Inspector Seneviratne v Qantas Airways Ltd [2006] NSWIRComm 69 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Seneviratne v Qantas Airways Ltd [2006] NSWIRComm 69

FILE NUMBER(S): IRC 4757

HEARING DATE(S): 23/02/2006

DECISION DATE: 22/03/2006

PARTIES:

PROSECUTOR

Inspector Mahinda Seneviratne

DEFENDANT

Qantas Airways Limited

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr P M Kite, SC with Mr D O'Neil of counsel

Solicitor: Mr G Phillips

Carroll & O'Dea

DEFENDANT

Mr H Dixon SC with Mr I Taylor of counsel

Solicitor: Ms J Patterson

Minter Ellison

CASES CITED: Cameron v The Queen (2002) 209 CLR 339

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29

Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8

Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481

Fisher v Samaras Industries Pty Limited (1996) 82 IR 384

Inspector Gill v Qantas Airways Limited [2005] NSWIRComm 326

Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2004) 138 IR 21

Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192

Inspector Stewart v Siemans Dematic Pty Limited (No. 2) (2003) 121 IR 283

Johnson v Miller (1937) 59 CLR 467

Lowe v The Queen (1984) 154 CLR 606

Markarian v R (2005) 215 ALR 213

Postiglione v The Queen (1997) 189 CLR 295

Warman International Limited v WorkCover Authority (1998) 80 IR 326

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Dangerous Goods (General) Regulations 1999 (R)

Occupational Health and Safety Act 2000

JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Boland J

Monday 27 March 2006

Matter No IRC 4757 of 2004

INSPECTOR SENEVIRATNE v QANTAS AIRWAYS LTD

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 69

1 At Sydney International Airport, Mascot there was situated a refuelling facility known as the “GSE Fuel Farm Facility”. Qantas Airways Limited ("Qantas" or "the defendant") leased the site, which was used for refuelling its mobile ground plant as well as for the storage and use of jet fuel, lead replacement petrol (LRP) and diesel fuel. The fuel was stored in underground tanks.

2 The defendant was in control of the site and used the site as a place of work. The defendant was an employer in the State of New South Wales and employed people to work at the site.

3 On or about May 2002 the defendant made a decision to decommission the site. Consequently, it was necessary to remove the fuel stored in the underground tanks and to transfer such fuel to be stored elsewhere. Qantas removed the jet fuel using its own personnel and a contractor. Qantas had expertise in the bulk handling of jet fuel but not LRP or diesel. Qantas decided that the LRP and diesel fuel should be returned to the supplier of that fuel, Caltex. As at August 2002 the storage tanks at the site included two tanks that together contained about 110,000 litres of LRP, and a further tank containing about 40,000 litres of diesel.

4 Qantas decided to engage an outside expert contractor with expertise and experience in the removal of petrol and diesel from underground tanks to transfer the fuel to a depot in Banksmeadow. On or about 2 August 2002, Qantas contracted with Caltex Petroleum Distributors Pty Ltd, trading as Metropolitan Fuel Distributors (“MFD”) to remove the fuel. MFD in turn contracted with Kel Campbell Pty Limited (“Kel”) for the provision of tankers and drivers required for the removal of the fuel.

5 During the course of transferring diesel fuel from an underground tank to number four compartment of a road tanker vehicle on 11 August 2002, at about 11.28 am an explosion occurred and a flame came out of the compartment of the tanker barrel causing burn injuries to Lindsay Barry, an employee of MFD, who was on top of the tanker barrel checking the progress of the pumping.

6 Mr Barry was taken to hospital and later the Concord Hospital Burns Unit and treated for burns to his face and chest. Barry was off work for a number of weeks as a result of his injury.

7 In relation to the incident that occurred on 11 August 2002, the defendant was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 by Inspector Mahinda Seneviratne of the WorkCover Authority of New South Wales. Section 8(2) provides:

(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

8 The charge was framed in the language of the statute. The particulars of the charge were that:

The Defendant, being an employer, on the said date at the said site, contrary to s 8(2) of the 2000 Act, DID FAIL to ensure that people other than employees of the defendant, in particular Lindsay Barry were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. In particular, the Defendant failed to ensure the provision and maintenance of a safe system of work in relation to the transfer of fuel from underground tanks into road tank trucks at the site such that non-employees were not exposed to the risk of fuel explosion during the transfer process, in particular by failing to ensure that:

(i) the transfer of fuel was done by bottom loading.

(ii) the road tank trucks were properly purged of fuel prior to the transfer of fuel taking place.

(iii) the transfer of fuel complied with the Dangerous Goods (General) Regulations 1999 (NSW) in particular, clauses 196 and 136.

9 The defendant entered a plea of not guilty on 7 February 2005. The matter was later set down for trial for three weeks commencing 6 February 2006. Early in the proceedings the Court was advised that the defendant had raised a number of issues with the prosecutor regarding the provision of further and better particulars and, indeed, the question of particulars had been the subject of lengthy dialogue between the parties leading up to the trial. On the third day of the trial Mr H Dixon SC with Mr I Taylor of counsel for Qantas advised the Court that the charge remained inconsistent, vague and ambiguous and as a result was oppressive to a fair hearing. It was also submitted the particulars supplied gave rise to a new charge under the guise of providing new particulars of the charge. Mr P Kite SC with Mr D O'Neil for the prosecutor contended otherwise.

10 It is unnecessary to explore the submissions of the parties on this interlocutory issue because, in the result, the Court ruled that the further particulars provided by the prosecutor did not amount to a new charge. The parties considered their position in the light of the ruling and on 13 February 2006, after the prosecutor was granted leave to amend its application for order, the defendant pleaded guilty to the amended charge. The amendment was to the particulars of the charge, which were in the following amended terms:

The Defendant, being an employer, on the said date at the said site, contrary to s 8(2) of the 2000 Act, DID FAIL to ensure that people other than employees of the defendant, in particular Lindsay Barry were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. The Defendant failed to ensure the provision and maintenance of a safe system of work in relation to the transfer of fuel from underground tanks into road tank trucks at the site such that Lindsay Barry was not exposed to the risk of fuel explosion during the transfer process in that it failed to require of Caltex Petroleum Distributors Pty Ltd trading as Metropolitan Fuel Distributors (MFD) that it supply in writing, prior to the commencement, the appropriate procedures for such transfer of fuel, which included a requirement that MFD:

(i) nominate a suitably trained supervisor to supervise the procedure; and

(ii) set out a method of work, which in the view of MFD, eliminated risks as far as possible, which in the circumstances required the process to be by bottom loading only.

11 On 23 February 2006, the Court heard submissions as to sentence. An agreed statement of facts was tendered. In addition to the factual matters that have already been referred to, the statement contained the following information relevant to sentence:

(1) Adam Machon, employed by Qantas at the time as a Senior Fuel Technical Officer, contacted MFD and sought from MFD certain assurances. MFD told Qantas that it had expertise in transfer of fuel operations of the type to be conducted and that it was a task carried out by MFD many times. MFD did in fact have that expertise. MFD subsequently wrote, representing to Qantas that it had the necessary expertise and experience to undertake the work.

(2) A standing contract existed between MFD and Kel dated 2 January 2002 which provided that MFD could at any time issue a delivery advice to Kel for the collection and delivery of fuel product. As part of that contract, Kel agreed to ensure that deliveries were carried out in accordance with Australian Standard 1940 “Storage and Handling of Flammable and Combustible Liquids” and the “Ampol Driver Instruction Manual”, as well as the AIP-CP8-1991 “Precautions Against Electrostatic Ignition During Tank Vehicle Loading”, the Australian code for the transport of dangerous goods by road and rail (ADG Code) and the AIP-CP14-1995 “The Transport of Petroleum Products by Road”.

(3) On or about 31 May 2002, Greg Clay, an employee of MFD, attended the site for a visual assessment of access for vehicles and equipment required to do the job.

(4) On 2 August 2002, Mr Machon sent a fax to Mr Clay accepting the quote and confirming the transfer date of 11 August 2002 and nominated John Calfas, an employee of Qantas, as the Qantas representative who would be at the site while the transfer process occurred. He did so in reliance upon the representations and assurances referred to in subparagraph (1).

(5) Between 2 August and 11 August 2002, Mr Machon had four telephone conversations with Mr Clay regarding site access, timing of work and an overview of Qantas requirements for the fuel transfer. At all material times, Qantas did not have a written procedure for bulk removal of LRP or diesel fuel from underground tanks at the site.

(6) Qantas did not require MFD to provide to it in writing, prior to the commencement, the appropriate procedures for such transfer of fuel, which included a requirement that MFD:

(a) Nominate a suitably trained supervisor to supervise the procedure; and

(b) Set out the method of work, which in the view of MFD, eliminated the risks as far as possible, which in the circumstances required the process to be by bottom loading only.

(7) On 5 August 2002, Steve Fox, an Operations Manager employed by MFD, faxed a copy of Mr Machon’s fax dated 2 August 2002 to Bevan Burns. Mr Burns, employed by Kel, made verbal arrangements with Mr Clay in accordance with the Contract to provide tanker vehicles for the fuel transfer. Mr Burns stated that two tanker vehicles would be provided.

(8) Mr Burns had, as at August 2002, an AIP passport, having undertaken the relevant training. Mr Burns was a Manager of Kel and held responsibility for the proper performance of the Contract. Mr Burns’ responsibilities with Kel included responsibility for the occupational health and safety of employees undertaking duties under the Contract.

(9) Mr Fox instructed the MFD and Kel staff who were to conduct the fuel removal to use a rigid MFD pumper truck to fill Kel tankers by bottom-loading.

(10) On 11 August 2002, the following people were present at the site being:

(a) Mr Calfas, employee of Qantas, who was the Duty Operator of the site and had the role of escorting and liaising with the employees of Kel and MFD;

(b) Mr Clay;

(c) Mr Burns, employee of Kel, who was a fuel tanker driver;

(d) Sean Riordan, employee of Kel, who was a fuel tanker driver;

(e) Sean Gosper, employee of MFD, who was a fitter and whose role was to earth and bond the vehicles;

(f) The injured person, Mr Barry.

There was no nominated supervisor.

(11) Messrs Clay, Burns, Riordan and Barry had expertise and were trained in the proper methods to undertake such transfer of LRP and diesel fuel operations in a safe manner.

(12) On 11 August 2002, between 5.00 am and 6.00 am, Mr Barry arrived at the site and met Mr Gosper and Mr Clay. At approximately 5.30 am, Mr Riordan arrived, driving tanker vehicle TVK-400, with tanker barrel N16327 attached to it, and was later joined by Mr Burns.

(13) Messrs Barry, Clay, Gosper, Burns and Riordan met Mr Calfas outside Gate 27 of the airport at around 6.00 am.

(14) At around 7.00 am, Mr Barry and his colleagues began transferring LRP from the first underground tank at the site to tanker vehicle VBB-276. Mr Gosper installed the connections from the underground tank opening to the tanker, bottom filling the tanker by pumping through the MFD rigid truck, SDE-823. Discussion between Messrs Burns, Clay and Barry took place regarding the slow flow rate of the fuel pumping into the tanker. The second tanker, TVK-400, was positioned for pumping LRP into the first tanker. Following further discussions, it was decided by the MFD and Kel Campbell employees to bring two other tanker vehicles to the site in order to assist with the expedition of the fuel transfer process.

(15) Messrs Gosper, Burns and Riordan returned to the site at around 8.30 am with two road tanker vehicles. At around 9.00 am, the loading of petrol on the first tanker was completed and a new tanker was moved into its place to continue the transfer of petrol. Once the first underground petrol tank was empty, Mr Gosper reconnected the new tanker to the second underground petrol tank and continued loading petrol. The transfer of fuel into these tankers was by way of bottom filling.

(16) At this time a decision was made to pump diesel from the underground diesel tank into another tanker being tanker TVK-400, using the MFD rigid for pumping but to fill the tanker from the top and not the bottom. This decision was made as the pumping process was perceived to be too slow. This decision was a departure from the training and instructions and proper procedure known to the MFD and Kel staff. Qantas was not involved in that decision, and Mr Calfas was not told such a decision had been made and was not aware of its implementation.

(17) The MFD rigid was moved to the site alongside the tanker TVK-400. Another tanker being loaded with petrol at the time was approximately ten metres away from tanker TVK-400. Mr Gosper made the connections for diesel loading by spearing the underground diesel tank and connecting it to the pump on the MFD rigid.

(18) At around 11.00 am, Mr Barry then began top loading fuel from the underground tank containing diesel fuel to the tanker barrel attached to tanker TVK-400. He used the long hose on the reel of the MFD rigid to transfer diesel through an open hatch on top of compartment five in the barrel.

(19) Mr Barry climbed the tanker barrel while holding a hose, inserted the hose into an open hatch of number five compartment and began filling it with diesel. Mr Barry completed filling number five compartment with diesel. He then inserted the hose reel into an open hatch of number four compartment with a hose. Number four compartment had contained petrol on the previous load.

(20) At approximately 11.28 am, while Mr Barry was on top of the tanker barrel checking the progress of the pumping in number four compartment, an explosion occurred and a flame came out of number four compartment of the tanker barrel causing burn injuries to Mr Barry.

(21) At the time of the accident, MFD had a document entitled “Caltex Australia – Driver’s Handbook”. The Handbook contained directions regarding mixed loads and switch loading i.e., loading a high flashpoint product such as kerosene or distillate into a compartment that previously carried a low flashpoint product such as petrol. The Handbook stated:

[I]t is important to ensure the low flashpoint product is completely drained from the compartment to be re-loaded

It does not take a great deal of petrol residue in that compartment to contaminate the high flashpoint product carried next.

...

When switch loading, initial flow rates must be kept to a maximum of 1 metre per second, until the fill spear outlet or tank inlet is fully submerged. Excessive initial flow rates can cause turbulence in the incoming liquid and generate large charges of static electricity. These charges could be released as a spark with sufficient energy to ignite the vapour/air mixture inside the compartment if an object was introduced into the tank compartment or a fill spear was removed prior to the charges having enough time to dissipate.

Always wait TWO minutes before you dip the compartment or introduce any other object into the compartment that you have just finished loading. If in doubt about switch loading procedure or compartment draining, consult your Supervisor prior to loading.

...

You must also make sure any residue from the previous load is completely removed so the compartment to be loaded is completely drain dry.

The Handbook also referred to splash loading in the following terms:

SPLASH LOADING: Never splash load a vehicle through incorrectly positioning the vehicle at the loading rack. Reposition the vehicle before you start to load if the fuel spear is too far from the compartment entrance to afford vertical entry. Splash loading is a dangerous practice and could cause a loading rack fire. When loading by spear, make sure the bottom of the spear reaches and maintains metal contact with the bottom of the compartment being loaded and is also in contact with the rim of the tank hatch. If pre-set meters are not fitted on the loading arms, under no circumstances must you attempt to load with more than one arm at a time.

Under the heading "Discharging" the Handbook stated:

CUSTOMER ACCESS TO TOP OF TANKER: Accessing the top of tankers to verify compartment dips is a hazardous practice and should not be necessary in most circumstances.

In addition, the Handbook detailed the risks of static electricity.

(22) The circumstances applicable to this fuel transfer, in the view of MFD, required the process to be by bottom loading only.

(23) The circumstances for this fuel transfer were:

(i) There was diesel being loaded into a tanker compartment which previously contained petrol;

(ii) There was petrol vapour remaining within the compartment;

(iii) This situation constituted “switch loading".

(24) After the incident Sydney Airports Corporation Ltd (SACL), MFD, Kel and Qantas discussed the system to be used regarding the process to be undertaken for the removal of the remaining fuel in the underground tanks at the site. Meetings between SACL, Qantas, and MFD determined that the process to pump out the remaining fuel at the site would be undertaken on 11 and 12 December 2002. MFD was requested to prepare a written procedure detailing the process to be undertaken. Qantas and SACL required inductions for all contractors, the induction to be lead by Qantas at the offices of SACL starting at 10.00am on the day of the job. SACL required a Works Plan Application to be submitted to them by 27 November 2002 for their approval from Qantas.

(25) The procedure for product removal from underground tanks was prepared by MFD and reviewed by Qantas and provided to SACL for their review.

(26) On or about 9 December 2002 a completed “Approved Air Side Works Plan” issued by SACL set out the conditions for the removal of fuel from the site on Wednesday 11 December 2002.

(27) On 11 December 2002, the transfer of fuel process was undertaken by employees of MFD being Stephen Fox, Greg Clay, and Sean Gosper. John Turnbull, an employee of Kel attended as well as another Kel employee, Mr G Markham. In addition, representatives from Qantas were present during the process, being Hans Schurch and John Calfas. Representatives from SACL also attended the process, being Owen Jarvis and Mark Farrar (SACL Aviation Safety and OHS Manager). Mr Fox, the Operations Manger of MFD, supervised the process.

(28) On the occasion of removal of the remaining fuel, the process was done by bottom loading (by the discharge hose of the pump being connected to the bottom valve of the compartment on the road tanker to be filled), and no filling took place from the top of the tanker.

(29) After the incident, the prosecutor obtained expert evidence to the effect that it was likely there was petrol vapour in compartment 4 which, when mixed with air, was ignited by a spark caused by a build up of static electricity.

12 The principal evidence relied upon by the defendant on sentencing was an affidavit of Mr Machon who, at the time of swearing his affidavit, was the defendant's Manager Fuel Quality and Support. Mr Machon gave evidence about his personal background, which included the qualifications of Bachelor of Chemical Engineering from University of Sydney and Bachelor of Commerce/Finance from the same University. Mr Machon was in the position of Fuel Technical Officer in August 2002. In that position he was responsible for ensuring that fuel operational requirements were met, including:

(a) continuity of supply;

(b) standard of fuel quality;

(c) on-time performance and demand management; and

(d) the effective management of fuel related interruptions.

13 Further, Mr Machon was primarily responsible for selecting which contractor Qantas would engage to remove the fuel at the site and to transport it to the Banksmeadow Storage Facility. Any contractor that was selected had to be approved by the then Manager of Fuel Quality & Support, Paul Taylor.

14 Mr Machon described his conversations with Mr Clay and the fact he made various enquiries in order to determine whether MFD had the necessary expertise and experience to perform the work and perform it safely. Prior to 11 August 2002, Mr Machon had four conversations with Mr Clay during the first of which he outlined to Mr Clay what Qantas needed to do and arranged for Mr Clay to attend the Site on 31 May 2002 for a Site visit to discuss the matter further with a view to obtaining a quote from MFD for undertaking the job. Mr Machon deposed that during the Site visit with Mr Clay, they discussed a number of general issues about the proposed works, including:

(a) familiarising Mr Clay with the general physical environment in which the work would need to be performed - in doing so, I pointed out things to Mr Clay such as the appropriate access roads for equipment and vehicles around the Site, tarmac proximity and warned Mr Clay about the level of aircraft noise etc;

(b) the nature of the work to be performed - by reference to the location of the underground tanks which contained the fuel on the Site I explained that the fuel needed to be removed and transported to the Caltex Banksmeadow Storage Facility;

(c) I referred to general Qantas safe work practices - including the need for the use of personal protective equipment such as safety boots, high visibility vests, ear plugs etc;

(d) general timing issues - in relation to which I advised Mr Clay that Qantas could arrange for access and a Site escort for MFD at any time suitable to MFD, even during the evening if necessary and preferable to MFD. I gave an example of a job where Qantas had arranged access to a contractor between the hours of 2300 to 0500 for works associated with accessing an underground fuel supply hydrant at the SIT;

(e) I questioned Clay as to the suitability expertise and experience of MFD to do the work required safely. Clay assured me that MFD were capable of doing the job safely. He said he was experienced in bulk handling of such fuel;

(f) Mr Clay told me he would be present during the operation, supervising the work on the day and managing the process; and

(g) Mr Clay told me the approximate hourly rate that he would be using to calculate the quote that MFD would provide.

15 Mr Machon stated:

In response to my general enquiries about how MFD proposed to carry out the job, Mr Clay verbally ran through how he considered MFD would undertake the works while we were on the Site together. In doing so, Mr Clay:

(a) explained that MFD would require a pumper truck to be placed in a certain position on the Site and another truck into which the fuel would be pumped, to be placed in another position on the Site, together with the erection of various barricades and safe access points;

(b) talked through out loud the general method that MFD was proposing to use in carrying out the work, including coupling requirements and effective bonding points. In relation to the bonding points, I recall that Mr Clay indicated that there appeared to be no designated bonding points located on the Site, however, Mr Clay determined that the existing pump structures located on the Site for the supply of fuel to smaller equipment from the facility could be nevertheless used as a suitable bonding point.

...

Following the Site visit and in response to my request that MFD provide Qantas with a quote for the job, Mr Clay provided me with a facsimile dated 14 June 2002 confirming the terms of the quotation. A copy of the facsimile dated 14 June 2002 is attached ... The written quote contained assurances regarding the work to be done consistent with those Clay had given to me verbally before that date. I assessed MFD's quotation on the basis of what Clay had told me during the Site visit. Applying the approximate hourly rate that Mr Clay gave me, I worked out that the quote appeared to be calculated on the assumption that the work would take approximately two days to complete. I considered that a suitably generous amount of time.

After my various discussions with Mr Clay, including our discussions during the Site visit on 31 May 2002, and the receipt of the quote dated 14 June 2002, I made the assessment that MFD was the appropriate contractor for Qantas to engage to perform the work, on the basis that MFD was suitably qualified and had suitably experienced personnel to carry out the works. The key factors in my assessment included:

(a) MFD's familiarity with the fuel to be transferred. In this regard, I was aware that MFD had loaded the fuel into the underground tanks in the first place as Caltex's contractor;

(b) MFD's previous and frequent experience in transporting Caltex fuel generally and therefore their familiarity with the loading and unloading requirements of the Caltex Banksmeadow Storage Facility;

(c) the suitably trained personnel that MFD employed to perform the work based on MFD assurances - specifically, in Mr Clay's letter dated 14 June 2002, Mr Clay represented to me that MFD would provide Dangerous Goods licensed tankers and drivers and Dangerous Goods approved personnel to operate equipment and facilitate safe transfer procedures;

(d) Mr Clay’s representation to me that this would be a routine job for MFD to perform;

(e) my dealings with Mr Clay, in particular the way he conducted himself when he was present at the Site, led me to believe he was experienced, that he knew what he was talking about, and that he appeared to be thinking ahead about how the job would be done, leading me to have confidence that the job, that he was to supervise, would be done properly and safely; and

(f) given the matters and assurances that we had discussed during the Site visit on 31 May 2002 and the assurances I received from MFD that appropriate and safe procedures were in place for the performance of the work, contained in Mr Clay's letter to me dated 14 June 2002 by its reference to 'safe transfer procedures', my understanding that MFD had, and would be using, appropriate and safe procedures to do the work.

The final approval to engage MFD was given by Paul Taylor, a contractor who was performing the role Manager Fuel Quality and Support at the time. Mr Taylor gave this approval verbally to me after I had explained the circumstances surrounding the proposed engagement of MFD to perform the works and my assessment of their suitability based on the factors outlined in the preceding paragraph.

16 Mr Machon described the role of Qantas on the day of the incident in the following terms:

On 11 August 2002, John Calfas, a Duty Officer employed by Qantas who reports to me, was present at the Site while MFD commenced the removal of fuel from the underground tanks at the Site. Prior to that day I had discussed with Mr Calfas the role that he was to perform on that day on two occasions – once during a meeting and again during a telephone conversation with Mr Calfas on 10 August 2002.

I told Mr Calfas that he was assigned by me to undertake an escorting role with the following tasks:

(a) to meet the MFD employees at the gate to the SIT;

(b) to take the MFD employees to the SACL offices to obtain their access passes;

(c) provide MFD employees with directions as to where various facilities were located (for example, the location of toilets etc).

Prior to the day of the Incident, I explained to Mr Clay that Mr Calfas would meet him and the other MFD employees at the gate to the SIT and would escort them onto the Site so that they could perform the job required.

As at August 2002, Mr Calfas had experience and training as an escort at the Airport. He was trained in general procedures and protocols to be followed in the event of an emergency or incident at the Airport. However, I did not consider that Mr Calfas had training or experience to allow him to supervise the actual works that MFD were to undertake on the Site, namely the transfer of diesel and lead replacement petrol.

17 Mr Machon described in his affidavit the steps taken prior to removal of the fuel on 11 December 2002, the defendant's occupational health and safety policy, the training conducted by Qantas of workers in occupational health and safety, the operation of the defendant's occupational health and safety committee, the defendant's occupational health and safety management system (known as 'S.A.F.E.' or 'Safe Airline for Everyone'), the defendant's rehabilitation policy, its first aid system and the defendant's occupational health and safety expenditure. Mr Machon also referred to a number of matters indicating the defendant's standing as a good corporate citizen.

18 As to contrition, Mr Machon stated:

I am authorised by Qantas to say, on its behalf, that Qantas was very concerned about the Incident involving Lindsay Barry on 11 August 2002 and strongly regrets any failure on its part that contributed to the risk of the Incident occurring. Qantas appreciates that despite the efforts to ensure that the job was done safely by an expert contractor, the events as they occurred demonstrated that more could have been done in respect of what Qantas required of the contractor to further minimise the risks associated with the task. Qantas regrets that that did not occur prior to August 2002.

Qantas was concerned for the well-being of Barry after the Incident. Qantas made regular contact with MFD to enquire as to the recovery and state of health of Mr Barry after the Incident and was very pleased to see that Mr Barry had recovered to return to work and participate in the briefing meeting in the lead up to MFD completing the removal of the remaining lead replacement and diesel fuel from the Site in December 2002.

Consideration

19 The amended charge to which the defendant pleaded guilty was that the defendant failed to ensure the provision and maintenance of a safe system of work in relation to the transfer of fuel from underground tanks into road tank trucks at the site such that Lindsay Barry was not exposed to the risk of fuel explosion during the transfer process in that:

[I]t failed to require of Caltex Petroleum Distributors Pty Ltd trading as Metropolitan Fuel Distributors (MFD) that it supply in writing, prior to the commencement, the appropriate procedures for such transfer of fuel, which included a requirement that MFD:

(i) nominate a suitably trained supervisor to supervise the procedure; and

(ii) set out a method of work, which in the view of MFD, eliminated risks as far as possible, which in the circumstances required the process to be by bottom loading only.

20 The defendant submitted that this was a significantly lesser charge than that originally laid against it and that the amended charge should attract a penalty at the lowest end of the scale because, in effect, the defendant's only failure was a failure to require of MFD that it supply in writing, prior to the commencement of the fuel transfer operation, the appropriate procedures for such transfer of fuel.

21 The defendant's failure was a failure to provide and maintain a safe system of work for the transfer of fuel. It was this failure that constituted the contravention of s 8(2). The means by which it was claimed the defendant failed to provide and maintain the safe system of work was particularised as a failure to provide in writing the appropriate procedures for the transfer of fuel.

22 Not every particular of a criminal charge has to be made out; what the prosecutor needs to establish in order to obtain a conviction are the essential facts alleged in the summons: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481. I do not understand this case, however, to be authority for the proposition that if a particular in a summons alleged how it was that a contravention occurred and it is the only particular, that if the prosecution fails to establish that one particular the prosecution can, nevertheless, succeed in obtaining a conviction on some other basis not pleaded. Of course, as it was held in EPA v Sydney Water there is nothing unusual about a situation in which, in criminal proceedings, the prosecution case is strengthened by material which emerges in the defence case. But if it is alleged that there has been a contravention and that contravention occurred in a particular manner, the prosecutor is not at liberty to introduce a different allegation as to how the contravention occurred in the course of the proceedings.

23 An accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" (Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489). Correct particularisation is essential, amongst other reasons, so that any plea of guilty is rendered unequivocal, relates to the identified charge and thus provides the true foundation for subsequent sentencing: Cameron v The Queen (2002) 209 CLR 339 per Kirby J at 364.

24 In the present sentencing proceedings, the original particularised failures were, inter alia, a failure to ensure that the transfer of fuel was done by bottom loading and that the road tank trucks were not properly purged of fuel prior to the transfer of fuel taking place. In relation to the charge as particularised, the defendant pleaded not guilty. Immediately the charge was amended the defendant pleaded guilty, obviously relying on the amended particulars that it perceived to constitute a lesser charge, presumably in the sense that the amended charge would attract a lower penalty.

25 In my opinion, the amended charge in respect of which the defendant pleaded guilty reflects a relatively less serious charge than the original. In light of the amended charge the prosecutor is now not able to rely on any failure by the defendant to ensure that the transfer of fuel was done by bottom loading and that the road tank trucks were not properly purged of fuel prior to the transfer of fuel taking place in order to make out its case on penalty. The prosecutor obviously took a deliberate decision to amend the charge withdrawing the allegations relating to bottom loading and purging and in response to that amended charge the defendant pleaded guilty. The prosecution cannot now contend, in effect, that nothing changed and that the Court, in determining penalty, can continue to rely on a failure by this defendant to ensure that the transfer of fuel was done by bottom loading (except to the extent referred to in the amended charge) and that the tanks were not properly purged.

26 The prosecutor submitted the risk was a risk of explosion/fire during the fuel transfer process and that there was a serious risk of injury. The prosecutor analysed the offending conduct as follows:

(a) The Defendant engaged specialist contractors for the fuel transfer.

(b) The Defendant sought and received representations from the specialist contractors as to their expertise in the fuel transfer.

(c) At no time did the Defendant require MFD to provide to it, in writing, details of the procedures MFD would follow or who would supervise the work.

(d) Once the Defendant received the assurance from MFD that it possessed the requisite expertise, Qantas took no further part in nor steps to ensure the task was undertaken safely.

(e) The workers involved in the fuel transfer exercise had expertise and were trained in the proper methods to undertake such transfer, however there was no nominated supervisor.

(f) The task was initially undertaken by bottom loading.

(g) The workers changed the methodology from bottom loading. The process thereafter included both bottom loading and top loading.

(h) The change to top loading was a departure from the training and instructions and proper procedures known to the workers and was facilitated by the absence of supervision.

27 It was submitted that in no way did the engagement of specialist contractors remove the obligation imposed upon an employer to ensure that persons not in its employment are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work: Inspector Stewart v Siemans Dematic Pty Limited (No. 2) (2003) 121 IR 283 at [42].

28 The defendant, on the other hand, submitted it went to great lengths to try and ensure that the work was carried out in a safe manner by persons with the requisite expertise. The factors referred to in this respect were:

(1) Qantas had no expertise in the transfer and transport of this fuel.

(2) Qantas engaged outside experts who had expertise in the transfer of this fuel.

(3) The expert contractor identified engaged staff with the relevant training and qualifications, including AIP training, and experience which would provide them with the knowledge necessary to conduct such a transfer operation safely.

(4) The contract between Qantas and MFD provided generous terms placing no incentive on MFD to rush the job or cut corners.

(5) The contractor engaged a sub-contractor (Kel Campbell) without the knowledge of Qantas. The sub-contract with Kel Campbell imposed on it express obligations to:

(a) ensure that work is carried out at a standard equal to, or above the standards set out in Annexure A to the contract which included all relevant safety precautions for the performance of the work on the day;

(b) ensure that the drivers assigned to do the relevant work are competent and properly qualified to carry out the tasks which they are asked to carry out;

(c) ensure that any equipment used to carry out the work was suitable for the purpose intended.

(6) The MFD staff who attended the site and who were to operate the pumping truck had been directed by Fox to use the vehicle to bottom load other trucks.

(7) Fox had ensured that Kel Campbell was fully briefed and explained the nature of the task to Burns, Kel Campbell’s manager.

(8) On the day Qantas escorted the workers to the site and provided such assistance as they requested.

(9) MFD and Kel Campbell staff followed the direction given by Fox and used the pumper truck and Kel Campbell truck to bottom-fill 5 compartments on 2 tankers – in other words, the process was adopted 10 times on the day before the system was altered by those engaged in the work on the day.

(10) Despite the fact that the quote was for two days and, accordingly, there was plenty of time, the MFD and Kel Campbell staff made an ad hoc decision on the day to speed up the pumping process by top filling another tanker (TVK-400) using a hose reel from the pumper truck. That decision which was then applied:

(a) was contrary to the direction that had been given to MFD staff by Fox;

(b) involved a method which was unsafe according to the instruction and training of all the staff involved and contrary to written procedures in their Hand-book and which, accordingly, they knew or should have known to be unsafe; and

(c) was a decision that was made and implemented without the knowledge of Qantas and in the absence of any Qantas representative.

(11) Qantas staff did not have the authority to direct as to the way in which the work was to be done safely - indeed it would have been unsafe for Qantas staff, without the relevant training and experience, to be in a position where they were supervising or instructing the operation.

(12) For the balance of the task to be performed in December 2002, Qantas again sought assurances from MFD of the kind sought and provided in the June 2002; Fox also testified that the assurances about procedures and standards set out in his letter of 26 November 2002 were equally true and applicable for the work in August 2002.

29 It was submitted what Qantas did ensure was that:

(1) It made an assessment of its own capacity or ability to carry out the task safely, and having done so, ensured that its staff did not carry out work which they did not have either the relevant experience, training or equipment to do in a safe manner.

(2) It engaged an expert contractor to undertake the task, and further Qantas ensured that the contractor:

(a) was indeed a company with appropriate expertise to do the work in a safe manner;

(b) would provide dangerous goods licensed drivers (and to be so licensed, detailed knowledge and training about the handling and transport of fuel is required);

(c) would provide dangerous goods approved personnel to operate the equipment and to facilitate a safe transfer;

(d) would provide the proper equipment including dangerous goods approved road tankers.

Consistent with the assurances sought by Qantas from MFD, MFD’s employees working on the undertaking had appropriate expertise, experience and training, and in respect of those staff:

(a) there were senior staff involved in the planning of the transfer;

(b) there were senior staff supervising and involved in the execution of the transfer;

(c) the staff that were involved in the execution of the transfer were suitably qualified and trained and had performed the task on a number of previous occasions.

(3) The contractor was given:

(a) access to the site;

(b) a full opportunity to become familiar with the site and the environment;

(c) every opportunity to understand and assess the work to be done;

(d) every opportunity to determine, applying the expert’s knowledge, experience and training, what would be best and safest procedure to undertake the work; and

(e) every opportunity to identify what would be potential hazards and to determine the best method of dealing with such hazards.

(4) The question of when would be the appropriate time to undertake the transfer process was a matter left at the discretion of the contractor to determine the most appropriate time.

(5) The amount of time that the contractor would need to complete the job was sufficient since:

(a) Qantas agreed to a generous quote which allowed substantial time to complete the job without needing it to be rushed in any way; and

(b) the evidence is that the quote was for two days work.

(6) The fuel was being returned to a terminal where it could be unloaded using the terminal equipment, which would be safer than unloading at other locations.

(7) The fuel was fuel that Caltex would receive back at its Banksmeadow terminal.

(8) The outside contractor selected to return the fuel was one which had expertise and familiarity with the terminal to which the fuel was being returned such that it could be done so in a safe manner. It is clear that:

(a) the contractor had the correct accreditation to use the Banksmeadow terminal;

(b) its personnel and those of its subcontractor were inducted at the Banksmeadow terminal;

(c) the relevant staff were familiar with the unloading facilities at that terminal and themselves were accredited to use that terminal.

(9) The staff would on the day be escorted to and from the site and provided (through Calfas) with such assistance as they might need in that regard and in the event of an incident in that:

(a) Qantas provided someone with training and experience in rendering assistance to outside contractors who come onto the site.

(b) The evidence is that Calfas had expertise and training in escorting contractors on to the airport and in the procedures and protocols for dealing with emergencies, which he in fact applied, by giving directions to shut off the fuel transfer process, directing the injured employee to the place where he could be doused with water, dousing him with water and rendering immediate assistance.

30 The defendant further submitted that it could not be said that the requirement to provide a written work method statement would have, or could have, eliminated the risk. So much was evident, it was submitted, from the fact that a verbal instruction to bottom-load did not prevent the risk. The requirement to provide a written work method statement may have reduced the risk of a departure from a safe system devised by the contractor, but that did not, without more, make the defendant's omission amount to a serious offence.

31 This case is a classic example of an employer relying on a specialist contractor to carry out work that the employer did not have the expertise to undertake. Whilst contracting out work is an everyday fact of life in New South Wales, an employer may not contract out the responsibility for occupational health and safety. Regardless of any contractual arrangement for carrying out work between an employer and a contractor, if persons not in the employer's employment are exposed to risks to their health and safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work, the employer remains liable to prosecution under s 8(2) of the Act. The employer must ensure the safety of that class of persons that comes within the scope of s 8(2).

32 It follows that in this case Qantas had a responsibility to ensure all of the persons not in its employment who were engaged in the fuel transfer process on 11 August 2002 were not exposed to the risk of a fuel explosion. This Qantas failed to do. For the purpose of sentencing, it then becomes a question of the seriousness of the defendant's failure having regard to the considerations that arise from s 21A of the Crimes (Sentencing Procedure) Act 1999 and those matters peculiar to the Court's criminal jurisdiction relating to occupational health and safety offences.

33 The defendant was correct in identifying all of those matters referred to above that the Court should take into account in considering the nature and quality of the offence. Nevertheless, the defendant failed to provide and maintain a safe system of work in that it failed to require of MFD that it supply in writing, prior to the commencement of the fuel transfer process, the appropriate procedures for such transfer of fuel, which included a requirement that MFD:

(i) nominate a suitably trained supervisor to supervise the procedure; and

(ii) set out a method of work, which in the view of MFD, eliminated risks as far as possible, which in the circumstances required the process to be by bottom loading only.

34 The defendant did satisfy itself that the contractor was a company with appropriate expertise to do the work in a safe manner but in failing to require MFD to provide in writing its procedures for the transfer of fuel Qantas left itself exposed to the extent that it was not able to properly satisfy itself the procedures laid down were, in fact, safe and that, importantly, when it came to implementing the procedures that they would, in fact, be followed.

35 The proposition that Qantas did not have the relevant expertise and any interference in the process may have presented a risk in itself, does not relieve the defendant of its obligation under s 8(2). It would have been open to Qantas, having obtained the procedures from MFD in writing, to seek independent advice as to the safety of the written procedure and to have the fuel transfer overseen or monitored by itself or an independent expert or a suitably trained supervisor nominated by MFD or, alternatively, it could have adopted the process that it ultimately did on 11 December 2002 when the remaining fuel was removed from the site at Mascot.

36 As the defendant submitted, this is not a case where it failed to take any steps to ensure safety but where it fell short of fulfilling its obligations was to rely too heavily on the expertise of others when it should have taken a more active role in relation to ensuring a safe system of work was employed by MFD by requiring MFD's procedures in writing before the fuel transfer was undertaken. The provision of the written procedures would have provided the defendant with a platform upon which it could properly assess the procedures and take any necessary measures to ensure safety.

37 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2000) 138 IR 21 at [87].

38 The defendant submitted as to foreseeability that it could not be said that it did, or should have, foreseen that there would be a departure from the safe working systems about which assurances were given. In this respect, Haylen J observed in Siemens Dematic at [45]:

The decisions of this Court dealing with breaches of the Act are liberally sprinkled with references to the provisions of the Act requiring employers to be proactive in ensuring the safety and health of workers and warning that those obligations require consideration of the fact that there will be careless, inattentive and even negligent persons who may disregard specified workplace safety measures. Additionally, it is not beyond human experience that acknowledged diligent workers may, from time to time, under pressure of work, adopt some shortcut or alternative method of work which raises a risk to safety. These possibilities are part of common experience and the act operates to require employers to adopt measures which will ensure the safety of employees even in circumstances arising from carelessness, inattention or workplace skylarking, tempered only by the defences specified in Section 53. In its approach, the Defendant submits that it could not foresee that a skilled specialist sub-contractor would not disclose the work it was to undertake at the coordination meeting as required and that it would otherwise permit the work to be performed by involving an unqualified person, inadequately supervised and clothes for the task. While these factors require waiting (sic) in determining the culpability of the Defendant, the appropriate question to pose is whether or not it was foreseeable that working live on one of the Defendant’s switchboards would pose a risk to health and safety. The answer to that question is obvious. It was obvious to the Defendant – it recognised the risk and took steps to address it but did not take the next and simple step of extending that protection to contractors and subcontractors working at its premises.

39 The risk here was the risk of a fire or explosion during the fuel transfer process. Such a risk was readily foreseeable by the defendant. Indeed, the risk was most likely a significant factor leading Qantas to engage a specialist contractor. Moreover, what has to be kept steadily in mind that the risk was a very serious one with, potentially, catastrophic results.

40 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27.

41 As the prosecutor submitted, the steps taken by the defendant after the accident were all capable of being taken prior to the incident. These steps included:

(1) Qantas (and SACL) required inductions for all contractors.

(2) Qantas led the inductions.

(3) Qantas reviewed the procedure prepared by MFD (and submitted the same to SACL for their review).

(4) Qantas had representatives present during the transfer of fuel on 11 December 2002 being Hans Schurch, John Calfas and Adam Machon.

42 In Capral Aluminium the Full Bench recognised that in the industrial context it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. The defendant acknowledged this but submitted that the present case did not call for any significant element in that regard given that Qantas was not in bulk petrol and diesel fuel transfer business. It was contended that it was more appropriate that those directly involved in the activities be deterred.

43 In Siemens Dematic, Haylen J observed at [48]:

In this case, general deterrence is a significant consideration having regard not only to the particular industry in which the defendant operates but also having regard to the widespread engagement of contractors and sub-contractors and the need to reinforce the obligations under the act of those who engage them.

I agree with his Honour's approach and I take the same approach in this case.

44 In Capral Aluminium the Full Bench took the view that it was unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. The defendant submitted, however, the that this was not a case that called for the imposition of some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant’s attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. It was submitted the incident arose from a one-off event; that bulk removal of LRP and diesel was not a usual part of the business of Qantas.

45 Additionally, it was submitted, Qantas had a very strong commitment to health and safety in the workplace; its policies, practices and track record reflect that fact. Further, that through the development and application of its policies, steps have been taken to prevent a recurrence of the failure to which it has pleaded guilty in the relevant area of its operations.

46 I accept the defendant's submissions regarding specific deterrence. The penalty will not contain a significant element for specific deterrence but I have had regard, in light of the defendant's prior convictions, for the need to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace”: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388.

47 The defendant has five prior convictions under the Act (and its predecessor) going back to 1992. Accordingly, the maximum penalty in this case is $825,000. Careful attention should be given to the maximum penalties because, as the majority observed in Markarian v R (2005) 215 ALR 213 at [31]:

[F]irst because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

48 The fact that the defendant has prior convictions is an aggravating factor that is to be taken into account pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. Also to be taken into account, as a mitigating factor, is that the offender is unlikely to re-offend: s 21A(3)(g). I do not regard this latest offence as indicating a propensity to continue to re-offend and thus that the defendant is deserving of condign punishment. The prior offences occurred in quite different circumstances to the latest breach and display no pattern of disregard by the defendant for its obligations under the Act. The defendant has a very commendable system in relation to occupational health and safety and has taken appropriate steps to ensure that the risk in this case does not recur. The defendant has also expressed contrition and I accept the defendant is a good corporate citizen. The defendant cooperated with the prosecutor in his investigation of the breach.

49 I have also taken into account that Qantas is a large employer and, as I observed in Inspector Gill v Qantas Airways Limited [2005] NSWIRComm 326 at [29], it operates in a dangerous industry.

50 Relevant to the timing of the defendant's guilty pleas was the defendant's submission that:

Even if, contrary to the defendant’s submissions, it could reasonably be said that the application for order, as filed in August 2004, encompassed (by some sifting through the Prosecutor’s affidavit and Statement of Facts) a failure to require MFD to supply, in writing, the appropriate procedures for the transfer of fuel, a plea to a contravention in that regard, would have left the defendant open to the forensic prejudice of having to defend the much more onerous alleged failures remaining in the application for order, allegations subsequently withdrawn by the Prosecutor on 13 February 2006.

51 I accept this submission and note that upon the Application for Order having been amended the defendant immediately pleaded guilty. The utilitarian value of the timing of that plea must be acknowledged and I do so by discounting the penalty by 17.5 per cent.

52 The question of what penalty should be applied to the defendant has to be considered in light of the penalty imposed on MFD by Kavanagh J in Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192. In that case MFD was prosecuted in relation to the same incident that gave rise to the charge against Qantas in these proceedings. MFD was charged with a breach of s 8(1) of the Act. Whilst MFD and Qantas have been found guilty of different offences, nevertheless the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment: Warman International Limited v WorkCover Authority (1998) 80 IR 326 at 341.

53 In the matter involving MFD before Kavanagh J, the defendant pleaded guilty and was provided with a discount of 25 per cent in that regard. MFD, a first offender, was fined the sum of $240,000. Her Honour found the offence to have been most serious. At [26] her Honour observed:

This court is however, considering penalty given the obligations carried by the defendant. The defendant played a major role under the contract to assist in the fuel transfer. It had two workmen on site and brought onto the site a number of its tankers. There was a complete failure by the defendant to risk assess the task and, to devise a suitable work method for the performance of the task. A risk assessment would have recognised the risk of top loading, the need for the purging of tanks, and the work methods would have ensured proper procedures, and compliance with the appropriate regulations for the removal of the fuel which task is identified in the Road and Rail Transport ( Dangerous Goods) Act 1997 (NSW).

54 The principles governing parity and consistency in sentencing do not require equal sentences where there exists differences between offenders that warrant a different approach. Where there are relevant differences between the defendants’ culpability or circumstances, due allowance should be made for them: Lowe v The Queen (1984) 154 CLR 606 at 610-611 per Mason J and at 617-618 per Brennan J; Postiglione v The Queen (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ; 309 per McHugh J, 325 per Gummow J, 338-340 per Kirby J.

55 In my assessment the culpability of MFD was considerably greater than that of Qantas. MFD held itself out to be a capable and competent contractor that had direct control of the operation. That was not the case with Qantas who whilst it failed to provide and maintain a safe system of work, was not in the position of directly supervising and controlling the fuel transfer operation.

56 On the question of costs the defendant contended the prosecutor should not have all of its costs. It was submitted:

(a) the Defendant pay the Prosecutor’s costs as agreed, or assessed as follows:

(i) up to 7 February 2005 (when the not guilty plea was entered)

(ii) from 8 February 2006 to 23 February 2006;

(b) the costs referred to in paragraph (a) (i) are to properly reflect an equal apportionment between the Defendant and MFD, SACL and Kel-Campbell; and

(c) the parties otherwise each pay their own costs.

57 I am not convinced that I should depart from the usual rule that costs should follow the event. The prosecutor shall have his costs and a moiety of the fine.

58 Having regard to all of the relevant factors and circumstances I have decided that an appropriate penalty in this case is $150,000.

Orders

59 The Court makes the following orders:

(1) The offence is proven and a verdict of guilty is entered.

(2) The defendant is convicted of the offence as charged.

(3) The defendant is fined an amount of $150,000 with a moiety thereof to the prosecutor.

(4) The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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LAST UPDATED: 28/04/2006