Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 Hearing dates: 29 March 2011 Decision date: 11 April 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant is found guilty of the charge brought against him and convicted accordingly. 2) The defendant is to pay a monetary penalty of $25,000 with a moiety thereof to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - undefended proceedings - Court to consider whether any evidence adduced in the earlier proceedings would enable it to consider the availability of any defence under s 26 - defence not available to defendant - defendant found guilty - appropriate penalty - objective seriousness - serious breach - relative culpability - general and specific deterrence - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 8(1), s 26 Cases Cited: Inspector Nicholson v Ibrahim [2011] NSWIRComm 39 Inspector Nicholson v Mackey [2010] NSWIRComm 159 Inspector Nicholson v Nahed [2011] NSWIRComm 41 Inspector Nicholson v Pymble No 1 & Molinara [2010] NSWIRComm 151 Inspector Nicholson v Sawmaa [2011] NSWIRComm 38 Category: Principal judgment Parties: Inspector Anthony Nicholson (Prosecutor) Phillip Mackey (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) No appearance for defendant Legal Group, WorkCover Authority of New South Wales (Prosecutor) File Number(s): IRC 625 of 2009