Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40

Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40

The defendant was guilty because NT Prestressing Pty Ltd had breached s 8(1) of the Occupational Health and Safety Act 2000, the defendant was its director at all relevant times, and no evidence allowed the Court to be satisfied that either s 26(1)(a) or s 26(1)(b) defence was available. The breach was most serious, involving inadequate risk assessment, fall prevention, safe systems of work, induction, information, instruction, training and supervision, and a penalty of $25,000 was appropriate after considering culpability and deterrence.

Jurisdiction
Australia
Judgment Date
11 April 2011
Procedural Posture
Occupational Health and Safety Prosecution Alleging Breach of Occupational Health and Safety Act 2000 S 8(1) by Application of S 26(1) to a Director / Undefended Proceedings; Judgment on Availability of S 26 Defences, Conviction and Penalty
Outcome
The defendant was found guilty, convicted, ordered to pay a monetary penalty of $25,000 with a moiety to the prosecutor, and ordered to pay the prosecutor's costs.
Legal Topics
['director Liability' 'undefended Proceedings' 'section 26 Defence' 'fall Prevention' 'construction Site Safety' 'penalty' 'deterrence']
['occupational Health and Safety' 'industrial Law'] ['director Liability' 'undefended Proceedings' 'section 26 Defence' 'fall Prevention' 'construction Site Safety' 'penalty' 'deterrence']

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Procedural Posture

Occupational Health and Safety Prosecution Alleging Breach of Occupational Health and Safety Act 2000 S 8(1) by Application of S 26(1) to a Director / Undefended Proceedings; Judgment on Availability of S 26 Defences, Conviction and Penalty

Legal Issues

  1. 1 ['Whether any evidence enabled the Court to find a defence available to the defendant under Occupational Health and Safety Act 2000 s 26(1)(a) or s 26(1)(b).' 'Whether the defendant should be found guilty and convicted after the earlier finding that NT Prestressing Pty Ltd breached s 8(1) and that the defendant was its director at all relevant times.' 'What monetary penalty was appropriate having regard to objective seriousness, culpability, deterrence and any mitigating factors.']

Ratio Decidendi

The defendant was guilty because NT Prestressing Pty Ltd had breached s 8(1) of the Occupational Health and Safety Act 2000, the defendant was its director at all relevant times, and no evidence allowed the Court to be satisfied that either s 26(1)(a) or s 26(1)(b) defence was available. The breach was most serious, involving inadequate risk assessment, fall prevention, safe systems of work, induction, information, instruction, training and supervision, and a penalty of $25,000 was appropriate after considering culpability and deterrence.

Court Disposition

The defendant was found guilty, convicted, ordered to pay a monetary penalty of $25,000 with a moiety to the prosecutor, and ordered to pay the prosecutor's costs.

Orders

  • ['The defendant is found guilty of the charge brought against him and convicted accordingly.' 'The defendant is to pay a monetary penalty of $25,000 with a moiety thereof to the prosecutor.' 'The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of...