Perilya Limited v Nash [2015] NSWSC 706

Supreme Court New South Wales

Medium Neutral Citation: Perilya Limited v Nash [2015] NSWSC 706 Hearing dates: 15 April 2015 Decision date: 05 June 2015 Jurisdiction: Common Law Before: Hall J Decision: In each of proceedings 2014/328915 and 2014/328923, orders made that:

(1) Leave be granted to the plaintiff to appeal against conviction pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2001.

(2) The appeal against conviction in Ground 1 be dismissed.

(3) Leave granted to the plaintiff to appeal in respect of the penalties imposed by the Local Court on 13 October 2014.

(4) The appeal against penalties in Grounds 2 and 3 be dismissed.

(5) Leave to appeal refused in respect of the appeal for the costs order made by the Local Court on 13 October 2014 in Ground 4.

(6) Leave granted to either party to apply on the issue of the costs of these proceedings. Catchwords: WORKPLACE SAFETY – Statutory powers of investigation – Power of a Regulator to issue Notices under s 155 Workplace Health and Safety Act 2011 – Prosecution for failure to comply with Notices – whether Notices under s 155 were beyond power and therefore invalid – Scope of the coercive power under s 155 is determined by the conditions specified in the section including the existence of 'reasonable grounds for belief' as specified in s 155(1) as to the capacity of a person to give information, provide documents etc in relation to the specified wide-ranging functions of the Regulator – the Notices issued under s 155 were within power – Notice to recipient to produce 'Board Minutes' within power – Recipient not entitled to refuse production on the basis of relevance – Confidentiality provisions in the Act provide necessary protection in respect of confidentiality of documents and other records – No extraterritorial operation of the Notices – Appeal against conviction dismissed – Whether penalties imposed were excessive – Whether principle of totality reflected in penalties – Failure to provide the same documents in response to Notices under s 155(1) amounted to two separate acts of criminality – Penalties within available range and properly reflected overall criminality – No error demonstrated - Penalties were not excessive.