Inspector James v Kimberly-Clark Australia Pty Ltd [2004] NSWIRComm 142

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector James v Kimberly-Clark Australia Pty Ltd [2004] NSWIRComm 142 PROSECUTOR Inspector Wayne James PARTIES : DEFENDANT Kimberly-Clark Australia Pty Ltd FILE NUMBER: 5972 and 5973 of 2003 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecutions - failure to ensure health, safety and welfare of an employee and a non-employee at work - plea of guilty - prior convictions for breaches of OH&S legislation - victim impact statements tendered - foreseeable risk of injury - serious offence - general and specific deterrance considered - subjective matters, including contrition and workplace improvements, taken into account - discount applied - principle of totality applied - defendant to pay costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Shops and Industries Act 1962 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 CASES CITED : Inspector Glass v Foamex Polystyrene Pty Ltd (2004) NSWIRComm100 HEARING DATES: 05/22/2004 DATE OF JUDGMENT: 06/08/2004

PROSECUTOR Mr D O'Neil of counsel Solicitor: Ms L Barnes WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson SC with Mr Wilson of counsel Solicitor: Mr J Noakes Deacons

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 8 June 2004 Matter No IRC 5972 and 5973 of 2003 INSPECTOR WAYNE JAMES v KIMBERLY - CLARK AUSTRALIA PTY LTD Prosecution under s.8(1) and s.8(2) of the Occupational Health and Safety Act 2000 JUDGMENT NSWIRComm 142