Inspector James v Ryan (No 3) [2010] NSWIRComm 127

Inspector James v Ryan (No 3) [2010] NSWIRComm 127

The term 'director' under s 26 of the Occupational Health and Safety Act 2000 includes de facto and shadow directors as defined under s 9 of the Corporations Act. However, on the facts, the respondent was neither validly appointed, nor a de facto or shadow director of Dekorform Pty Ltd at the relevant time, nor in a position to influence the conduct resulting in the OHS contravention. The appeal is dismissed except in relation to the interpretation of s 26.

Parties
Appellant: Inspector Wayne James; Respondent: Justin James Ryan
Jurisdiction
Australia
Judgment Date
03 September 2010
Procedural Posture
Appeal Occupational Health and Safety Prosecution / Judgment on Appeal (full Bench)
Outcome
Appeal dismissed (except as to legal interpretation of 'director'); leave to appeal granted.
Legal Topics
Definition of Director, De Facto and Shadow Director Liability, Statutory Interpretation OHS Act, Corporate Management Liability for OHS Breach
Occupational Health and Safety Corporations Law Criminal Law (regulatory Offence) Definition of Director De Facto and Shadow Director Liability Statutory Interpretation OHS Act Corporate Management Liability for OHS Breach

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Parties

Inspector Wayne James

Appellant

Justin James Ryan

Respondent

Procedural Posture

Appeal Occupational Health and Safety Prosecution / Judgment on Appeal (full Bench)

Legal Issues

  1. 1 Meaning of 'director' in s 26(1) of the OHS Act
  2. 2 Whether respondent was appointed as director according to the constitution of Dekorform Pty Ltd
  3. 3 Whether respondent was a de facto or shadow director under s 9 Corporations Act

Ratio Decidendi

The term 'director' under s 26 of the Occupational Health and Safety Act 2000 includes de facto and shadow directors as defined under s 9 of the Corporations Act. However, on the facts, the respondent was neither validly appointed, nor a de facto or shadow director of Dekorform Pty Ltd at the relevant time, nor in a position to influence the conduct resulting in the OHS contravention. The appeal is dismissed except in relation to the interpretation of s 26.

Court Disposition

Appeal dismissed (except as to legal interpretation of 'director'); leave to appeal granted.

Orders

  • Leave to appeal granted
  • Appeal dismissed except as to ground 7, which is upheld (legal definition of 'director')