Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151

Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151

Pymble No 1 Pty Ltd did not have the requisite control of the construction site for s 10(1) because the evidence did not show that it attended the site, supervised the works, obtained or reviewed safety documents, gave safety directions, or had a contractual or other ability to compel immediate corrective action. Its ownership of the site, contingent rights of access, rights to appoint an architect, and rights arising on contractual default were insufficient to amount to control. As the alleged contravention by the corporation was not established, the proceedings against both Pymble No 1 Pty Ltd and Silvio Molinara were dismissed.

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Prosecutions Under S 10(1) and by Virtue of S 26 of the Occupational Health and Safety Act 2000 / Judgment After Not Guilty Pleas
Outcome
Proceedings against each defendant dismissed; costs reserved.
Legal Topics
['duties of Controllers of Work Premises' 'control of Construction Site' 'director Liability for Corporate Contravention' 'fall Prevention at Worksite']
['occupational Health and Safety' 'criminal Prosecution' 'corporate Liability'] ['duties of Controllers of Work Premises' 'control of Construction Site' 'director Liability for Corporate Contravention' 'fall Prevention at Worksite']

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Procedural Posture

Prosecutions Under S 10(1) and by Virtue of S 26 of the Occupational Health and Safety Act 2000 / Judgment After Not Guilty Pleas

Legal Issues

  1. 1 ['Whether Pymble No 1 Pty Ltd had control of the premises at 23 Ryde Road, Pymble for the purposes of s 10(1) of the Occupational Health and Safety Act 2000.' 'Whether ownership of premises on which building works were being conducted was sufficient to constitute control under s 10(1).' 'Whether the contractual rights of Pymble No 1 Pty Ltd under the building contract with Millennium Project Group Australia Pty Ltd gave it the ability to direct or command corrective action to secure safety on the site.' 'Whether Silvio Molinara, as a director of Pymble No 1 Pty Ltd, was taken to have contravened s 10(1) by reason of s 26(1).']

Ratio Decidendi

Pymble No 1 Pty Ltd did not have the requisite control of the construction site for s 10(1) because the evidence did not show that it attended the site, supervised the works, obtained or reviewed safety documents, gave safety directions, or had a contractual or other ability to compel immediate corrective action. Its ownership of the site, contingent rights of access, rights to appoint an architect, and rights arising on contractual default were insufficient to amount to control. As the alleged contravention by the corporation was not established, the proceedings against both Pymble No 1 Pty Ltd and Silvio Molinara were dismissed.

Court Disposition

Proceedings against each defendant dismissed; costs reserved.

Orders

  • ['The proceedings brought against each defendant are dismissed.' 'Costs are reserved with liberty to apply.']