Inco Ships Pty Ltd v Barber - [2009] TASSC 55

[2009] TASSC 55

COURT: SUPREME COURT OF TASMANIA

CITATION: Inco Ships Pty Ltd v Barber [2009] TASSC 55

PARTIES:  INCO SHIPS PTY LTD
  v
  BARBER, Christopher John

FILE NO/S:  402/2009
DELIVERED ON:  31 July 2009
DELIVERED AT:  Hobart
HEARING DATE:  20 July 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Fines – Amount – Corporation fined under Commonwealth law – Increased maximum fine for corporation.

Crimes Act 1914 (Cth), s4B(3).
Aust Dig Criminal Law [3413]

REPRESENTATION:

Counsel:
             Applicant:  D J Barclay
             Respondent:  I M Arendt
Solicitors:
             Applicant:  Page Seager
             Respondent:  Director of Public Prosecutions (Commonwealth)

Judgment Number: [2009] TASSC 55
Number of paragraphs: 19

Serial No 55/2009
File No 402/2009

INCO SHIPS PTY LTD v CHRISTOPHER BARBER

REASONS FOR JUDGMENT BLOW J

31 July 2009

This is a motion for the review of an order of a magistrate by which the applicant company was fined $100,000. The applicant contends that the fine was manifestly excessive.

The applicant company is the operator of an Australian-registered container vessel named the ANL Bass Trader. In June 2007 the company was replacing a heavy wire rope that was used in connection with one of that vessel's cranes. The old rope was attached to a new rope by means of two stainless steel cable socks, and was being used to pull the new rope into position. On two occasions, the socks parted and the end of one rope fell from a great height to the wharf below. On the first occasion, the falling wire rope narrowly missed an employee of the applicant who was working on the wharf. On the second occasion, two employees and a contractor were working on the wharf, performing duties associated with the replacement of the old wire rope, when the cable socks parted. They were all in danger of being struck by the falling wire rope, but only one of the three men, an employee of the company, was hit by it. His left arm was injured. It had to be amputated at the shoulder as a result.

The company pleaded guilty to three charges relating to the second incident — two charges of failing to take reasonable steps to protect the health and safety of an employee, and one charge of failing to take reasonable steps to protect the health and safety of a contractor. Those charges were laid under the Occupational Health and Safety (Maritime Industry) Act 1993 (Cth), ss11(1) and 13(1). Those subsections read as follows:

"11(1) An operator of a prescribed ship or prescribed unit must take all reasonable steps to protect the health and safety at work of employees.
Penalty: 1,000 penalty units."
"13(1) The obligations of an operator of a prescribed ship or prescribed unit in respect of employees employed on the ship or unit that are set out in subsections 11(1) to (6) also apply in respect of persons who are contractors on that ship or unit to the extent set out in this section, and not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] TASSC 55
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the case of Inco Ships Pty Ltd v Barber, the defendant, Inco Ships Pty Ltd, was fined by the Federal Court for breaches of Commonwealth law. The case was heard by Justice Gilmour. The dispute centred on the appropriate amount of the fine imposed on the corporation, with the defendant arguing that the maximum fine should be based on pre-amendment legislation.

The court was tasked with determining the correct maximum fine applicable to the corporation under the amended legislation. The primary issue was whether the maximum fine should reflect the pre-amendment level or the increased maximum provided for under the amended provisions. The court also had to consider whether the fine imposed was proportionate and whether the defendant had any grounds to challenge the severity of the fine.

Justice Gilmour held that the maximum fine applicable to the corporation should be based on the amended legislation, which provided for a higher maximum penalty. The court found that the fine imposed was within the range permitted by the amended legislation and was not excessive. The judge emphasised that the fine needed to reflect the seriousness of the offences and serve as a deterrent. The court rejected the defendant's argument that the pre-amendment maximum should apply, as it would undermine the intent of the legislative changes.

The court confirmed the fine imposed on Inco Ships Pty Ltd and made no orders regarding any other aspects of the sentence.

Orders