INSPECTOR LANCE TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LTD [2001] NSWIRComm 155

Industrial Relations Commission of New South Wales in Court Session

CITATION : INSPECTOR LANCE TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LTD [2001] NSWIRComm 155 PROSECUTION: PARTIES : Inspector Lance Taylor DEFENDANT: Fletcher International Exports Pty Ltd FILE NUMBER: IRC2012-2016 of 2000 CORAM: Kavanagh J CATCHWORDS : Prosecutions under s15(1) - five charges - submission by defendant of "no case to answer" at close of prosecution's case - issue as to "employer" - tests to be applied - finding as to employer an essential element of the offence - finding of no case to answer on evidence - prosecution statute barred from issuing further summons/order under s15(1) by s49 of the Act which requires charge to be brought within two years - application then brought by the prosecution under s15(4) - from the evidence prosecutor submits the court would find a charge proven under s16(1) - evidence considered as to the elements of offence which require proof under s16(1) before conviction - found not sufficient evidence to convict - question as to unfairness in pressing the s16(1) application under s15(4) at close of prosecution case before defendant has opportunity to call evidence in circumstances where defendant has no notice as to charge LEGISLATION CITED : Occupational Health and Safety Act 1983 Crimes (Sentencing Procedure) Act 1999 Catherine Anne Wasow v R 18 ACrim 348 Shaw v The Queen (1952) 85 CLR 365 CASES CITED : Lawrence v The Queen 38 ALR 1 WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Limited (unreported decision of Marks J, IRC3884-3586 of 1997, 30 April 1998) WorkCover Authority (Insp Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm115 Inspector Page v Woolworths Limited & Anor (unreported decision of Peterson J, No CT1044&1047 of 1993, 9 Sept 1994) HEARING DATES: 06/04/2001; 06/05/2001 DATE OF JUDGMENT: 07/17/2001