Inspector Orr v Perilya Limited [2018] NSWDC 29

Inspector Orr v Perilya Limited [2018] NSWDC 29

The prosecutor did not establish beyond reasonable doubt that Perilya Limited was conducting a business or undertaking in the operation of the mine. The preferred evidence was that Perilya did not own or operate the mine; PBHL controlled and managed the mine day to day; Perilya's legal capacity to control PBHL arose from its 100% shareholding but was not put into practice; Perilya lacked the resources and manpower to operate the mine; HSE reports and public statements were explained by disclosure and reporting obligations; and PBHL could change the HSE system without reference to Perilya. A legal right of control through 100% share ownership was not enough, without more, to make the...

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Criminal Prosecution for an Alleged Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Principal Judgment After Hearing; Defendant Pleaded Not Guilty
Outcome
The prosecution failed on the first element and the Second Amended Summons was dismissed.
Legal Topics
['person Conducting a Business or Undertaking' 'health and Safety Duty' 'parent Company and Wholly Owned Subsidiary' 'operation and Control of Mine' 'corporate Disclosure and Reporting Obligations']
['criminal Law' 'work Health and Safety' 'mining Law' 'corporations'] ['person Conducting a Business or Undertaking' 'health and Safety Duty' 'parent Company and Wholly Owned Subsidiary' 'operation and Control of Mine' 'corporate Disclosure and Reporting Obligations']

Case Brief

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Procedural Posture

Criminal Prosecution for an Alleged Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Principal Judgment After Hearing; Defendant Pleaded Not Guilty

Legal Issues

  1. 1 ['Whether Perilya Limited was conducting a business or undertaking in the operation of the mine within the meaning of the Work Health and Safety Act 2011 (NSW).' 'Whether Perilya Limited, as the 100% shareholder and parent company of Perilya Broken Hill Limited, was also an owner or operator of the mine.' 'Whether the prosecutor established beyond reasonable doubt the first element of the alleged offence under s 32 of the Work Health and Safety Act 2011 (NSW).']

Ratio Decidendi

The prosecutor did not establish beyond reasonable doubt that Perilya Limited was conducting a business or undertaking in the operation of the mine. The preferred evidence was that Perilya did not own or operate the mine; PBHL controlled and managed the mine day to day; Perilya's legal capacity to control PBHL arose from its 100% shareholding but was not put into practice; Perilya lacked the resources and manpower to operate the mine; HSE reports and public statements were explained by disclosure and reporting obligations; and PBHL could change the HSE system without reference to Perilya. A legal right of control through 100% share ownership was not enough, without more, to make the...

Court Disposition

The prosecution failed on the first element and the Second Amended Summons was dismissed.

Orders

  • ['The Second Amended Summons is dismissed.' 'I shall hear the parties on costs.']