Inspector Wayne James v Sunny Ngai & Ors [2007] NSWIRComm 203

Industrial Court of New South Wales

CITATION: Inspector Wayne James v Sunny Ngai & Ors [2007] NSWIRComm 203

PROSECUTOR Inspector Wayne James PARTIES: DEFENDANTS Sunny Shu Kei Ngai Guech Ning Ly

FILE NUMBER(S): IRC 608, 609, 614 and 766 of 2006

CORAM: Staff J

CATCHWORDS: Occupational health and safety - Defended hearings unders s 8(2) by virtue of s 26(1) of the Occupational Health & Safety Act 2000 where corporation acknowledged contravention of the Act - Defences raised under s 26(1)(a) - Tissue manufacturing corporation - Machine not properly guarded - Employee's arm caught in machine - Defendants directors of the corporation at the time of contravention - Defences under s 26(1)(a) considered - Whether defendants being directors were not in a position to influence the corporation's contravening conduct - Governing director provision in Articles of Association - Limitations imposed upon directors by Articles of Association - Whether defendants were in a position to influence the contravening conduct of the corporation - Objective test of capacity to influence the conduct of the corporation - Status or standing of directors considered - Scope and source of powers of directors examined - Directors' roles, responsibilities, powers and duties limited - No involvement in occupational health and safety matters - Defendants had no real control over the corporation's conduct - Lack of complicity in respect of the offences - Defendants lacked necessary influence in respect of corporation's contravention - Defences made out - Summonses dismissed - Costs

Companies Act 1936 Companies Act 1961 (Q) LEGISLATION CITED: Corporations Act 2001 Occupational Health & Safety Act 2000 WorkCover Legislation (Amendment) Act 1995