Liang v Inspector David Farmer [2010] NSWIRComm 156

Liang v Inspector David Farmer [2010] NSWIRComm 156

The Chief Industrial Magistrate erred in rejecting the appellant's evidence about his absence from Australia where that evidence was not challenged and was corroborated by a Movement Record held by the respondent, and the error affected the rejection of the s 26(1)(a) defence. The Chief Industrial Magistrate also...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 November 2010
Procedural Posture
Application for Leave to Appeal and Appeal Against Convictions and Orders for Offences Under the Occupational Health and Safety Act 2000 / Full Bench Appeal From Decisions and Orders of Chief Industrial Magistrate Hart
Outcome
Leave to appeal granted; appeal upheld; judgment quashed for the two remaining s 66(a) charges; proceedings remitted to the Local Court for rehearing. Orders below for six other charges were vacated by consent, with costs reserved.
Legal Topics
['liability of Directors for Corporate Contraventions' 'statutory Defence Under S 26(1)(a) of the Occupational Health and Safety Act 2000' 'validity of Director Appointment Under S 201 A(1) of the Corporations Act 2001 (cth)' 'failure to Comply With Inspector Notices']
['occupational Health and Safety' 'corporations'] ['liability of Directors for Corporate Contraventions' 'statutory Defence Under S 26(1)(a) of the Occupational Health and Safety Act 2000' 'validity of Director Appointment Under S 201 A(1) of the Corporations Act 2001 (cth)' 'failure to Comply With Inspector Notices']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Appeal Against Convictions and Orders for Offences Under the Occupational Health and Safety Act 2000 / Full Bench Appeal From Decisions and Orders of Chief Industrial Magistrate Hart

Legal Issues

  1. 1 ["Whether the Chief Industrial Magistrate erred in rejecting the appellant's evidence concerning his absence from Australia and involvement with Ferro Constructions Pty Ltd." "Whether the appellant was entitled to rely on the defence in s 26(1)(a) of the Occupational Health and Safety Act 2000 that he was not in a position to influence Ferro's conduct in relation to its contraventions." 'Whether the Chief Industrial Magistrate took an erroneous approach to the construction and application of s 26(1)(a).']

Ratio Decidendi

The Chief Industrial Magistrate erred in rejecting the appellant's evidence about his absence from Australia where that evidence was not challenged and was corroborated by a Movement Record held by the respondent, and the error affected the rejection of the s 26(1)(a) defence. The Chief Industrial Magistrate also erred by approaching s 26(1)(a) as if a director's liability were almost absolute and by failing to focus on whether the appellant was in a position to influence Ferro's conduct in relation to the specific contraventions on 1 December 2007. The convictions on the two remaining charges were therefore quashed and the proceedings remitted for rehearing.

Court Disposition

Leave to appeal granted; appeal upheld; judgment quashed for the two remaining s 66(a) charges; proceedings remitted to the Local Court for rehearing. Orders below for six other charges were vacated by consent, with costs reserved.

Orders

  • ['The judgment of the Chief Industrial Magistrate as it refers to Court Attendance Notices alleging a contravention of s 66(a) of the Occupational Health and Safety Act on 1 December 2007 at Kogarah and the Court Attendance Notice as it alleges a second contravention of the same provision of the Act on 1 December...