Inspector Nicholson v Mackey

Judgment 1As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter.

AVAILABILITY OF DEFENCE UNDER S 26(1)(a) AND (b) 2In these proceedings, I delivered judgment on 22 November 2010 in which I found that the prosecutor had established a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by NT Prestressing Pty Ltd ("NT"), such breach being that which was alleged in the application for order filed by the prosecutor, as particularised therein. Furthermore, I found that the defendant in these proceedings, Phillip Mackey, was a director at all relevant times of NT and that, prima facie, he would be found guilty of a breach of s 8(1) of the Act by reason of the application of s 26(1) of the Act. All of these matters are referred to in my earlier judgment, Inspector Nicholson v Mackey [2010] NSWIRComm 159. 3In my earlier judgment, I gave the prosecutor an opportunity of making submissions about whether there was any evidence given in the proceedings that would enable the Court to consider the availability of any defence under s 26(1)(a) or (b) of the Act. In order for any such defence to be available to the defendant, the Court would need to be satisfied on the civil onus that he was not in a position to influence the conduct of NT in relation to its contravention of s 8(1) of the Act or, if he were in such a position, he used all due diligence to prevent the contravention by NT. 4As I indicated in my earlier judgment, the defendant has not participated in any way in the proceedings. All of the available evidence that might touch upon the applicability of any defence under s 26(1)(a) or (b) is that which was contained within the prosecution case, and to which I referred in my earlier judgment. 5I should state at the outset that there is no evidence of any kind as to any diligence used by the defendant to prevent the contravention by NT and that there is no basis for finding that the defence under s 26(1)(b) is available to him. 6This leaves for consideration determination as to whether there was any evidence that the defendant was not in a position to influence the conduct of NT in relation to its contravention of the provision. The evidence that might arguably touch upon the availability of this defence was given by Mr Power to the effect that to his knowledge the defendant did not reside in Australia and, secondly, his understanding that the defendant had no day-to-day involvement in the operations of NT. 7In written submissions, the prosecutor dealt with this evidence. It was pointed out that, firstly, the defendant was the sole director of NT and that, prima facie, he had a great deal of control over its activities. Furthermore, it was stressed that the evidence that was available to the Court was within a very narrow compass, it would not allow the Court to conclude that the defendant had not involved himself in any way in the conduct of the affairs of NT and there was simply no evidence about any lack of influence on the part of the defendant himself, whether from within Australia, if he had visited Australia from time to time, or from outside Australia by the several means of communication available to him. 8Having reconsidered the evidence given in the proceedings and the submissions of the prosecutor, I am of the opinion that there is no evidence that would allow the Court to conclude that there was any defence available to the defendant under s 26(1)(a) of the Act. In circumstances where the defendant has not participated in any way in the proceedings and has thereby chosen not to adduce any evidence, the state of the evidence does not allow the Court to be satisfied that he was not in a position to influence the conduct of NT in relation to its contravention of s 8(1) of the Act, which is the subject of these proceedings.