Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204

Industrial Court of New South Wales

CITATION: Inspector Steven Nikolovski v Northpac Constructions Pty Limited and Anor [2009] NSWIRComm 204 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PROSECUTOR: Inspector Steven Nikolovski PARTIES: DEFENDANTS: Northpac Constructions Pty Limited Nicholas Commisso

FILE NUMBER(S): 1026 of 2007; 1027 of 2007

CORAM: Backman J

CATCHWORDS: Occupational health and safety prosecution - defended hearings under s 8(2) and s 10(1) of the Occupational Health and Safety Act 2000 - bricklayer suffers serious injuries after falling off third level of building under construction in an area which did not have catch scaffolding - risk to safety was fall from height - alleged failures to ensure adequate fall protection and adequate supervision - undertaking of corporate defendant considered - place of work considered - s 28 defences relied upon by corporate defendant - held: s 8(2) offence proven - s 10(1) offence considered - whether Mr Commisso or his company Cross City Pty Ltd was person in control of the premises - s 10(1) offence dismissed - orders.

LEGISLATION CITED: Occupational Health and Safety Act 2000

CASES CITED: St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182

HEARING DATES: 29-30/04/2008, 1-2/05/2008, 20/05/2008, 12/06/2008, 5/12/2008, 18/03/2009, 14-17/04/2009

DATE OF JUDGMENT: 27 November 2009