Inspector Cooper v Chung [2012] NSWIRComm 79

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Cooper v Chung [2012] NSWIRComm 79 Hearing dates: 16 July 2012 Decision date: 23 July 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court makes the following orders: (1) The defendant, Byung Man Chung, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s (1) of that Act, as particularised in Matter No IRC 766 of 2011, and is convicted of the offence. (2) The defendant is to pay a penalty of $25,000 with half that sum to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor. (4) Orders 2 and 3 are suspended and shall become operative on 1 July 2014 at which time the fine and costs will become payable. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution of person concerned in the management of a corporation for contravention of s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act - Failure to guard machine - Employee's fingers and thumb of left hand amputated - Prior conviction for similar offence involving amputation in 2006 - Undischarged bankrupt - Capacity to pay - Fine imposed - Payment of fine and costs postponed for 24 months Legislation Cited: Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Ian Batty v Brian John Goldsmith [2009] NSWIRComm 72 WorkCover Authority of NSW (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; (2008) 172 IR 210 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited, (Schmidt J, 25 February 1994, unreported) Category: Principal judgment Parties: Inspector Stephen Cooper (Prosecutor) Byung Man Chung (Defendant) Representation: Mr P Ginters of counsel (Prosecutor) Crown Solicitor's Office (Prosecutor) Byung Man Chung (Defendant - in person) File Number(s): IRC 766 of 2011