EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

Transcription

1 EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]. SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011 IN THE DISTRICT COURT AT OAMARU CRI [2017] NZDC WORKSAFE NEW ZEALAND Prosecutor v LINDSAY WHYTE PAINTERS AND DECORATORS LIMITED Defendant Hearing: 30 November 2017 Appearances: S H Backhouse for the Prosecutor M Anderson for the Defendant Judgment: 30 November 2017 NOTES OF JUDGE J E MAZE ON SENTENCING [1] The defendant company, Lindsay Whyte Painters and Decorators Limited, was engaged to renovate by painting the exterior of a block of 10 flats owned by a trust and rented to elderly tenants. The units were partially single and partially two-storied. [2] The victim was employed by the defendant company in preparing the buildings for the re-painting. It seems clear that there was no discussion about attendant risks from the proposed preparation work before the preparation work began. There was no protection put in place to protect workers from falls from the roof and it seems clear that there was no up-to-date consideration of the obligations. I will come back to that WORKSAFE NEW ZEALAND v LINDSAY WHYTE PAINTERS AND DECORATORS LIMITED [2017] NZDC [30 November 2017]

2 in relation to the obviousness of hazard issues and the extent of departure from industry standards. [3] The victim was on the roof. He misplaced his step and fell from the roof while trying to clean the exterior, preparatory as I have said to the re-painting. He fell through a glass-top table and struck the ground. The distance through which he fell was about 2.8 metres. He suffered multiple complex facial lacerations and a fractured elbow. [4] The company owned some scaffolding but its use had not been discussed and it seems unlikely that there was any policy of using scaffolding for single-storey work. [5] The company has said that a meeting could always be held if the workers on site chose to have one but that of course does not reflect the thrust of the new legislation. [6] The failures identified by WorkSafe are a failure to identify the risks on flat single-storied roofs, to minimise those risks and to properly train and instruct workers and that these steps involve readily available information and are inexpensive to perform. WorkSafe says the company failed to accept beforehand the level of responsibility it held for all risk identification and management of those risks for its employees. [7] There was no safety plan or training specifically to address working at heights for flat single-storied roofs and the company accepted that it would not have provided scaffolding under the regime then in place where workers were on a flat single-storied roof. [8] The company obviously had an obligation to provide scaffolding platforms and edge protection and it did not do so. It failed to provide harnesses and any other equipment suitable to address edge protection where better forms of protection are not practicable. That is the company failed to provide systems which did not require active judgments by the workers themselves to keep themselves safe.

3 [9] It could be said there is some quibbling about this to an extent in the defence submissions but I accept that that failure strikes at the very heart of the legislation now in place. [10] It was the company s obligation to ensure that the risks were addressed for the workers and that in each and every case, no matter how short or long the risk duration may be, those risks and the steps necessary to address them were obvious and available and the company did not meet that standard. It had simply opted for a meeting if the workers identified the need for one and that was plainly insufficient. [11] Remedial action has included co-ordination with WorkSafe, compliance with an improvement notice, the purchase of edge protection equipment, the provision of instruction and training to workers and the upgrading of some of the equipment and there is no request for a training order as part of the sentencing exercise. [12] I now turn to the personal circumstances of those involved. Neither the defendant company nor Mr Whyte personally have any previous convictions. The defendant company has attended a restorative justice meeting, which was a very positive meeting. As is not uncommon in restorative justice meetings of this type, the victim bears no animosity. He was out of pocket for certain expenses, some $650, and he has now moved to Australia for work but will keep in touch with his former employer, that is the directors, Mr and Mrs Whyte. The victim remains friendly with Mr Whyte s family. The injuries do not seem to be an impediment to work, physically or psychologically. I have the benefit of both the victim impact statement and the restorative justice conference report. [13] Mr Whyte is in effect the life of this company. It is a small-scale operation, employing at times one and at times two trade qualified or apprentice painters. There are two directors, Mr Whyte, who is 62 years of age, and has been engaged in this line of work for 46 years. I have personal references for him and I accept that he is regarded as a trustworthy, responsible and contributing member of the community. [14] The other director is also of good standing within the community. Mrs Whyte is unwell and she can take no practical part in the operation of the business and I

4 understand that this was the situation at the time of the offending. Of course, however, as a director she has responsibilities to discharge. [15] The company is said to be financially precarious and WorkSafe has not challenged that. The defendant company has reviewed its safety procedures. In particular, as I have already said, it now requires the use of scaffolding for work above ground level. It has bought new ladders and equipment. It has re-inspected all equipment to ensure it complies with the required standards. It has reminded employees of their obligations to comply with directions and in particular, use of edge protection and scaffolding. It has purchased new harnesses. It has undertaken additional staff training on health and safety and other work is planned in the event that the company remains viable after this sentencing exercise. [16] As to what occurred, I accept that there is nothing extraordinary about what occurred in the line of cases of this kind which demands any particularly strong or deterrent response. [17] This is sentencing under new legislation, relatively soon after it has come into force. Few decisions are available in this jurisdiction and there is no guidance available from the superior Courts. [18] The starting point remains as per Department of Labour v Hanham & Philp Contractors Ltd 1, despite this prosecution being under replacement legislation in the form of the Health and Safety at Work Act Nothing, however, has changed in relation to the approach mandated in Department of Labour v Hanham & Philp Contractors Ltd. Therefore, I must fix the reparation, fix the fine and any other orders and then adjust in the exercise of discretion, as under all previous prosecutions since Department of Labour v Hanham & Philp Contractors Ltd was determined. [19] I must have regard to the purposes of the legislation as recorded in s 3, with the mandatory requirement to have regard to the principle that workers and other 1 Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC)

5 persons should be given the highest level of protection against harm to health, safety and welfare from hazards and risks arising from work and specified types of plant. [20] The maximum penalty for this offence is a fine of $1,500,000. [21] Section 151 lists the sentencing criteria. I must apply the Sentencing Act 2002 with particular regard to ss 7 to 10, both inclusive of the Sentencing Act, as well as the purpose of the Health and Safety at Work Act and the risk of and potential for illness, injury or death. I must have regard to whether any of those events did occur or could reasonably have been expected to occur. I must have regard to the safety record of the defendant, the degree of departure from prevailing safety standards and financial capacity to pay. [22] Therefore, as I see the approach broadly, the general approach to sentencing is largely agreed between counsel. The issue is the extent to which Department of Labour v Hanham & Philp Contractors Ltd still mandates the approach in relation to banding. [23] The prosecution seeks $25,000 in reparation, with an additional $ for out of pocket expenses. WorkSafe says this is a case of moderate culpability and the starting point for the fine, in light of the maximum, WorkSafe says should be $700,000, with reduction for personal mitigating factors at 30 percent and reduction for plea at 25 percent. Although originally a training order was sought, that is no longer sought. WorkSafe seeks an order for costs of prosecution in the region of $ [24] Mr Anderson s submissions are to seek reparation at $20,000, as agreed with the victim through restorative justice and it is his submission that the out of pocket expenses should simply be deducted from the $20,000 agreed. He submits a fine in the region of $15,000 as an end result should be imposed to reflect the very limited means of the defendant company and there does not seem to be any real challenge by WorkSafe as to the financial position of this company. The defendant company opposes a costs award, largely for practical reasons but there are other considerations and I will come to that.

6 [25] I start then with reparation. I have absolutely no difficulty in following the request to fix the reparation at $20,000. It appears to meet the actual victim s wishes. It is not totally at odds with the range normally applicable for such a level of injury for a workplace environment but importantly the purpose is compensation not punishment. The victim is able to assess the compensation he seeks and needs and that has been accepted by the defendant company. [26] As there is no continuing work relationship between the victim and the defendant company, I cannot say the victim s expression of what he sees as appropriate reflects any improper pressure or any personal future concern for employment. He has been very clear in what he said: I am leaving working for Lindsay but it had nothing to do with the accident. I might or might not come back depending on how things go. I will be keeping in touch with Lindsay and the gang when I am in Australia. We were all close and I was even [details deleted]. We are all good mates. I do not want to see Lindsay fined over this. It will affect his business. Lindsay has paid enough to get all the safety things needed for the business. I am not bothered about compensation. Do not really want it but if the insurance company is paying, I would accept and maybe give it to Lindsay. [27] The conclusion of the facilitator was there was no animosity. The conference was held in good spirit. There were no hard feelings and the victim would say the accident was his fault as he stepped off the roof. Now, of course that is not the point but that is an issue not for reparation. It is an issue for sentencing in relation to the fine. [28] Where reparation is concerned, I am not going to undermine the integrity and independence of the victim in his approach to the matter. He appears to have been under no improper pressure, no unwise concerns which might have compromised his thinking and in those circumstances, he knows what he regards as fair and proper reparation to make amends. [29] So, the amount will be $20,000, which will be split between $19, for emotional harm and $ for direct losses. [30] I now turn to the fine. The issue which has engaged both counsel in literally forests of paperwork is where to begin fixing the level of culpability. WorkSafe says

7 this should be done on a banding basis and has suggested that it is appropriate for this Court to follow the concepts fixed by the Court of Appeal in R v AM (CA27/2009) 2, which is of course a sexual violation case but WorkSafe says this meets the requirements of the Sentencing Act. [31] That submission, however, ignores the fact that such banding exercises are not the domain of the District Court. They are responses as a guide by appellate Courts to the inferior Courts where appellate Courts consider variables are not such as to render banding inappropriate as a method of guidance. The extent to which aggravating factors are present and the degree to which they are present is the proper assessment for fixing levels of culpability in light of any mitigating factors of the offending. That is what the law requires me to do. That is what the Sentencing Act requires me to do and that is what I must do. [32] What is proposed by WorkSafe is something of an oversimplified approach. The scale and gravity of the offending may differ as to type of departure from prevailing standards but even where it is alike in either act or omission, the scale and gravity of the offence may differ according to the scale of the enterprise. A one-man-band with one or two employees failing to take steps to ensure those employees have sufficient and adequate protection when working at heights above ground level must inevitably be different in scale of offending from that of a very large company engaged nationally in the same kind of work and failing to have proper equipment and procedures for the large number of employees it engages in the same kind of work. [33] It is for those companies who offend on the largest scale that the considerable increase in the maximum has been enacted and it seems to be clear that the impetus for the change in law were the 29 fatalities at Pike River. The scale of that informs my remarks. [34] I see this as a relevant consideration in assessing the presence and extent of aggravating factors of the offending, separate from capacity or incapacity of an individual company to pay. 2 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750, (2010) 24 CRNZ 540

8 [35] I accept that this Court has been given little guidance in relation to the new offending when it comes to fixing starting points of fines. The pragmatic approach of adjusting upwards to reflect the legislatures apparent requirement that penalties be increased generally is the only real option. That is what was done in WorkSafe New Zealand v Budget Plastics (New Zealand) Ltd 3 and that has not been appealed by WorkSafe. [36] Mr Anderson has listed a number of practical problems with this and other approaches and academically I accept he is probably right but I have a binding authority, Department of Labour v Hanham & Philp Contractors Ltd. All I can do is take into account the maximum available penalty and adopting the approach that maximum is reserved for the worst offences of that type, try to assess the level of gravity of this offending and identify where, on a sliding scale up to the maximum, I place that after taking into account the aggravating and mitigating factors of the offending. That is no more and no less than applying the Sentencing Act, which is the bread and butter of the criminal list Court. [37] Identifying the risk of working at heights, educating staff and providing obvious and inexpensive preventative measures are basic requirements, noting the obvious nature of the potential for harm, even with what might be seen as relatively low heights. I take no issue with WorkSafe reliance upon the fact that a fall even from the most modest height to ground level can have serious and at times fatal consequences. The length of time it takes to do a task is not the point. The risk while doing it is the issue. [38] I must also assess the starting point having regard to the extent of harm done to the victim. Here he has fully recovered, from what I can tell, although the facial lacerations required medical skill for repair and he will retain scars. I am not told they are wholly disfiguring and that is not a matter of which the victim complains. The broken bone has healed. It is plain from the restorative justice conference, as I have said already, that the victim holds no ill-will and regards matters as at an end. 3 WorkSafe New Zealand v Budget Plastics (New Zealand) Ltd [2017] NZDC 17395

9 [39] Taking those sorts of factors into account, the culpability cannot be said to be at the lower end of the scale. I will come back to this issue in due course. [40] It must be seen, I think, as being at the upper end of low in its transition to the lower end of medium, leading to injuries from which the victim has recovered and which were never life-threatening or disabling in fact but plainly had the capacity to be either. [41] Mr Anderson argues against a simplistic multiplication exercise from previous levels and he must be correct, if sentencing were purely formulaic, and that is certainly not what was ever intended by the banding guidance, then Judges would be redundant and mindless multiplication of previous banding does not seem to be a proper exercise of judicial function. [42] I also note Mr Anderson s submissions, para 41.6, in relation to the requirements of s 151. The Court must consider financial capacity to the extent it has the effect of increasing the fine and therefore a larger scale employer can expect a higher level of response but the proper place for consideration of financial capacity must be in the adjustment exercise. [43] So, Department of Labour v Hanham & Philp Contractors Ltd lies still at the heart of fixing the starting point, as does tailoring to fit the circumstances of the case, including level of culpability, level of injury, scale of risk, scale of enterprise, extent of failure and so on. In the end, the superior Courts will need to assist this Court with any banding range under the new regime. [44] In WorkSafe New Zealand v Budget Plastics (New Zealand) Ltd, His Honour Judge Large noted that the Australian decisions were of limited assistance. I have heard arguments today about whether they are or are not of assistance. His Honour considered there were problems with the WorkSafe approach and in that case, WorkSafe had sought a starting point of $900,000. His Honour found moderate culpability demanded a starting point between $400,000 and $600,000.

10 [45] In WorkSafe New Zealand v Rangiora Carpets Ltd 4, His Honour Judge Gilbert discussed starting points within bands of his own creation and I am not critical of that. I understand entirely his reasoning. His approach is summarised in para [34]. His Honour considered an increase in the number of bands was appropriate and necessary. He adopted a starting point of $300,000 for a not too dissimilar factual scenario. I am asked to bear in mind that at para [36], His Honour said: However, I also think it important to acknowledge that the mezzanine was a storage area. This case is distinct, for example, from a roofing company whose workers are routinely operating at height and, therefore, always at risk. [46] I respectfully adopt a different response to that. This creation of a storage area in a sense invites reliance and it presented the same risks all the time that the floor, as it was perceived to be, would cave-in and a fall could occur. I therefore do not accept the distinctions that His Honour has drawn because the very creation of that storage area presented an appearance of safety and an invitation for reliance. [47] However, His Honour adopted a starting point of $300,000 for a similar factual scenario. He considered the offending to be in the low to medium range and as is submitted here by Mr Anderson, although Mr Anderson seeks a starting point of $100,000. [48] The difficulty is that until the approach in Department of Labour v Hanham & Philp Contractors Ltd is either confirmed or changed, I remain bound by it as the approach to banding. It is a simple matter of extrapolating percentages from the banding guideline in Department of Labour v Hanham & Philp Contractors Ltd and it is merely the amounts for the starting points then which must change. [49] I agree with Her Honour Judge Ryan in the Tasman Tanning Company Limited, which I accept is now subject to appeal by the defendant. It is still possible to adjust the ranges to accommodate the rise in the maximum but banding is not rigid and as s 151 makes plain, a number of factors must be considered. 4 WorkSafe New Zealand v Rangiora Carpets Ltd [2017] NZDC 22587

11 [50] As I have said, the prosecution seeks a starting point at $700,000 but Mr Anderson submits, and I accept, that that is unsustainable when not hugely dissimilar levels of culpability as are alleged here are the subject of other decisions in this Court which have not been appealed by WorkSafe. [51] Acknowledging they do not bind me and that they are at this stage of interest only, the fact remains that the starting point the prosecution seeks cannot be appropriate in light of the various matters which have to be taken into account and that includes the true scale of the risks and the true scale of the enterprise, in this case little more than an owner/operator business. [52] The aggravating factors then here are that the defendant company sent the men to work at a height potentially without identifying the risks with those directions and considering and installing adequate protections and without requiring compliance by the workers with those protections and measures. Those protections are readily identifiable. [53] I accept they amount to a prevailing remedy within the industry and are readily and cheaply available. There has been some argument today about that and in particular, Mr Anderson s submissions, paras [62] and [63], as to the industry s alleged confusion and misconceptions in relation to the regulations and the, he says, confusion that heights of over three metres required specific measures and that they did not apply to heights of under three metres. [54] I have no evidence on that issue but I do note that WorkSafe has provided guidance and recognised that there might be some confusion but the fact remains that the guidance is to this effect. Regulation 21 Health and Safety in Employment Regulations 1995 is the source of the often quoted three-metre rule. It is mistakenly believed that no controls are needed where a person faces a fall of less than three metres. That belief is wrong and ignores the overarching duties in the Health and Safety in Employment Act That of course pre-dates the new Act and it has been very clear to all and not simply those in particular industries. The new legislation is far reaching in its changes and its demands for improved safety measures for persons at work. So, for someone to simply cling to a perception on what is now outdated

12 legislation and claim that in some way ameliorates their approach cannot be sustainable. Ignorance of the law is no excuse. [55] So, I accept that the prevailing remedy within the industry is clear enough. The remedies are readily and cheaply available. Advice on educating your staff in relation to risks and suitable protections is readily available, as is the ability to require staff to comply and actively monitor their level of compliance. [56] In this case I would consider that the extent of departure from the prevailing standards is high when considering that factor alone and it should be second nature for an employer to address these issues with each legislative change and to assess, and if necessary take advice on, degree of compliance with the new prevailing requirements. However, the business activity as a whole is at the lower end of the scale. It is a smallscale operation with very few employees exposed to risk. [57] The banding under the old legislation in comparable cases, and I refer to those cited by WorkSafe, have suggested a starting point in the region of anything from 20 to 35 percent of then available maximum and in this case, recognising what I consider to be broadly factually similar scenario with WorkSafe New Zealand v Rangiora Carpets Ltd and the guidance from the old cases, when assessing the seriousness and taking into account the s 151 necessary considerations aside of financial capacity, I consider that the starting point should be $300,000. [58] I regret I am unable to accept the reasoning that it should be as low as that suggested by Mr Anderson in his submissions. [59] There are no personal aggravating factors. The discount for amelioration and remediation and making amends should be at the maximum traditionally available. I allow $90,000 and the discount for plea I put at $75,000, which leaves a provisional fine of $135,000. [60] I will address at this point the adjustment in relation to the fine because it has a degree of logic at this point in time.

13 [61] [details deleted] [62] [details deleted] [63] I note the approach in the affidavit filed for WorkSafe, that the business in effect reduces the return available to Mr Whyte of $50,000 and that if the directors have any other income, then that sum could be directed towards the fine but it seems abundantly clear they have no other source of income and WorkSafe has accepted that factually. [64] So there is an argument that a very small business, making a very modest living, and providing employment for one or two others other than the principal, should be able to have the impact of a large fine taken into account but on the other hand of course, there cannot be subsidisation of poorly run businesses by in effect allowing such businesses to escape the rigours of the legislation designed to protect workers. If a business cannot cover by normal trading the costs of worker protection, then it is not a viable business and Parliament has made it clear that worker protection is a central element in running a business. So failure to meet the obligations must attract significant penalties. [65] A balance is needed. Mr Anderson submits a final fine of $15,000 is appropriate. In WorkSafe New Zealand v Budget Plastics (New Zealand) Ltd, the end fine was $100,000, allowing adjustment for financial hardship. In WorkSafe New Zealand v Rangiora Carpets Ltd, where there was no inability to pay, and rather a lump sum of about a third could be paid immediately, the end result was a fine of $157,500. [66] I have been referred to the Mobile Refrigeration Specialists Ltd v Department of Labour 5 decision and His Honour Heath J dealt with the issue of reduction for ability to pay fines on appeal from the District Court. His Honour emphasised the need for a defendant to provide clear evidence of financial incapacity and observed the need for full disclosure is supported by R v Khan 6. The Court of Appeal observed that it was 5 Mobile Refrigeration Specialists Ltd v Department of Labour High Court, Hamilton, 4/6/ R v Khan CA312/05, 7 March 2006

14 essential wherever a Court determines to deal with a matter by way of monetary penalty, that there is clear and unequivocal material as to what is realistic before the course of action is pursued and while generally a Court should impose a fine within the offender s ability to pay, there is authority for the proposition that in appropriate cases fines may be imposed at a level beyond the company s apparent means. [67] His Honour Judge Harrop in WorkSafe New Zealand v Dimac Contractors Ltd 7, 24 November 2017, at paras [89] to [91] concluded: [89] There is no doubt that any fine imposed must bite. Fines ought not to be seen by a business as licence fees as simply a cost of being in business. But the bite must not be fatal or crippling. [90] Where financial incapacity is established, as it is here, in my view the correct approach is (assuming this is still below the prima facie appropriate fine) to set the fine at the maximum the company can reasonably expected to pay, taking into account the ability to reach an arrangement for payment by instalments with the Registrar. [91] Subject to Heath J s comments, if a highly culpable corporate defendant is undoubtedly insolvent, and therefore unable to meet any fine then, applying s 14(1) of the Sentencing Act, no fine may properly be imposed. Provided the end fine is lower, it would in my view be wrong to relate it by percentage or otherwise to the level of the earlier-determined prima facie appropriate fine. A fine cannot be greater than the defendant s ability to pay indicates, regardless of how far short it is of the fine assessed as appropriate without reference to capacity to pay. [68] In the end, there is something of a sense of arbitrariness in the reduction exercise but I adopt a figure which represents two years of the devotion of 50 percent of the available maximum gross income to Mr Whyte s household, being the sum anticipated to be available for distribution to shareholders and that will leave Mr Whyte with a shareholder income which is, and I am not entirely sure about the amounts, but likely to be at or possibly slightly above what he could draw as a benefit. I fix the fine at $50,000. [69] I now turn to the issue of costs. The prosecution here was straightforward and resulted in a guilty plea. The complexity, if any, results from the new sentencing provisions and regime and the lack of guidance from the legislature. As a matter of principle, I question why that should necessarily be passed to a defendant. There 7 WorkSafe New Zealand v Dimac Contractors Ltd [2017] NZDC 26648

15 remains guidance from the superior Courts which is adjustable to take into account the changes. [70] The only evidential basis I have upon which I am expected to exercise a discretion as provided for in s 152 of the Act, is the content of para 8.6 on page 26 of the prosecution s submissions. That would appear to suggest that three solicitors have been engaged in this work and that on an arbitrary basis, 50 percent of the costs should be claimed but the solicitors involved are in-house counsel employed by a Government department which is a legal entity and while I acknowledge that s 152 was enacted following a recommendation from the taskforce, that the regulator WorkSafe should have the ability to recover its costs as, This would help to ensure the system is not supporting the poor performance of the worst offenders. [71] Nevertheless, the situation is that this Government department is in the same position as a self-represented litigant. In the normal parry and thrust of criminal proceedings, a successful self-represented litigant cannot expect an award of costs for legal expenses when he or she did not engage a solicitor. It may be different if there are third party expenses such as might arise from, for example, the costs of testing for asbestos or such like. [72] There is a tension between the two principles and it is a tension which is not apparently resolvable on the simple wording of s 152 but I do not determine the costs application on that basis alone. [73] Although s 152 permits an award of costs, the discretion to the Court is in the widest possible terms. The examples given are the equivalent of, as I have said already, expenses incurred in investigation but importantly here, none of the decisions of [Judges] in this Court seem to address the principles to be applied to any application for costs. There seems to be a presumption that costs will be awarded. That is certainly not what s 152 says. It says the prosecution may bring an application. The Court may award costs. [74] So as with any application which requires an exercise of discretion, evidence must be presented. I have not been presented with evidence. The insertion of a little

16 boxed series of numbers in submissions is not a basis to enable me to exercise a discretion in a principled fashion. The fact that the submission is made often and not questioned or resisted is not the basis for a principled exercise of discretion. [75] The fact that many people may make a mistake, and it is the same mistake, does not correct the fact that it is a mistake. I am not suggesting that other Judges have made mistakes. I simply say that repetition of something does not necessarily make it correct. [76] So I would decline the request for costs principally on the basis that no evidential basis has been laid to enable me to exercise my discretion. Any such evidential basis must be filed and served in advance of the hearing. It must be the subject of opportunity for testing and argument as to relevant applicable principles. The exercise of discretion, if any, must then proceed on a principled basis in light of the facts established by credible and reliable evidence. Any application for costs, whether by WorkSafe under s 152 or in any other situation, will be the same. WorkSafe must abide by the rules and not merely point to a legislative provision which permits a Judge to exercise a discretion. [77] In any event, the defendant company is impecunious after the exercise here. It seems to me on balance distinctly possible Mr and Mrs Whyte will not continue to operate the business without income or without a living above the very basic for the next two years or more. [78] In those circumstances, I cannot award costs against the defendant company. It has no insurance cover. The costs application therefore is declined. [79] In summary then, the defendant company is convicted. It is fined $50,000. I do not award Court costs. Reparation is ordered in the sum of $20,000, being $19, for emotional harm and $ for direct losses. There is no costs award and the training orders are not sought. [80] In relation to suppression as to an inability to pay, that is difficult because while I accept that it may have an impact upon the defendant s ability to continue to trade,

17 the fact remains that this legislation and the thrust that lies behind it rests upon businesses accepting the responsibilities cast upon them and those who wish to engage those businesses being confident that they are adhering to the requirements of the legislation. [81] There is suppression of the affidavits of [witness 1 and 2] and any submissions relating to those affidavits. J E Maze District Court Judge