NSW Caselaw
Industrial Relations Commission of New South Wales
CITATION: Inspector Stephen Cooper v Kwik-Seal Pty Ltd and anor [2006] NSWIRComm 48
PROSECUTOR: Inspector Stephen Cooper
PARTIES: DEFENDANTS: Kwik-Seal Pty Ltd and David John Seal
FILE NUMBER(S): IRC 2418 and 2419 of 2005
CORAM: Haylen J
CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(2) - offences by corporation and director - pleas of guilty - director in person represents defendants at sentencing hearing - corporate defendant supplying specialist waterproofing services - defendants engage sub-contractors to perform waterproofing of tanks in city high-rise residential building - sub-contractor alters method of work and is overcome by fumes - employees and sub-contractors not trained in methods for working in confined spaces and emergency procedures - safety equipment including respirators, harnesses and carrying frame provided but not used by sub-contractor - serious offence found - application under s 10 Crimes (Sentencing Procedure) Act 1999 - subjective factors - parlous financial state of defendants considered - exceptional circumstances established - requirements of justice support exercise of s 10 discretion - offences proved but no conviction recorded
Clean Waters Act 1970 Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Crimes Act 1900 s 556A Fines Act s 6 Occupational Health and Safety Act 1983 & 2000
Department of Mineral Resources v Berrima Coal Pty Ltd (2001) 105 IR 348 Environmental Protection Authority v Brazel (No 3) [2002] NSWLEC 120 Inspector Searle v Baptist Community Services - NSW and ACT (unreported, 19 December 2003: IRC 1520 of 2001) CASES CITED: R v Kay Piccin (2001) NSWCCA 323 Proudman v Dayman (1941) 67 CLR 536 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd (2001) 110 IR 469 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] 138 IR 21
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