WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370

WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370

The defendants, including non-executive directors, breached their duty by failing to ensure plant safety under s 10(2) (and s 26(1) for directors) of the Occupational Health and Safety Act 2000; the risk of serious injury was foreseeable and penalties imposed reflected objective seriousness, parity, deterrence, financial circumstances and mitigation for plea of guilty.

Jurisdiction
Australia
Judgment Date
24 November 2006
Procedural Posture
Criminal Prosecution / Sentencing Judgment
Outcome
convictions recorded, penalties imposed
Legal Topics
['failure to Ensure Safe Plant' 'director Liability' 'foreseeability' 'objective Seriousness' 'deterrence' 'parity' 'sentencing' 'financial Considerations' 'pleas of Guilty']
['occupational Health and Safety' 'criminal Law' 'industrial Law'] ['failure to Ensure Safe Plant' 'director Liability' 'foreseeability' 'objective Seriousness' 'deterrence' 'parity' 'sentencing' 'financial Considerations' 'pleas of Guilty']

Case Brief

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Procedural Posture

Criminal Prosecution / Sentencing Judgment

Legal Issues

  1. 1 ['Did the defendants fail to ensure that plant used at work was safe and without risks to health in breach of s 10(2) Occupational Health and Safety Act 2000?' 'Were the directors personally liable under s 26(1) for the corporate breach?' 'What is the appropriate penalty considering objective seriousness, foreseeability and principle of parity?' 'Should the pleas of guilty and financial circumstances influence sentence?']

Ratio Decidendi

The defendants, including non-executive directors, breached their duty by failing to ensure plant safety under s 10(2) (and s 26(1) for directors) of the Occupational Health and Safety Act 2000; the risk of serious injury was foreseeable and penalties imposed reflected objective seriousness, parity, deterrence, financial circumstances and mitigation for plea of guilty.

Court Disposition

convictions recorded, penalties imposed

Orders

  • ['Akerman-Apache (Joint Venture) Pty Limited: guilty; penalty $105,000; moiety allocated to prosecutor.' 'Jonathan Dwyer Herbert: guilty; penalty $10,250; moiety allocated to prosecutor.' 'John Lindsay Walker: guilty; penalty $10,250; moiety allocated to prosecutor.' "Defendants to pay prosecutor's costs as agreed...