Listen
NSW Crest

Industrial Relations Commission
New South Wales

Medium Neutral Citation:
Inspector Brown v Raffo [2013] NSWIRComm 39
Hearing dates:
29/10/2012
Decision date:
28 May 2013
Before:
Backman J
Decision:

In IRC 1779 of 2011, the Court makes the following orders:

(1) Massood Raffo (the defendant) is convicted of the offence.

(2) The defendant is fined $7,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

In IRC 1780 of 2011, the Court makes the following orders:

(1) MRD Future Homes (Aust) Pty Ltd (the defendant) is convicted of the offence.

(2) The defendant is fined $70,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

In IRC 1781 of 2011, the Court makes the following orders:

(1) J&M Costa Enterprises Pty Ltd (the defendant) is convicted of the offence.

(2) The defendant is fined $70,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

Catchwords:
OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 - pleas of guilty to offences under s 8(1) and s 10(1) by virtue of s 26(1) - risk of falling through open stairwell void - objective factors considered - subjective factors considered - orders
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000
Category:
Principal judgment
Parties:
Inspector Keescha Brown (Prosecutor)
Massood Raffo (First defendant)
MRD Future Homes Pty Ltd (ACN 105050084) (Second Defendant)
J&M Costa Enterprises Pty Ltd (ACN 001 884 135) (Third Defendant)
Representation:
WorkCover Authority of New South Wales (Prosecutor)
Vaughan Zaab & Co (First and Second defendants)
Reimer Winter Williamson (Third defendant)
File Number(s):
IRC 1779 of 2011
IRC 1780 of 2011
IRC 1781 of 2011

Judgment

1J&M Costa Enterprises Pty Limited (Costa) pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). MRD Future Homes (Aust) Pty Ltd (MRD) pleaded guilty to one offence under s 10(1) of the Act. MRD's director, Massood Raffo, pleaded guilty to one offence under s 10(1) of the Act by virtue of s 26(1).

2All three offences concern the same factual circumstances which arose at a construction site at Canley Heights on 3 December 2009. On that day, Christopher Formosa, an electrician employed by Costa, fell 3.4 metres through an open stairwell void at the site onto a concrete floor. As a result of the fall, Mr Formosa suffered a traumatic brain injury which included skull fractures extending into the middle ear, as well as a brain haemorrhage, a fractured spine, a fractured collar bone, post-traumatic anaemia and bruising to the head and neck.

3The work being undertaken at the site at the time of the offences included the construction of a single dwelling that comprised three two-storey townhouses under the same roof span. MRD was the principal contractor at the site. It engaged Costa, an electrical contractor, to complete all electrical works which included temporary and permanent electrical supply, "rough in" and "fit out" of the townhouses. The electrical "rough in" component of the work involved the installation of all electrical wiring throughout the wall frames. Costa was contracted to complete this component of the work at the site on the day of the offences. Mr Formosa had been employed by Costa as an electrician since 2004 except for one year after he finalised his apprenticeship. He returned to work for Costa as a qualified electrician on 9 November 2009, that is, some three weeks prior to the accident.

4On 3 December, the structure of the building was largely complete. The stairwells had not been installed which left an open stairwell void in each townhouse. Mr Formosa was working on the first storey of Unit 2. He accessed the floor using a ladder. The void in Unit 2 was without any fall protection, that is, there was no handrail, void platform or other kind of barrier.

5Ben McPhee, a qualified electrician employed by Costa, was the designated site supervisor. In accordance with Costa's safety procedures, he completed a Site Specific Hazard Assessment Form, noting on the Form that the stairwell voids were not safe. He did not, however, provide the Form to Costa's employees or to MRD and no employee of Costa saw the Form. According to the Agreed Facts, the stairwell void was discussed among the employees at the site.

6Costa's employees commenced work at the site, therefore, in circumstances where the obvious hazard presented by the stairwell voids remained unchecked. Mr Formosa commenced work on the first floor of Unit 2 shortly before noon. Approximately five minutes after commencing work he fell through the stairwell void. The precise circumstances immediately before the accident remain unknown. What is known is that just before falling Mr Formosa was drilling through to the timber frame using an electric drill.

Systems of work prior to the accident

7The Agreed Facts set out the details of the systems of work implemented by MRD at the site. These are extracted in full below:

[22] Prior to the accident, MRD did not have an occupational health and safety management system ("OHSMS").

[23] MRD did not have a formal process for the engagement of subcontractors. The contractor relationship between MRD and Costa Enterprises had existed for approximately six years over approximately four smaller projects.

[24] MRD did not obtain any OH&S documentation from Costa Enterprises prior to commencement of work on site. The only exchange of documentation between the entities prior to work commencing was the quotation for the work and the plans for the building.

[25] MRD did not provide a site induction to Costa Enterprises' employees, or ensure that OH&S construction induction cards were held prior to commencing on the Canley Heights site.

[26] MRD did not install any fall protection or any other barrier around the open stairwell voids at the site in order to address the hazard presented by them and make them safe.

8The Agreed Facts also record the details of Costa's systems of work in place at the time of the accident:

[27] Prior to the incident, the defendant had a documented OHSMS procedure. However, the defendant's employees' knowledge of the overall OHSMS procedure appeared to be poor. A copy of the OHSMS was provided to each employee on the commencement of employment, and was placed in each of the defendant's vehicles, however, Mr Fesczuk, Mr Pham, Mr McPhee and Mr Formosa did not have a basic level of understanding or knowledge of this document. The Site Specific Hazard Assessment Form which formed part of the OHSMS was the only document Mr Fesczuk, Mr Pham and Mr Formosa were familiar with as it was regularly used on site, and the only OH&S document provided to the supervisor in the job card. Mr Fesczuk, Mr Pham and Mr Formosa were aware that this form was to be filled out by the defendant's site supervisor at the site prior to work commencing. For this site, the person was Ben McPhee.

[28] The work was distributed to the electrician by a job card. This was a folder detailing the work to be undertaken, electrical layout plans for the site and the Site Specific Hazard Assessment Form. The Site Specific Hazard Assessment Form was attached to the back of the job card. Employees collected the job cards from the store manager. David Costa (Construction Manager and Director) collated the information for the job card and decided on the allocation of the work.

[29] The defendant relied heavily on tool box meetings to discuss matters of OH&S. Tool box meetings were held monthly at the office in Penrith. Sections of the OHSMS were allegedly discussed during these meetings, however, as the tool box meetings were never documented, there was no evidence to identify who attended each meeting, and the details of what was discussed. When the defendant's employees were shown the relevant form from the OHSMS, Mr McPhee, Mr Pham and Mr Formosa did not recognise the document.

[30] Under the defendant's operational systems, a supervisor is deemed to be a person who is a trade qualified electrician. This definition of a "supervisor" is based on the fair trading supervisor certificate issued to the electricians for their own individual licences. This is reflected in the OHSMS for the company. The appointment of the supervisors is not based on experience, age and competence. There was no training provided to the supervisors in regards to the specific supervisory roles and responsibilities for the company.

[31] The employees on site Mr Fesczuk, Mr Pham and Mr Formosa were all aware that the site supervisor was to complete and discuss with employees a Site Specific Hazard Assessment Form for every site prior to commencement of work. On the day of the incident, this form was completed by the defendant's supervisor, Ben McPhee. However, the employees did not sign the completed Site Specific Hazard Assessment Form, nor did Ben McPhee enforce this requirement as was required by the existing Company policy. Work commenced on the site without the hazard being controlled.

[32] The directors did not attend the Canley Heights site and therefore relied on the site supervisor to complete the Site Specific Hazard Assessment Form and take appropriate actions after any hazards were identified. On the day of incident however, although this form was completed, no action was taken by Mr McPhee to rectify the hazard presented by the stairwell void. McPhee had the option to call Mr David Costa who would in turn call the principal contractor to rectify the issue identified on the form. Mr McPhee did not call Mr David Costa and allowed the work to continue on the site.

[33] The defendant did have safe work method statements (SWMS) as part of the OHSMS. The SWMS was generic and not site specific. There was no site specific SWMS for this site. Employees were not familiar with the requirement to undertake work in accordance with a SWMS.

[34] The defendant's consultation mechanism was through monthly tool box talks at their office in Penrith. Tool box talks were not conducted on the site.

[35] The defendant did not provide OH&S documentation to MRD prior to the commencement of work nor did MRD's director ask for any.

[36] The defendant relied heavily on the trade qualifications and skills of its employees.

[37] Mr Fesczuk, Mr Pham, Mr McPhee and Mr Formosa received limited or no training in relation to work at heights. Mr McPhee and Mr Pham said that they were provided with no training by the defendant and Mr Fesczuk said he received basic safety and work protocol training and Mr Formosa said he received training during his apprenticeship.

Other objective factors

9The risk to safety is particularised in each of the charges as the risk of persons suffering injury by reason of the open stairwell void penetration. There is no doubt that the risk was serious. The void was 3.4 metres above a bare concrete floor. Any injury sustained as a result of a fall through the void was likely to be very serious as Mr Formosa's injuries demonstrated. The risk was also known. Mr McPhee identified that the stairwell voids were not safe in the Site Specific Hazard Assessment Form. The stairwell void in Unit 2 was unprotected by any handrail, barrier or other form of fall protection, thereby posing an obvious risk to any person at the site.

10The risk to safety was reasonably foreseeable, a factor frankly conceded by all defendants. In written submissions, the prosecutor set out, conveniently, a number of indicia which illustrate the reasonable foreseeability of the risk, which the Court adopts in full in these reasons. The relevant part of the prosecutor's submissions is extracted below:

(a) There was no stairwell void protection in any of the three units on site.

(b) An inherent requirement of the electrical "rough in" work was for wiring to be conducted by the Costa Enterprises contractors on the upper levels of the townhouses, thus requiring work to be done around the unprotected stairwell voids.

(c) The absence of the stairwell void was noted by the Costa Enterprises Site Supervisor, Mr Ben McPhee, on the Costa Enterprises Site Specific Hazard Assessment Form, yet this form was not signed by the Costa Enterprises employees, including Mr Formosa.

(d) Despite the hazard being identified by Mr McPhee, it was not reported to the directors of Costa Enterprises in accordance with company policy so that a decision could be made as to whether or not to commence work with the hazard present.

(e) No decision was therefore made by anybody to suspend work until the stairwell voids were rendered safe.

(f) No documents relating to OH&S were requested or obtained by MRD from Costa Enterprises.

(g) Costa Enterprises employees were not site inducted by MRD.

(h) Costa Enterprises employees were unfamiliar with their own OH&S safety systems and documents with the exception of the Site Specific Hazard Assessment Form. This form, however, had little practical effect as the hazard recorded on it on the day of the incident was not rectified, nor were any steps taken to control it.

(i) Whilst Mr McPhee was the supervisor on site by virtue of being the most senior electrician on the job, he was not trained in relation to his supervisory role.

(j) Costa Enterprises did not devise a safe work method statement for the job.

(k) Costa Enterprises employees had inconsistent levels of training in relation to working at heights.

11Simple measures were also available to obviate, control or eliminate the risk. These measures include:

(i) covering the stairwell voids or providing other fall protection such as erecting a handrail or barrier;

(ii) postponing the work until the voids were secured against the danger of falling through.

12When these factors are considered in combination, it may be concluded that the absence of any systems, formalised or otherwise, in the case of MRD, and in the case of Costa, the failure to apply or implement its documented procedures, presented a very serious risk to the safety of persons working in the vicinity of the stairwell void. This matter was properly conceded by the defendants in their oral submissions.

Deterrence

13This Court has presided over a number of prosecutions under the Act which have involved a risk to the safety of workers by reason of open penetrations, or voids, at construction sites. The present offences provide yet another example of the risk and the failure of those persons responsible to obviate the risk. Employers and other entities, or persons, in control of construction sites need to be sent a clear message. The failure to obviate this particular risk to safety may well result in harsh penalties.

14Specific deterrence has application to all defendants. Costa works in the construction and building industry. It was submitted on behalf of Costa that it has, by its extensive post-offence remedial safety measures, effectively "rehabilitated" itself which in turn makes it unlikely to re-offend. Those measures have been helpfully set out in an affidavit of Stephen Costa, a director of Costa. The relevant passages are extracted in full below:

[9] Upon becoming aware of the incident in December 2009, J&M Costa reviewed its safety procedures. Dian Taylor is now the designated WHS Co-ordinator for the Company and conducts an ongoing review of the Company's safety procedures.

[10] In March 2010, as a result of the incident and a subsequent review, J&M Costa made changes to its Health, Safety & Environment Site Documentation Pack. The Document Pack had last been updated in 2007 based on recommendations provided by an independent OH&S Consultant. Annexed hereto at Tab 5 is a copy of the Health, Safety & Environment Site Documentation Pack current at the time of the incident, being December 2009.

[11] In March 2010, a new Risk Assessment Form was incorporated into the OH&S manual, together with changes to the Safe Work Method Statement (SWMS) and updating of the Material Safety Data Sheets (MSDS). Also a Safety & Environment Management Plan index, an Induction Register and a Contractor Site Induction and Safe Work Declaration Form were incorporated into the manual. Annexed hereto at Tab 6 is the Health, Safety & Environment Site Documentation Pack as at March 2010.

[12] Since the incident, J&M Costa was audited in relation to its OH&S and Safety Management Systems in October 2011. As a result of the audit J&M Costa has engaged an independent OH&S consultant IPAC to review and update the existing systems. The review outlined a number of proposed actions which J&M Costa has now addressed including:

(i) Managers have now attended a Due Diligence Awareness Course, held at our offices, which incorporated Workcover guidance materials and provided an outline of Due Diligence. It also gave suggestions of how managers can best fulfil their Due Diligence responsibilities.
(ii) All workers have now been re-inducted using the new inductions checklist as a guideline.
(iii) A new Site Specific WHS Management Plan has also been issued in September 2002, a copy of which is annexed hereto at Tab 7. The Site Specific Management Plan has now reinforced the process for identifying and controlling hazards. The new template includes:

(a) Work Area Inspections shall be undertaken daily;

(b) The electrician nominated on the work job card will ensure a safety inspection of all areas affected by our operation is completed before commencing work on the site;

(c) Results of the safety inspection are to be recorded and a copy submitted to J&M Costa's safety department;

(d) All items which require corrective action are to be addressed immediately, prior to any work commencing on the site; and

(e) Where hazards are unable to be controlled immediately, the electrician nominated on the work job card is to contact the principle (sic) contractor for the site and J&M Costa Management immediately and are not to commence work unless the hazard has been controlled.

(iv) New Safe Work Method Statements have also been issued in September 2012 and are now more closely aligned with requirements of high risk construction work. These Statements all now require completion of site hazard forms prior to commencement of any work. They also, at page 3, specifically refer to stair voids and require a stair void cover prior to the commencement of work. A copy of the current Safe Work Methods Statement is annexed hereto at Tab 8.

(v) Where WHS issues are communicated to employees through memos, these memos are to be signed by employees to indicate that they have received, read and understood the memo. A copy of a signed memo is annexed hereto at Tab 9.

[13] As a result of the incident, J&M Costa now rigorously holds monthly toolbox meetings to impress upon employees at every meeting the need to complete the site hazard forms prior to the commencement of work and to reiterate that it is the responsibility of the electrician nominated on the job card to ensure this task is completed. Toolbox meetings are also used to communicate safety issues to employees. Prior to the incident registers were not always signed, however since the incident all employees present at the Toolbox meetings must now sign the register to indicate their understanding of the meeting. Absentees are now also provided a copy of the meeting report and sign the register to acknowledge that they have read and understood the Report. A copy of the Meeting Reports and signed Registers are annexed hereto at Tab 10.

[14] At the time of the incident, J&M Costa also carried out an internal investigation of the incident. The investigation found there was a breakdown in the system along with behavioural deficiencies which resulted in the incident. J&M Costa have always had documented processes for workers to follow on site including a toolbox talk in relation to site hazards, which were not adhered to by the Site Supervisor at the time of the incident. The Site Supervisor was also required to control any hazards at the site, and should not have allowed work to commence without a stair well void cover.

[15] To address these issues, J&M Costa now requires the nominated electrician at each site to complete a site inspection and submit a copy of the results to J&M Costa's safety department. We also use monthly toolbox meetings, at which all employees acknowledge their understanding of the meeting by signing a register, to continually remind employees of the need to complete a hazard inspection and the procedure in relation to site hazards. Further J&M Costa has updated its OH&S Manual to bring it more in line with high risk construction work.

15These measures about which there was no dispute are comprehensive and impressive and attest to a genuine commitment on the part of Costa to ensure that construction sites at which it undertakes work are safe for workers. This matter serves to mitigate the penalty which would otherwise be imposed, although a small component must reflect the need to apply the principle since Costa continues to work in the construction industry.

16With regard to Mr Raffo and MRD, a small component of the penalty must also reflect the need to apply specific deterrence. Mr Raffo and MRD no longer undertake work in the construction industry, although Mr Raffo now works in the security industry. Moreover, Mr Raffo completed a National OHS Construction Induction Training course, conducted by WorkCover, on 10 March 2011. In oral submissions on behalf of Mr Raffo and MRD, the Court was informed that Mr Raffo has "some ambition" to return to work in the building and construction industry at some future time.

17None of the defendants have prior convictions. MRD and Costa, respectively, face a maximum penalty of $550,000, and Mr Raffo, a maximum penalty of $55,000.

Subjective factors

18The Court takes into account in mitigation of penalty a number of subjective factors relied upon by the defendants, which are addressed below.

19All defendants entered pleas of guilty at an early stage. A discount of 25 per cent of the penalties will be awarded to reflect the utilitarian value of each early guilty plea.

20The defendants are not adversely recorded and are therefore entitled to leniency.

21The defendants co-operated with the WorkCover Authority during the course of the investigation into the circumstances of the offences.

22The defendants also implemented measures designed to ensure safety at the site following the accident. The measures implemented by Costa have been earlier referred to in the context of the issue concerning the application of specific deterrence. The Agreed Facts set out a number of measures which were taken by the defendants after the accident. For convenience, the relevant portion of the Agreed Facts is extracted below:

MRD

Installation of hand rails on all stairwell voids and on balconies was organised by Mr Raffo of MRD immediately after the incident.

Mr Raffo arranged for a void platform system to be installed on the project on 9 December 2009, six days after the incident.

The Costa's employees returned to the site on 15 December 2009 to complete the agreed scope of work.

Costa was able to provide WorkCover with Safe Work Method Statements (SWMS) for other subcontractors for work undertaken after the incident. The SWMS appeared to have been written by Mr Raffo himself and signed by the subcontractor.

Costa Enterprises

Immediately after the incident, David Costa (Construction Manager/Director) of Costa Enterprises and Dian Taylor (payroll and OHS officer) attended the site. It was noted by Mr Costa that there were no fall protective measures in place in the unit two stairwell void.

The defendant's work allocation continued to be issued through the job card system.

The Site Specific Hazard Assessment Form continued to be completed by the supervisor prior to work commencing. There have been no changes to the hazard reporting procedures.

There is no evidence to indicate that Costa has made SWMS site specific for each job.

Consultation has continued via the same mechanism of monthly tool box talks at the office in Penrith. The commencement of the documentation of toolbox talks started in April 2002. From mid to late 2010 onwards, these talks were minuted and a register of staff in attendance was signed.

Costa's safety documentation was reviewed in September 2009, increasing the size of the OHSMS. The two versions of the OHSMS are essentially identical, however the latest version has procedures added to it.

Stephen Costa (General Manager/Director) has taken responsibility for the OHSMS and is stated to be the person in control of the system post incident. As at 14 December 2010, the OHSMS required further review, and the process of reviewing was said to be ongoing.

23There was no contest between the parties that each defendant had expressed contrition for the circumstances leading up to Mr Formosa's accident. In my view, the evidence tendered during the sentence hearing establishes that each defendant has expressed contrition in accordance with the requirements under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.

24It was submitted on behalf of Costa that Mr Costa, as director, takes full responsibility for Mr Formosa's injuries. In his affidavit Mr Costa said:

In relation to this incident I am very remorseful as are all of the management staff of the Company. The incident has highlighted to both the management and employees at J&M Costa that there is a need for constant vigilance on workplace safety and the serious consequences if systems fail. I am confident that the actions taken by the Company post this incident and the Company's focus on safety in the workplace will ensure that we have a safe working environment.

25Similarly, with regard to MRD and Mr Raffo, the Court takes into account, as demonstrating contrition, the post-accident remedial measures implemented by Mr Raffo. In addition, Mr Raffo gave oral evidence during which he explained that Mr Formosa's accident affected him to such an extent that he has not been able to return to work in the construction industry. This evidence, which was unchallenged, was supported by a report prepared by Mr Raffo's treating doctor, Dr PG Williams, who stated that Mr Raffo was, "devastated by the workplace accident". Dr Williams also reported that a previous illness contracted by Mr Raffo's mother some time before the offence caused him to suffer an adjustment disorder that reduced his ability to cope.

26Costa also relied upon some documentation to support a submission urging the Court to take into account its capacity to pay a fine. The documentation was described on Costa's behalf as a "snapshot" which it was said nevertheless demonstrated that Costa's income had reduced and its expenditure had increased some time in 2012. The documentation consists of a Notice of Assessment for the year ending 30 June 2011, issued to John A Costa (one of Costa's directors) showing a tax liability in the amount of $623,978.25. According to the affidavit of Mr Stephen Costa, the liability was paid on 23 April 2012, although Costa was required to redraw on its commercial bill in order to meet the payment. According to Mr Stephen Costa, the downturn in the property industry in 2011 resulted in Costa experiencing a significant decline in profits. A letter from Costa's accountant dated 12 October 2012 was relied upon as illustrating Costa's financial position as at that date. The letter simply shows that Costa's total liabilities increased by some $500,000 during the period from 30 June 2011 to 30 June 2012.

27The Court indicated to Costa that the documentation may not constitute sufficient evidence upon which to properly consider whether Costa had a financial capacity to pay a fine. Costa did not furnish any further material. Given this state of affairs, the Court is unable to properly consider whether Costa has the capacity to pay a fine commensurate with the objective seriousness of the offence. The material, such as it is, does not suggest that Costa is without funds. Costa continues to operate in the construction industry.

28No submission was made on behalf of MRD or Mr Raffo that either defendant lacked the financial capacity to pay a fine. Mr Raffo gave some evidence to the effect that he owned a house worth approximately $500,000 with a small mortgage, as well as an investment property under mortgage which is currently being rented. This material suggests that Mr Raffo has the financial means to pay a fine.

29The defendants also provided assistance to Mr Formosa following the accident. It was submitted on behalf of Mr Raffo that he rang the ambulance immediately after the accident and otherwise sought to aid Mr Formosa. On behalf of Costa, Mr Stephen Costa said that Mr Formosa continues to work for Costa, although in a different role.

30Costa also has a very good industrial record. It has been operating as an electrical and air-conditioning company for over 30 years without any health and safety incidents until the incident the subject of these offences.

31The prosecution also invited the Court to take into account the principle of parity on the basis that the factual circumstances underpinning each offence are similar. The material is relevant to a consideration of the principle of consistency in sentencing and the respective roles and culpabilities of each defendant. No submission was made however, to the effect that the defendants were equally culpable or more or less culpable by reason of their respective roles in the circumstances leading up to the accident. What may be said is that Mr Raffo's culpability cannot be greater than that of MRD. In this regard, the prosecution submitted that MRD was basically a "one man company", and, Mr Raffo, as director, had ultimate control over its activities. Clearly, all defendants had responsibilities in relation to the safety of the site, and their respective failures to ensure safety contributed to the risk created by the open stairwell void through which Mr Formosa fell. MRD's contribution to the risk was that, as principal contractor and site controller, it had a responsibility to ensure the site was safe. It failed to do this by not providing any form of fall protection for the exposed stairwell void. Consistent with its plea of guilty, MRD also failed to inform Costa's employees of the risk posed by the open stairwell void. Costa failed to ensure that MRD provided the necessary safety means to protect persons from falling through the void. Consistent with its plea of guilty, Costa also failed to provide the necessary supervision to its employees working at height by failing to ensure that those employees were provided with fall protection and by failing to ensure that work on the site ceased until the hazard was rectified. In the absence of any submission as to each defendant's level of culpability in relation to the circumstances of the offences, it is open to find that each defendant's culpability was equal. While MRD was the principal contractor and had overall responsibility for safety at the site, Costa was directly responsible for the safety of Mr Formosa as its employee, as well as its other employees.

Orders

32In IRC 1779 of 2011, the Court makes the following orders:

(1) Massood Raffo (the defendant) is convicted of the offence.

(2) The defendant is fined $7,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

33In IRC 1780 of 2011, the Court makes the following orders:

(1) MRD Future Homes (Aust) Pty Ltd (the defendant) is convicted of the offence.

(2) The defendant is fined $70,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

34In IRC 1781 of 2011, the Court makes the following orders:

(1) J&M Costa Enterprises Pty Ltd (the defendant) is convicted of the offence.

(2) The defendant is fined $70,000 with a moiety to the prosecutor.

(3) The defendant is to pay the prosecutor's costs and disbursements as agreed or in the absence of agreement, as assessed.

* * * * * *

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 28 May 2013