ydblogo
D A T A B A S E
yhologo

NSW OHS ACT 2000 - LIABILITY DIRECTORS AND MANAGERS

s26 Offences by corporations - liability of Directors and managers. (see s50 of old Act)

ss1 if a corporation by act or omission, each director or manager, is deemed or taken to have contravened

  • was not in a position to influence conduct
  • exercised all due diligence

    Elements of s26

  • a corporation
  • corporation has contravened provisions of 2000 Act
  • person is a Director or concerned in the management
  • in a position to influence conduct
  • did not exercise due dligence

    Usually heard together, as is before a judge, difficult to get separate hearing

    First 3 are to be proved by prosecutor, onus on prosecutor, criminal standard. Last 2 are defences, onus on defendant. see McMartin v Newcastle Wallsend Coal Co (2004) NSWIRComm 202 see Morrison v PowerCoal (2004) NSWIRComm 297

    Defences

    Onus on defendant - to civil standard - to prove defence Cannot simply delegate.
    See State Pollution Control Commission v Kelly (1991) 5ACSR 607
    See Mansell v Daly Smith Corp (2004) NSWIRComm 399

    What is the Offence?

    deemed to have breached what - may need to bring an action under other sections.


    • Home
    		Database