Chevalley v Industrial Court of New South Wales

(2011) 82 NSWLR 634; [2011] NSWCA 357

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Chapter III
3. › Judicial power
4. › State courts as repositories of federal jurisdiction
5. › Kable principle
6. › Whether deemed liability provision for directors violates institutional integrity of court
7. › Whether defences illusory rendering proceedings a charade
8. › Constitution (Cth), Ch III, ss 71, 77(iii)
1. Criminal Law
2. › Director's liability for corporate contravention
3. › Deemed liability provisions
4. › Occupational health and safety
5. › Whether defences in s 26(1)(a) and (b) illusory
6. › Construction of 'position to influence' and 'all due diligence'
7. › Occupational Health and Safety Act 2000 (NSW), ss 8, 12, 26, 28
1. Evidence
2. › Admissibility
3. › Certificate of conviction
4. › Whether certificate of conviction of corporation admissible to prove contravention in proceedings against director
5. › Evidence Act 1995 (NSW), s 178
1. Criminal Law
2. › Charges and particulars
3. › Sufficiency of particulars
4. › Whether charges against directors required to particularise acts or omissions of directors or steps of due diligence
5. › Whether Kirk v Industrial Relations Commission extends to require particularisation of director's due diligence

Quick Take

In prosecutions of directors under s 26 of the Occupational Health and Safety Act 2000 (NSW), the prosecutor must prove the corporation's contravention beyond reasonable doubt even where the corporation has previously been convicted, and a certificate of conviction under s 178 of the Evidence Act is not sufficient for this purpose. The defences in s 26(1)(a) and (b) are not illusory and require genuine judicial determination of the director's position, influence, and due diligence. Kirk does not require the prosecutor to particularise the due diligence the director should have undertaken, as the defences are not elements of the offence. Whether s 28 provides an additional defence to directors beyond s 26 was left open by Sackville AJA.