Inspector McCarthy (nee Shaw) v Siva Kumaran Mathiaparanam

[2015] NSWDC 16

District Court

New South Wales

Medium Neutral Citation:	Inspector McCarthy (nee Shaw) v Siva Kumaran Mathiaparanam [2015] NSWDC 16
Hearing dates:	05/08/2015, 07-08/08/2015, 11-14/08/2014, 18-19/08/2014, 29/09/2014, 13-14/11/2014
Decision date:	05 February 2015
Jurisdiction:	Criminal
Before:	Kearns, DCJ
Decision:	I find the defendant guilty as charged and he is convicted accordingly.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - accident in restaurant – burns injuries to waitress – same facts as in Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd – defendant director of company – whether under s 26 – whether defendant as director taken to have contravened s 8
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Principal judgment
Parties:	Inspector Sandra McCarthy (nee Shaw) (WorkCover Authority of New South Wales) (Prosecutor) Siva Kumaran Mathiaparanam (Defendant)
Representation:	Counsel: Mr C Magee, instructed by DLA Piper Australia, appeared for the prosecutor Mr D O’Neil, instructed by Gnana-Karan Solicitors, appeared for the defendant
File Number(s):	12/163807

Judgment

1. The defendant is charged that being a director of a corporation, Siva & Jeya Pty Ltd, by operation of s 26(1) of the Occupational Health and Safety Act 2000, he is taken to have contravened s 8(1) in that the company being an employer failed by its acts or omissions to ensure the persons in its employ and, in particular, Anisha Shrestha, were not exposed to risks to their health, safety and welfare at work.

2. The particulars of the company’s failures are set out in Annexure A to the summons. They are the same particulars as are alleged against the company in the prosecution against it.

3. Section 26(1) of the Act provided,

If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a)   he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b)   he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

4. For reasons just published in the proceedings against the company, I have found that the company contravened s 8 of the Act. The defendant was a director of the company. For reasons just published in the proceedings against the company, the defendant has failed to satisfy me that he used all due diligence to prevent the contravention by the company. Accordingly, he has failed to satisfy s 26(1)(b). Section 26(1)(a) does not arise.

5. For these reasons, I find the defendant guilty as charged and he is convicted accordingly.

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Decision last updated: 26 February 2015