NSW Caselaw
Industrial Relations Commission of New South Wales in Court Session
CITATION: Inspector Ken Kumar v Francis James Burn [2005] NSWIRComm 206
Prosecutor Inspector Ken Kumar PARTIES: Defendant Francis James Burn
FILE NUMBER(S): 5366, 5370, 5364 of 2003
CORAM: Backman J
CATCHWORDS: Occupational Health and Safety - three prosecutions under s26(1) of the Occupational Health and Safety Act 2000 - pleas of guilty entered to all offences - three offences under s26(1) arise by virtue of defendant's status as sole director of two corporate defendants - defendant not guilty in relation to s8(2) offence against corporate defendant - Application for Order No IRC 5366 of 2003 dismissed - in relation to remaining two offences held defendant directed no attention to any matters concerning safety - whether there was a reasonably foreseeable risk to safety - deterrence - consequences of the breaches - subjective features - early pleas of guilty - capacity to pay a fine - application of totality principle - penalty - orders.
LEGISLATION CITED: Occupational Health and Safety Act 2000
Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 Inspector Ken Kumar v Keralex Pty Limited (In Administration) [2005] NSWIRComm 199 Inspector Ken Kumar v Top Container Transport Pty Ltd (In Liquidation) [2005] NSWIRComm 203 CASES CITED: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 R v Shenton (2003) NSWCCA 346 R v Thompson, R v Houlton 49 NSWLR 383, 115 A Crim R 104. WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121
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