in accordance with order 2 (iv), the Commission makes the following self-executing orders:

(i) the appeal is dismissed;

(ii) the stay is lifted;

(iii) the appellants will pay the respondent's costs of the appeal;

(iv) if self-executing orders are made, we give liberty to the respondent to make an application for indemnity costs.

4. The stay granted by Walton J Vice-President of the orders made by Magistrate Maughan is continued upon the following conditions:

(i) the second appellant is to pay into Court the sum of $10,000 within 14 days of the date of this judgment as security for the respondent's costs of the appeal;

(ii) the second appellant is to take all steps necessary to achieve the re-registration of the first appellant so as to enable it to prosecute its appeal.

5. The second appellant is to provide a written undertaking to the Industrial Registrar on or before 30 May 2005 that the second appellant will take all steps necessary to have the first appellant re-registered as a corporation with the Australian Securities and Investments Commission. Such registration is to be effected on or before 4.00pm on 9 September 2005.

6. Costs are reserved.

7. We fix 20 and 21 October 2005 for the hearing of the appeal (commencing 10am each day).

13 On 13 July 2005, Kavanagh J heard an application by Mr Tisdale to vary the orders of the Full Bench of 16 May 2005. Although Mr Tisdale had complied with the procedure prescribed by the Full Bench for variation, he had not complied with the conditions relating to the stay or to re-registering the Company. Kavanagh J made the following orders:

1. I extend the stay granted by Walton J, Vice President to 4pm on 18 July 2005.

2. The second appellant is to pay into court the sum of $10,000 by 4 pm 15 July 2005 as security for the respondent's costs of the appeal.

3. (i) The second appellant is to take all steps necessary to achieve the re-registration of the first appellant to be effected on or before 4pm on 9 September 2005 so as to enable it to prosecute its appeal;

(ii) A report back regarding the re-registration of the second appellant is listed before me for 9.30 am 14 September 2005.

4. The timetable for the preparation of the Appeal as set out in Orders 2(i), 2(ii) and 2 (iii) made on 16 May 2005 be set aside. I give the following orders:

The appellants file and serve on or before 4 pm on 1 September 2005:

(i) Submissions and Chronology,

(ii) Any application to amend the Appeal by way of Notice of Motion,

(iii) Any application to adduce fresh evidence (including an affidavit in support of the application and an outline of the grounds relied upon for the application).

5. The appellants have leave to issue Summonses for Production on the respondent by 20 July 2005 to be returnable before me at 10 am on 27 July 2005.

6. Any further application by the appellants to vary the Orders 2,3,4 shall be made at least 7 days prior to the compliance dates (that is, the dates referred to in Orders 2,3 and 4 above) and shall be accompanied by an undertaking to pay the respondent's actual costs of the said application.

7. In the event the appellants fail to comply with any requirement in Orders 2,3 and 4 above, without having any variation to those orders as provided for in accordance with Order 4, the court makes the following self-executing orders:

(i) the appeal is dismissed;

(ii) the stay is lifted;

(iii) the appellants will pay the respondent's costs of the appeal;

(iv) if self-executing orders are made, we give liberty to the respondent to make an application for indemnity costs.

8. The appellants are to pay the costs of the respondent of today's application.

14 On 27 July 2005 Kavanagh J found that Mr Tisdale had not complied with all requirements of Orders 2, 3 and 4 of 13 July 2005 and that the self-executing orders of the Full Bench (re-stated on 13 July 2005) had consequently taken effect. The respondent did not press for indemnity costs, and her Honour endorsed the following self-executing orders:

1. The appeal is dismissed.

2. The stay is lifted.

3. The appellants to pay the respondent's costs of the appeal.

15 In fresh proceedings (Matter No IRC 4298 of 2005), Mr Tisdale appealed to the Full Bench from the judgments of Kavanagh J given on 13 July 2005 and 27 July 2005. On 9 September 2005, the Full Bench stood Matter No IRC 6274 of 2003 over to a full hearing on 3 and 4 November 2005. On 31 October 2005 the Full Bench made the following orders by consent in Matter No IRC 4298 of 2005:

1. Leave to appeal is granted.

2. The appeal is upheld to the extent that Order 7 made by her Honour Kavanagh J on 13 July 2005 is set aside.

3. To the extent necessary, the "endorsement" appearing at paragraph 24 of Kavanagh J's judgment on 27 July 2005 is set aside.

4. The appellant and respondent to bear their own costs of the appeal in Matter No IRC 4298 of 2005.

5. The respondent to receive a certificate under the Suitors Fund Act if otherwise entitled.

6. (a) In the event that the appellants fail to comply with any requirement in Order 2(a) made by the President, without having any variation to those orders as provided for in accordance with Order 2(b), the Commission makes the following self-executing orders:

(i) the appeal is dismissed.

(ii) the stay is lifted.

(iii) the appellants will pay the respondent's costs of the appeal.

(b) If self-executing orders are made, we give liberty to the respondent to make an application for indemnity costs.

(c) In the event that re-registration is not effected prior to 23 September 2005, then the appeal will proceed on the basis that the first appellant is no longer participating in it, subject to any further order of the Court.

16 The Company was not re-registered before 23 September 2005, and the matters for determination in Matter No IRC 6274 of 2005 have consequently narrowed to those concerning Mr Tisdale: first, whether leave to appeal should be granted; if so, whether the appeal should be upheld in relation to Mr Tisdale's convictions for breaches of s 26(1) of the 2000 Act and s 31N(a) of the 1983 Act; and, if Mr Tisdale's application to overturn the s 31N(a) conviction is unsuccessful, whether the appeal should be upheld in relation to the sentence for that conviction.

Leave to Appeal

17 Mr R Moore of Counsel, who appeared on behalf of Mr Tisdale, submitted that, following amendments to s 197(2) of the Industrial Relations Act 1996, there is no binding determination on whether leave is required for the present appeal from the Local Court.

18 Section 197(2) of the Industrial Relations Act 1996 was amended with effect on 7 July 2003 so that the provisions of the Crimes (Local Courts and Appeal Review) Act 2001 are said to apply to any appeal brought under s 197(1). As the Full Bench noted in WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118 at [11]:

This raises for consideration whether or not the amendment made to s 197 displaces the judgment of the Full Bench of this Court in Drake Personnel Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 as contained within the joint judgment of the President, Wright J, and Vice-President, Walton J. It also raises questions as to whether the appeal is one as of right brought under s 23 of the Crimes (Local Courts Appeal and Review) Act 2001, or is an appeal as of right under s 56 of that Act. If Drake Personnel still applies then leave is required and the nature of the appeal is as described in the joint judgment referred to.

19 WorkCover v Keough's Plant Hire Pty Ltd involved a prosecutor's appeal from the sentence imposed by a Local Court Magistrate for contravention of the Occupational Health and Safety Act 2000. Having determined to grant leave in any case, it was not necessary for the Full Bench to decide the issue.

20 A similar argument was raised in Scevola v Inspector Sealey [2005] NSWIRComm 173, which involved a defendant's appeal against the severity of a sentence imposed by an Industrial Magistrate under the Workplace Injury Management and Workers Compensation Act 1998. Mr Scevola argued that on a proper construction of the Justices Act 1902 (as amended in March 1999) in combination with the provisions of Chapter 4, Part 7 of the Industrial Relations Act the appeal to the Commission in Court Session was an appeal de novo, not requiring leave. The Full Bench rejected this argument at [10] - [11]. However, as Mr Moore submitted, Scevola v Inspector Sealey did not fully determine the issue raised in this appeal, because those proceedings related to a conviction before the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 became operative.

21 We have come to the view that, if leave be required, it ought to be granted. The appeal in relation to the s 31N(a) conviction raises matters of significant public importance (not the least of which is the manner in which WorkCover Inspectors conduct their investigations and the degree to which they can do so without hindrance) and an issue of law relating to the type of conduct necessary to establish a breach of s 31N(a). Similarly, the appeal in relation to the s 26(1) conviction raises important issues concerning the interpretation of improvement notices and consequential matters relating to appeals from deemed contraventions where the corporation has been deregistered. Accordingly, as we intend to adopt the approach of the Full Bench in Scevola v Inspector Sealey, it is not necessary to resolve whether leave is in fact required. That is a matter which should be determined following comprehensive written and oral submissions in proceedings where it is necessary to resolve the controversy.

The Section 26(1) Conviction

22 The improvement notice the subject of Mr Tisdale's s 26(1) conviction - No. 242912 - required the Company to take the following measures by 4.30pm on 15 February 2005:

Reasons for Issue

Person(s) may be exposed to risk of injury whilst operating or working in the vicinity of a turret punch press type "Vipros 358 King", model 305080K, due to the unguarded areas around the tabletop and carriage of the machine. Sheets of metal that overhang the table-top can move along the length of the tabletop with the carriage, and are a cutting hazard.

Measures to be taken

1) You shall ensure the health and safety of persons operating or working in the vicinity of the Turret Punch Press, type "Vipros 358 King", model 305080K, by providing a safe system of work to prevent persons from accessing the dangerous parts of the machine including the table top and carriage areas and 2) All guarding measures must comply with "AS 4024.1 Safeguarding of machinery: general principles" OR 3) You may comply by any other means.

23 Mr Tisdale stated in the Application for Leave to Appeal and Appeal that Magistrate Maughan had committed three errors of law in relation to the s 26(1) conviction: (a) by failing to take adequate account of the terms of the improvement notices (specifically, that they could be properly complied with "by other means"); (b) by finding that the Company had "no reasonable excuse" for its failure to comply with the improvement notices and (c) by finding that Mr Tisdale had not acted with "all due diligence" to ensure the Company's compliance with the improvement notices.

24 Magistrate Maughan found:

The notices required T&M to prevent persons from accessing dangerous parts of the machine(s) including table top and carriage areas by guarding or other means. The notices were served on 11/12/01 requiring compliance by 15/2/02 and the evidence was as to the situation on 22/2/02 therefore the time requirements of the legislation had been complied with.

On the evidence it is clear that the actions of the defendant in regard to the reprogramming, table top extensions, and training of employees did not prevent persons from accessing the rear of the machine(s) which remained unguarded and unfenced and which posed a risk to safety.

Further on all of the evidence it is not established that the defendant had any reasonable excuse for failing to comply with the notice.

I am therefore satisfied that each of these informations has been proved against the defendant.

...

In terms of the breach of the "2000 Act" involving the company's failure to comply with the improvement notice No. 242912 issued on 11/12/01 the situation [relating to the s 26 charge against Mr Tisdale] is entirely different.

Again there is no issue as to Mr Tisdale's position and duties as a Director, and again it is a [sic] Mr Moore put it "a question of due diligence".

Mr Tisdale was aware after 25/7/01 that action was required to comply with the requirements of Workcover Authority and was involved in, if not responsible for, the negotiations relating to and withdrawal of several improvement notices.

Although the evidence disclosed that he took some action and made some inquiry as to the means available to eliminate the risk and comply with the notice the subject of this information, eg. by physical, mechanical, electro-optical, or electro-magnetic devices, the time within which he did this could not possibly be said to be acting with due diligence.

I am satisfied that this information has been established against the defendant.

25 A preliminary matter concerns the extent to which Mr Tisdale can challenge the Company's conviction under s 92 of the 2000 Act when the Company (no longer a party to the appeal) has been de-registered. Although this was raised with counsel for both parties, the argument was never fully developed beyond a cursory submission reflecting the opposing positions. For reasons which we shall state below, it is not critical to decide the matter in this case: we have determined to dismiss the appeal as to this charge in any event. However, we consider it appropriate to record some preliminary views, bearing in mind that the issue will have to be decided at a later date with the benefit of comprehensive argument.

26 Section 26 of the 2000 Act provides:

26 Offences by corporations—liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

27 One of the essential elements of an offence under s 26(1) is the contravention by a corporation of any provision of the Act or regulations - in this case, the contravention by the Company of s 92. For the purpose of s 26(1), this is simply a matter to be proved beyond reasonable doubt: sub-section (2) makes it clear that there may be a conviction under s 26(1), whether or not the corporation has been proceeded against or convicted. Sub-section (3) also emphasises the extent to which s 26(1) operates independently of any relevant criminal proceedings involving the corporation.

28 Although the syntax of sub-section (3) is somewhat awkward, it does suggest the following scenarios: it appears that a director may be found guilty of an offence under s 26(1), and yet, in separate criminal proceedings, the corporation may be acquitted of the underlying offence. On the other hand, it is conceivable that, notwithstanding a conviction against a corporation, the director may be acquitted in separate proceedings on the basis that one of the essential elements - the contravention by the corporation - has not been proven beyond reasonable doubt. Although such cases would be highly unusual (and extremely unlikely to occur in practice), it seems to us that sub-section (3) admits these possibilities. This reinforces our preliminary view that in appellate proceedings against a conviction under s 26(1), the contravention by the corporation is open to challenge on the ordinary principles governing appeals - as is any essential element - regardless of the status of the corporation or any proceedings against it.

29 Contrary to the respondent's submissions, WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd (2000) 102 IR 40 does not stand in the way of this preliminary view. If anything, it supports it. In determining whether a certificate of conviction was admissible pursuant to s 178 of the Evidence Act 1995, the Full Bench held that the fact of a conviction of a corporation is not a fact in issue in separate proceedings against a director or manager of the corporation under s 50 of the 1983 Act (which is equivalent to s 26 of the 2000 Act for the purpose of this discussion). Rather, the essential element of the offence was the contravention of the Act by the corporation not the conviction of the corporation.

30 However, as foreshadowed, Mr Tisdale has not persuaded us that there are any grounds of appeal in relation to his conviction under s 26(1). There is nothing to suggest that Magistrate Maughan failed to take adequate account of the terms of the improvement notice. Notwithstanding the appellant's submissions, improvement notices are not acts of parliament but are to be construed having regard to their nature and purpose, the way in which they are issued, and the statutory framework which gives them legal force. They are administrative instruments designed for the purpose of enforcing occupational health and safety legislation, protecting against safety hazards and preventing injuries arising from such hazards. They should be read in a practical, common sense manner, albeit having due regard to the consideration that a breach of an improvement notice may give rise to criminal sanctions.

31 The appellant attached particular significance to the concluding sentence in improvement notice no. 242912: "OR 3) You may comply by any other means." Focussing on this sentence begs the question: with what requirement must the Company comply? It is clear from his decision that Magistrate Maughan turned his mind to this question; correctly identified the answer; and immediately adverted to the fact that the means of compliance were not prescribed: "The notices required T&M to prevent persons from accessing dangerous parts of the machine(s) including table top and carriage by guarding or other means". Magistrate Maughan's later reference to fencing emphasised his Worship's awareness that alternative means of compliance would be acceptable: guarding was mentioned in the notice, but fencing was not.

32 We agree with Mr Moore's written submission that if compliance had been achieved by other means, the existence or non-existence of a fence would be irrelevant. But that submission highlights the issue his Worship had to (and proceeded to) determine: had compliance been achieved by other means? His Worship found, on the facts, that although the Company had taken some steps in an effort to comply with the notice, these steps were inadequate: persons could still gain access to the rear of the machine(s) which posed a risk to safety. The fact that Magistrate Maughan observed that the machine remained unfenced does not indicate that his Worship was immutable as to methods of compliance; it was simply an observation that, in the absence of satisfactory alternatives, one practical, effective method of preventing access to the rear of the machine(s) (which the Company had ultimately employed by early April 2002) had not been implemented by the necessary date.

33 Nor can we see any basis for questioning his Worship's findings that, on all of the evidence, the Company had not established any reasonable excuse for failing to comply with the notice and that Mr Tisdale could not possibly be said to have been acting with all due diligence. On the evidence, the fencing which was ultimately employed to prevent access to the rear of the machine was completed within approximately six weeks. The Company had just over 9 weeks between the date of the improvement notice and the compliance date to prevent access to the rear of the machine; moreover, it was well aware through its negotiations in relation to the issue and withdrawal of prior improvement notices arising from the same risk to safety that access to the rear of the machine was a matter of concern for Inspector Sequeira. In fact, Inspector Sequeira's contemporaneous notes of his meeting with Mr Tisdale on 5 December 2001 show that at that time, the work Mr Tisdale was intending to undertake to obviate the risks to safety included fencing the machine. There is no basis to suggest that it was not reasonably practicable to undertake that work and have it completed by the compliance date. We reject Mr Moore's submissions that it was improper for his Worship to take earlier discussions into account (as going to Mr Tisdale's awareness that action was required to satisfy the WorkCover Authority) when considering whether Mr Tisdale acted with "all due diligence".

The Section 31N(a) Conviction

34 Section 31N(a) of the 1983 Act provides:

31N Offence: obstruction and compliance

A person must not:

(a) obstruct, hinder or impede an inspector in the exercise of the inspector’s functions under this Division

35 The information and summons the subject of Mr Tisdale's s 31N(a) conviction contained the following description of the offence:

Today, the informant informs me a Justice of the Peace, that the defendant has committed the following offence:

Breach of section 31N(a) of the Occupational Health and Safety Act, 1983. The defendant being a person who was present at premises known as T & M Industries (Aust.) Pty Limited located at 23 Britton Street, Smithfield in the state of New South Wales did on 25 July 2001 obstruct, hinder or impede an inspector in the exercise of the inspector's functions.

Date of Offence: 25 July 2001

Full Offence Description:

The defendant, on the said date, at the said place, obstructed, hindered and impeded an inspector in the exercise of the inspector's functions by reason that the defendant:

(a) refused to allow the informant access to employees of T&M Industries (Aust) Pty Limited at the premises;

(b) [w]as abusive and aggressive towards the informant throughout the course of his inspection of the premises.

36 Inspector Sequeira's notebook contained the following entry for 25 July 2001:

25/7/01 - 2.15pm - Attended premises of "T & M Industries Pty Ltd" at 23 Britton Street Smithfield NSW 2164 in response to complaint 1-2791. Issues - 1) No guard fitted on punching machine 2) One employee working alone at nightshift on punching, laser cutting and bending machine. Concern if accident occurred, no-one would know until morning shift starts. Met by Terry Tisdale. Owner. Denise Walsh - chairperson of Safety Committee. Employer stated that she was unavailable to attend inspection. I requested the attendance of another employee I observed in the factory however Mr Tisdale stated that he was not available to attend inspection. I advised Mr Tisdale of my powers under section 31 of the O H and S Act and my request to ensure an employee representative was present during an inspection of the workplace, to ensure all parties / stakeholders were fairly represented. Employer then escorted me to a room in premises where he asked me to wait. I waited for 10 minutes then advised him that I was going outside to make a phone call. I telephoned to speak to Glenn McCarthy to advise him of difficulties I was having with employer however he was not present in the office. Met by Denise Walsh Contract Manager. No Safety Committee. Also met by Ming Tir, Foreman.

Inspected Turret Punch Press, "Vipros 358 King" model "305080K". Machine in operation at time of inspection, punching holes in sheets of metal. X-axis carriage moves metal sheet. Sheet being moved is hazardous at times, it overlaps the table and acts as a guillotine. Inspected 'Vipros 255' Turret Punch Press model only type on premises. In use at time of inspection. Person operating machine at time of inspection Van Ha, machine operator. Sheets of metal overhanging table at times. Railing fence around machine, however this does not prevent person accessing moving parts of machine.

Inspected "Lasmac LC-2415 CX II". No apparent guards - need to review with specialists. I asked Mr Tisdale if any employees were ever required to work on machinery such as the turret punches or lasers, unsupervised with no other person present. He said "yes, they know what they are doing". I advised him of the potential risks associated with this practice and asked him what control measures had been implemented in case of an emergency. He stated that none were required.

During inspection, Mr Tisdale was extremely obstructive and abusive during inspection. At one point, I advised him that it was an offence to obstruct an Inspector under the OHS Act 1983. Prior to vacating premises, I advised Mr Tisdale that he may be served with fines for 2 unguarded Turret punches and Improvement Notices for these plus unsupervised employees. Mr Tisdale stated that it was not his responsibility to guard machinery supplied to him without guards. I advised him that his obligations under s 15 OHS Act 1983 were such that all machinery in use at his premises must be securely fenced. Left premises at 3:20pm after Mr Tisdale refused to arrange a suitable appointment time to revisit him to serve Notices.

37 In evidence-in-chief, Inspector Sequeira elaborated:

Q. And did you seek to approach or talk to anyone else at the work place at the time?

A. Yes when I entered the factory area of the premises where various machines were in operation, I attempted to address a person I believed to be an employee in the work place and Mr Tisdale indicated that that person was not available for me to speak to, they were busy with work or words to that effect. I spent some time seeking to have an employee representative during my inspection but Mr Tisdale continually indicated that no one was available.

Q. For what purpose did you want to speak to this unidentified person?

A. For the purposes of having a greater understanding of how safety operated in that work place, how machinery operated in that work place, for the purpose of assessing safety issues in the work place if there were in fact any.

and:

Q. You gave evidence in relation to Mr Tisdale refusing you access to speak to another person on that day, you recall that?

A. Yeah.

Q. Can you describe to his Worship what you observed about Mr Tisdale's manner during that?

A. Yes about his manner, well he was extremely belligerent, hostile, yelling at me, telling me - saying things like I didn't know what I was doing, I've never seen machinery before and it was - basically his manner was belligerent, hostile, standing over me. Every time I moved around the work place he'd stand over me, and I'd start to talk to an operator of the machine and he would continue to berate me and yell at me and tell me I didn't know what I was doing, that's essentially his manner.

38 In cross-examination, Inspector Sequeira gave the following evidence consistent with his evidence-in-chief:

Q. Now can I suggest to you that when you were talking to people such as Van Ha you were talking to them in a conversation between you and he and no one was saying anything at the time?

A. Every time - to answer that honestly every time I tried to speak to anyone in that work place Mr Tisdale intervened and spoke over me.

and

Q. And you could have requested Miss Walsh, Mr Tisdale, Ming Tihr, any person to provide to you the information concerning the safe working procedure?

A. Under the circumstances it was very, very difficult to do that.

Q. But did you ever make the formal request to any person that they do that?

A. I made a number of attempts with Mr Tisdale and talking with other people in that work place to have them answer questions required of me.

and

Q. And what I am suggesting to you sir is this that you were allowed to carry out the inspection as you wanted on that day?

A. No that's not correct.

Q. Can I say you were observed to carry out the inspection by Miss Walsh and Mr Tir and Mr Tisdale?

A. Yes.

Q. You approached various operators and asked them questions uninterrupted?

A. Incorrect.

Q. Well can I suggest to you Miss Walsh will say at this Commission you were uninterrupted?

A. You may suggest that but I was interrupted.

Q. And in terms of that you were allowed to carry out any inspection you required?

A. That's not correct.

39 Mr Tisdale denied raising his voice at the Inspector or being hostile. According to Mr Tisdale's evidence, when Inspector Sequeira attempted to speak to an employee soon after arriving at the factory, Mr Tisdale informed him that that employee was not the appropriate person to speak to about machinery. In cross-examination Mr Tisdale explained that the person was the painter, who was leaving to pick up some paint. There was no evidence that this explanation was offered to Inspector Sequeira at the time of the inspection or indeed at any time prior to the hearing. Nor was Mr Tisdale's version of the conversation - including the assertion that the man was leaving the factory and the assertion that the person was not appropriate (as distinct from being too busy or not available) - put to Inspector Sequeira in cross-examination.

40 Mr Tisdale gave the following evidence in cross-examination concerning the employees who ultimately attended the inspection:

Q. The inspector indicated to you that he wanted to speak to an employee, a representative, do you recall that?

A. I do.

Q. And you told the inspector to wait in the reception room I think you said?

A. No, the main meeting room.

Q. The main meeting room, correct?

A. Correct.

Q. And during that time you then brought in Ms Walsh?

A. I did.

Q. And Mr Tehr?

A. I think we met Mr Tehr in the factory.

Q. And Ms Walsh is not a sheet metal worker is she?

A. She has a degree in building economics.

Q. And her position was contract manager I think?

A. Contracts.

Q. And Mr Tehr was a foreman on the shop floor, I take it?

A. Sheet metal.

Q. And you selected those two persons to accompany the inspector on his inspection, did you not?

A. I thought they were the most qualified people, correct.

41 Ms Walsh and Mr Ha also gave evidence about the inspection on 25 July 2001; Mr Ming Tir did not. Mr Ha's evidence did not bear upon the issues relevant to s 31N(a). Ms Walsh's evidence was relevant to the extent that she described herself and Mr Tisdale as standing apart from Inspector Sequeira during his inspection of the factory floor. This was largely consistent with Mr Tisdale's evidence but contradicted Inspector Sequeira's evidence in cross-examination that he was accompanied by Messrs Tisdale and Ming Tir and Ms Walsh during his inspection of each machine. This difference was not put to Inspector Sequeira in cross-examination; nor was it put to him that Mr Tisdale was not with him throughout the inspection. Ms Walsh further stated that Inspector Sequeira "seemed satisfied with everything that he'd inspected" and "did not indicate that he had not carried out what he wanted to do that day". She did not give any evidence concerning Mr Tisdale's demeanour, and conceded that she did not observe Mr Tisdale's behaviour before she met Inspector Sequeira at the board-room immediately before going to the factory floor.

42 Magistrate Maughan found:

The Information against Terrence Tisdale pursuant to s 31N(a) of the Occupational Health and Safety Act 1983 alleges that on 25th July 2001 he obstructed, hindered, or impeded and [sic] inspector in the exercise of the inspectors functions.

The evidence clearly establishes that on 25/7/01 shortly after entering the factory inspector Sequeira asked to speak to an employee he saw by virtue of the authority given in Section 31I of the Act. The inspector gave evidence that Tisdale refused to allow him to speak to that person. That evidence is supported by Tisdale's evidence that he determined that this was not an appropriate person to speak to and that he should talk to someone else, ultimately referring the inspector to his foreman Mr Ming Tir.

Both Crown and Defence have referred the Court to Hinchcliff [sic] -v- Sheldon (1955) 3 All E R 406 in which that Court said, inter alia, "Once it is established that the inspector and the appellant were ad idem about the course they should jointly follow to give effect to the inspectors desire we would be loath to conclude that there was in fact any obstruction in the requisite sense. We do not consider a momentary expression of view resiled from shortly thereafter to constitute such an offence."

The evidence in this case before me clearly establishes that the inspector and Tisdale were not "ad idem" nor was there "a momentary expression of view that was resiled from shortly thereafter".

The crown put that the evidence established that Mr Tisdale's manner was hostile, abusive, and belligerent. It is the Courts finding given the standard of proof required that Mr Tisdale's manner was decidedly uncooperative and to a degree hostile but did not amount to being abusive or belligerent.

In finding that the inspector was prevented by Mr Tisdale from speaking to an employee of his choice in these circumstances the Court finds the offence proved against the defendant.

43 We note with respect that the quotation attributed by Magistrate Maughan to Hinchliffe v Sheldon [1955] 3 All E R 406 was in fact from the judgment of the Full Bench of this court in Praglowski v Inspector Robins (WorkCover Authority of New South Wales) (Cahill J, Vice-President, Maidment and Peterson JJ, unreported, 6 July 1998).

44 Mr Tisdale asserts in the Application for Leave to Appeal and Appeal that Magistrate Maughan committed an error of law in determining that the facts, as found, established the elements of an offence under s 31N(a) of the 1983 Act.

Appellant's Submissions

45 Mr Moore submitted that the facts as found could not support the charge as particularised. The second particular alleged that Mr Tisdale's manner was "abusive and aggressive towards the informant". However, Magistrate Maughan's finding that Mr Tisdale's manner was "decidedly unco-operative and to a degree hostile but did not amount to being abusive or belligerent" expressly contradicted this particular. So much was conceded by Ms Lowson of counsel who appeared on behalf of the respondent.

46 In relation to the first particular, Mr Moore submitted that s 31N(a) contemplated three separate offences by the use of the three words "obstruct, impede or hinder" and that the prosecution must be limited in terms of the charge and the way it conducted its case to the allegation that Mr Tisdale "obstructed" Inspector Sequeira in carrying out his duties. "Obstruction" should be understood in the manner described by Lord Goddard CJ in Hinchliffe v Sheldon [1955] 3 All E R 406 at 408: in this case, making it more difficult for Inspector Sequeira to perform his duties.

47 According to Mr Moore, the only fact supporting the conviction was the finding that Inspector Sequeira was "prevented from speaking to an employee of his choice". Relying upon Praglowski, Mr Moore submitted that whether that one incident could be relied upon to establish the offence depended upon whether the Inspector, during the course of his inspection, subsequently acquiesced in the decision not to interview the particular employee in question. Mr Moore submitted that from the time Mr Tisdale escorted Inspector Sequeira (who went willingly) to the meeting room so that Mr Tisdale could "find someone appropriate to accompany Inspector Sequeira", there was no evidence of any subsequent disagreement and Magistrate Maughan should have found that they were "ad idem" for the rest of the inspection. In the context of an inspection which lasted over an hour; included discussions between Inspector Sequeira and various machine operators; and afforded Inspector Sequeira the opportunity to take numerous photographs, Mr Moore submitted that the fact that Inspector Sequeira was prevented from speaking to one employee at the very beginning of his visit was not sufficient to establish the essential elements of the offence and the conviction and penalty should be set aside.

48 Mr Moore further submitted that the first particular alleged that Mr Tisdale had refused to allow Inspector Sequiera access to "employees" of the Company and yet the Magistrate's findings referred to one employee only. Moreover, Mr Moore submitted that there was an issue as to whether access was "refused" - Mr Tisdale merely stated that that particular employee was "not appropriate".

49 Finally, in written submissions in reply, Mr Moore submitted that "the facts as found were not open on the evidence". This was not foreshadowed in the Application for Leave to Appeal and Appeal nor in the appellant's written submissions and was not referred to by Mr Moore in oral submissions. With no elaboration as to which findings were not open on the evidence, or justification for the assertion, we do not propose to consider this aspect of the appellant's appeal against his conviction pursuant to s 31N(a).

Respondent's Submissions

50 During the hearing, Ms Lowson sought leave to file a notice of contention that the offence could have been found proven on evidence which fell outside the particulars. In support of her application, Ms Lowson submitted that the finding that "Mr Tisdale's manner was decidedly unco-operative and to a degree hostile" could, of itself, have established the charge. Although this submission may well be correct, Magistrate Maughan was confined by the particulars (as are we), and this constraint should not be overcome by a notice of contention. Ms Lowson's application was refused.

51 In relation to the first particular, Ms Lowson filed written submissions that it was open to Magistrate Maughan, on the evidence, to find that Mr Tisdale refused to allow Inspector Sequeira to speak to an employee with whom he wanted to speak; there was no error in finding that this refusal constituted obstructing, hindering or impeding the Inspector in the course of his duties; and the fact that the Inspector was subsequently given access to the premises did not mitigate the offence. There is no requirement for the Inspector to persist in a request, once refused, in order for the offence to be established. In fact, such an approach could lead to an undesirable fetter on inspectors in practice; for example, an inspector may decide not to insist to prevent the situation from deteriorating further to no-one's benefit. A failure to insist should not be taken to mean that an inspector had acquiesced in the refusal to meet his original request.

52 Ms Lowson further submitted that there was no attempt by the appellant at first instance either when cross-examining Inspector Sequeira or examining Mr Tisdale in chief to establish either that the refusal to allow access to the employee was momentary and was resiled from shortly afterwards by Mr Tisdale, nor that there was agreement by the Inspector as to the appropriateness of the course which was in fact imposed upon him by Mr Tisdale. Inspector Sequeira went along with Mr Tisdale's orchestration of the inspection, but there is no evidence that he saw it as a suitable replacement for talking to the person he wanted to talk to.

Consideration

53 Given Ms Lowson's concession, correctly made, that the second particular cannot be sustained in the face of Magistrate Maughan's findings, Mr Tisdale's appeal to overturn his conviction under s 31N(a) depends upon whether it was open to his Worship, on the evidence, to find that the first particular was made out; and, if so, whether that allegation could, at law, establish the offence.

Was there a refusal to speak to employees?

54 In our view, it was open to Magistrate Maughan to find, on the evidence, that the first particular had been made out on the relevant standard. Mr Moore conceded that the Inspector identified a particular employee he wished to speak to; that there was a disagreement between Mr Tisdale and the Inspector about the Inspector talking to that employee; and that the Inspector did not speak to the identified employee. However, Mr Moore submitted that there was no refusal, on the basis that (according to Mr Tisdale's evidence) Mr Tisdale did not say the Inspector "could not" speak to the employee. Rather, Mr Moore submitted, Mr Tisdale "identified the person was inappropriate".

55 We reject Mr Moore's submission that there was no "refusal". The Oxford English Dictionary (2nd edition) includes the following definition of the verb "to refuse":

To decline to give or grant; to deny (something asked) to a person (or thing).

Inspector Sequeira gave evidence in chief (consistent with his notebook) that he asked to speak to an employee, but Mr Tisdale stated that the employee was "not available". It was open to Magistrate Maughan to accept the Inspector's evidence. Moreover, Magistrate Maughan was correct in construing this evidence as a refusal.

56 Nor do we accept Mr Moore's submission that the particular was not made out because it referred to "employees" and Magistrate Maughan's findings were limited to a refusal to allow access to one employee only. The particular must be understood in the context of the offence, the powers granted to inspectors in Division 4 of the 1983 Act, and, more broadly, in the context of Mr Tisdale's corresponding obligations during Inspector Sequeira's attendance. The provisions in Division 4 of the 1983 Act are designed to give WorkCover inspectors the necessary powers to enforce occupational health and safety legislation, which includes the prevention of workplace accidents. Upon entering the factory premises, Inspector Sequeira was empowered to require any person in or about those premises to answer questions or otherwise furnish information, and Mr Tisdale was obliged to assist him, to the extent reasonably necessary, to carry out those functions. By preventing Inspector Sequeira from speaking to one employee, Mr Tisdale failed in his obligation to assist Inspector Sequeira to speak to any person on the premises.

Was the Inspector obstructed, hindered or impeded in the exercise of his functions by reason of the refusal?

57 We now turn to consider whether the conduct which established the first particular is capable of establishing a breach of s 31N(a) at law. The case below proceeded on counsels' uniform submissions based on Hinchliffe that the offence of obstruction would be established if his Worship found that Mr Tisdale had "made it more difficult for Inspector Sequeira to perform his duties". There was no suggestion by either counsel that we should adopt an alternative approach, and, accordingly, for the purposes of this appeal, we will adopt the ratio of Lord Goddard CJ in Hinchliffe.

58 We do not accept Mr Moore's submissions that Mr Tisdale's refusal to allow Inspector Sequeira speak to the employee was the only evidence available to establish the offence. It is clear that Magistrate Maughan took into account his finding as to Mr Tisdale's "unco-operative and to a degree hostile" demeanour when assessing whether the charge of obstruction had been made out on the basis of the refusal. In the light of Mr Moore's submissions that the refusal was not obstructive, but rather an attempt by Mr Tisdale to facilitate the Inspector's reconnaissance by finding a more appropriate person to question, Mr Tisdale's demeanour at the time of the refusal was highly relevant.

59 Inspector Sequeira gave direct evidence of Mr Tisdale's demeanour at that point:

Q. You gave evidence in relation to Mr Tisdale refusing you access to speak to another person on that day, you recall that?

A. Yeah.

Q. Can you describe to his Worship what you observed about Mr Tisdale's manner during that?

A. Yes about his manner, well he was extremely belligerent, hostile, yelling at me, telling me - saying things like I didn't know what I was doing, I've never seen machinery before and it was - basically his manner was belligerent, hostile, standing over me. Every time I moved around the work place he'd stand over me, and I'd start to talk to an operator of the machine and he would continue to berate me and yell at me and tell me I didn't know what I was doing, that's essentially his manner.

60 In addition to this direct evidence of Mr Tisdale's demeanour at the time of the refusal, there was ample evidence from which Magistrate Maughan could infer that Mr Tisdale was "unco-operative and to a degree hostile" at that time. First, Inspector Sequeira felt sufficiently provoked by this incident to attempt to call his superior shortly afterwards to advise of the difficulty he was having, and, at some point during the inspection of the factory floor, to advise Mr Tisdale of his powers under the 1983 Act.

61 Secondly, Inspector Sequeira gave evidence that Mr Tisdale's demeanour remained unco-operative throughout his visit. This evidence included consistent statements during his evidence in chief and under cross-examination that Mr Tisdale talked over him when he attempted to talk to machine operators, and that it was "very, very difficult" in the circumstances to obtain information from employees. We note in particular the following passage of Inspector Sequeira's cross-examination:

Q. Now can I suggest to you that when you were talking to people such as Van Ha you were talking to them in a conversation between you and he and no one was saying anything at the time?

A. Every time - to answer that honestly every time I tried to speak to anyone in that work place Mr Tisdale intervened and spoke over me.

62 Finally, the acrimonious nature of their parting was relevant: according to the Inspector's notebook, at the end of the inspection, Mr Tisdale refused to arrange a suitable appointment time for the service of Notices.

63 The only evidence to directly contradict the Inspector's evidence as to Mr Tisdale's demeanour was that of Mr Tisdale, and it is clear from Magistrate Maughan's findings that he preferred the Inspector's version of events. Although Ms Walsh's evidence that Mr Tisdale stood apart during the inspection may be regarded as indirectly contradicting the Inspector's evidence, we note that this alternative version of events was not put to the Inspector during cross-examination and accordingly the Magistrate was entitled to attribute little weight to it.

64 It was open to Magistrate Maughan to infer, from the combined weight of the evidence described above, that Mr Tisdale was "unco-operative and to a degree hostile" for the entirety of the Inspector's visit, and furthermore to find, on the basis of this inference in combination with the Inspector's direct evidence, that Mr Tisdale displayed such a demeanour at the time of the refusal. Having thus found that the Inspector was prevented by Mr Tisdale, in an unco-operative and (to a degree) hostile manner, from speaking to an employee of his choice, Magistrate Maughan found that Mr Tisdale had made it more difficult for the Inspector to perform his duties, which included (at the Inspector's discretion), requiring any person in or about those premises to answer questions or otherwise furnish information (s 31I(e) of the 1983 Act). Subject to our consideration of Praglowski subsequently, we consider that this finding was reasonably open to Magistrate Maughan, and does not demonstrate any error of law.

Praglowski: was the refusal a momentary expression of view, resiled from shortly thereafter or subject to later acceptance by the Inspector?

65 Having determined that (a) it was open on the evidence for Magistrate Maughan to find that the first particular was made out, and (b) that there was no error in finding that the refusal (in the circumstances of Mr Tisdale's demeanour at the time) could constitute obstruction, we come to the crux of the appeal in relation to the s 31N(a) conviction: is this a case, such as Praglowski, where an initial, brief, obstruction is cured, or resiled from?

66 The facts of Praglowski may be shortly stated. A WorkCover Inspector, investigating an accident, attended the workplace (a hotel) to ascertain the managerial hierarchy because a number of his telephone calls had not been returned (apparently because the relevant person no longer worked there). The manager, who was busy that morning organising a luncheon for 600 people, had instructed staff that he was not to be disturbed. Nonetheless, staff sent him a message that there was somebody waiting to see him and that he must come to the front desk. Following a short, animated discussion (which may have included a request that the Inspector leave the premises), the manager and the Inspector agreed that arrangements would be made at a later date which would permit the Inspector's functions to be exercised.

67 It is in that context that the Full Bench's ratio, quoted by Magistrate Maughan, must be understood:

Once it is established that the inspector and the appellant were ad idem about the course they should jointly follow to give effect to the inspector's desires, we would be [loath] to conclude that there was in fact any obstruction in the requisite sense. We do not consider a momentary expression of view, resiled from shortly thereafter, to constitute such an offence.

68 In keeping with Praglowski, Mr Moore sought to establish that the refusal to speak to the initial employee was an isolated event, rectified by the introduction of Ms Walsh, and that once the Inspector left the meeting room the inspection proceeded in accordance with the Inspector's wishes. In our earlier consideration of the evidence supporting the charge (particularly concerning Mr Tisdale's demeanour throughout the inspection) we have foreshadowed our disagreement with this contention.

69 There is nothing to support the assertion that Mr Tisdale's transgression was a "momentary expression of view, resiled from shortly thereafter". The finding of obstruction was based on two elements: the refusal, and Mr Tisdale's demeanour at the time. There was no attempt by the appellant at first instance either when cross-examining Inspector Sequeira or examining Mr Tisdale in chief to establish that the refusal was momentary and was resiled from shortly afterwards by Mr Tisdale. Inspector Sequeira did not speak to the identified employee at some later time; nor was this offered. Furthermore, as we discussed earlier, the evidence which substantiated Magistrate Maughan's findings as to Mr Tisdale's demeanour derived from both Mr Tisdale's conduct during the initial refusal, and his conduct throughout the inspection of the factory floor, which took place after Ms Walsh had been introduced to Inspector Sequeira in the meeting room. Not only is there no evidence to support any allegation that Mr Tisdale resiled from his unco-operative and hostile behaviour (Mr Tisdale having denied being unco-operative or hostile at any time), the evidence contradicts any assertion that this behaviour was "momentary".

70 The highest that one can put the appellant's case (in terms of Praglowski) is the assertion that there was agreement by the Inspector as to the appropriateness of the course which was in fact imposed upon him by Mr Tisdale - a tour of the factory floor with employees chosen by Mr Tisdale - or that the Inspector "acquiesced" in Mr Tisdale's refusal to allow him to speak to the identified employee. In our view, for the reasons already discussed, the evidence does not support either proposition.

71 Furthermore, we consider that the second proposition, which extends the ratio of Praglowski considerably, is wrong in law. In the context of an inspector performing official duties in potentially difficult circumstances, an explicit agreement between parties is markedly different to implying agreement on the basis of acquiescence or any failure to insist. Given the important public policy considerations underlying the occupational health and safety legislation and the vital role of inspectors in the enforcement of such legislation, we agree with Ms Lowson's submissions that inspectors should not be required to insist upon requests which have already been refused at the risk of escalating aggravated situations and precluding an inspection of limited benefit to take place. Any finding of that nature would be inconsistent with the policy of the Act and would detract from the clear terms of the legislation granting broad powers to inspectors to investigate and placing broad obligations (with criminal sanctions) on persons to assist inspectors in their investigations.

72 In conclusion, we consider that Magistrate Maughan was correct in finding, on the evidence and in law, that Mr Tisdale obstructed the Inspector by preventing him from speaking to an employee (in an "unco-operative and to a degree hostile" manner); that Mr Tisdale and the Inspector were not "ad idem" and that the obstruction was not a "momentary expression of view resiled from shortly thereafter". We reject the appellant's submissions that the conviction should be overturned.

The Section 31N(a) Sentence

73 Having found that there was no error in Mr Tisdale's conviction for the s 31N(a) offence, we turn to consider the sentence imposed by Magistrate Maughan for that offence.

74 Mr Tisdale was fined $1,000 in relation to the s 31N(a) conviction and Magistrate Maughan rejected Mr Tisdale's application for the charge to be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 on the basis that, notwithstanding Mr Tisdale's lack of prior convictions, there were no unusual circumstances to warrant the application of s 10. The Application for Leave to Appeal and Appeal challenges both the exercise of his Worship's discretion in relation to s10 of the Crimes (Sentencing Procedure) Act 1999 and the severity of the sentence.

75 The Act prescribes a maximum of $11,000 for the offence given Mr Tisdale's lack of prior convictions. No submissions were made (whether oral or written) in support of the allegation that the sentence imposing a fine of $1,000 was too severe and Mr Moore, correctly in our view, resiled from it on the last day of the hearing.

76 Mr Moore relied upon Searle v Baptist Community Services - NSW & ACT [2003] NSWIRComm at [33] (discussed in Inspector McColl v Combined Crane Rigging & Didovich [2004] NSWIRComm 48 at [41]-[50]) in support of his written submissions that Magistrate Maughan erred in the exercise of discretion in declining to discharge the charge. At the hearing of the appeal, Mr Moore submitted that, given the "trivial" nature of the offence (resting as it did, in his submission, on the sole act of Mr Tisdale stating that a particular employee was "inappropriate" for Inspector Sequeira to speak to) and the low objective seriousness of the offence, it was inappropriate for the conviction to have been recorded.

77 We reject the appellant's description of the offence as "trivial". As Ms Lowson submitted, these provisions are designed to give WorkCover inspectors the necessary powers to enforce occupational health and safety legislation, including the prevention of workplace accidents. The Full Bench has made a number of recent comments on the important social purposes of this legislation, which, although made in the context of sentencing, are pertinent to this case (see Inspector Bestre v T & Y Pty Ltd [2005] NSWIRComm 392 at [7]; Beacham v Interface Manufacturing Pty Ltd and Another [2005] NSWIRComm 123 at [27]; and Glass v Flexible Packaging (Australia) Pty Limited [2005] NSWIRComm 93 at [2]). Nor do we accept Mr Moore's submission that the objective seriousness was low. As Ms Lowson submitted, given the important social policy behind these provisions, significant weight must be given to matters of general and specific deterrence. There was no evidence of contrition, nor any evidence to warrant the conclusion that the offence was unlikely to occur again.

78 We further agree with Ms Lowson that neither Searle v Baptist Community Services - NSW & ACT nor Inspector McColl v Combined Crane Rigging & Didovich assist Mr Tisdale's case. In the former case, the extenuating circumstances which persuaded the President to dismiss the charge without proceeding to conviction included the fact that the defendant had, for laudable reasons, entered into a program to provide support services for young people with behavioural and social difficulties at the request of governmental authorities because of the contraction of the government's direct role and it found itself uncharacteristically unprepared or "out of its depth".

79 In the latter case the second defendant sought to rely on the following matters as extenuating circumstances: his long experience on difficult projects in the construction industry without conviction for an offence; his good character; his age; the unlikelihood of the offence occurring again; and his difficult financial position. Boland J found that, although those matters were relevant in mitigation of the sentence they were not sufficient to justify a decision to dismiss the charge without proceeding to conviction. His Honour then quoted the Full Bench decision in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 at [26]:

"in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional."

80 Both cases serve only to highlight the absence of exceptional circumstances in this case. The appellant has not pointed to any evidence to suggest that Magistrate Maughan erred in exercising his discretion in the manner described in House v The King (1936) 55 CLR 499 at 505. Nor has he advanced any case based upon extenuating circumstances in which the offence was committed or his character, age, health or mental condition - matters we are obliged to have regard to pursuant to s 10(3) of the Crimes (Sentencing Procedure) Act 1999, in addition to antecedents and whether the offence was trivial, which we have already discussed. We too would have rejected Mr Tisdale's application for the charge to be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

Orders

81 We make the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

3. The stay is dissolved.

82 Both parties sought leave to file further submissions on costs following delivery of this judgment. We therefore require the appellant to file and serve written submissions within 14 days of this judgment. The respondent shall respond in writing within 14 days of receiving the appellant's written submissions. We shall then consider whether we will decide the matter on the papers or further hear the parties as to costs, particularly if the parties seek to adduce evidence on that issue.

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LAST UPDATED: 30/03/2006