Citation: SafeWork NSW v Civil 1 Pty Ltd (No 2) [2025] NSWDC 237
Court: District Court of New South Wales
Date: 27 June 2025
Judge: Scotting DCJ
Background
The offender, a demolition contractor, was the principal contractor responsible for demolishing nine commercial buildings in Gosford. On 20 August 2020, strong winds toppled approximately 60 metres of scaffolding onto Mann Street, injuring a bystander and damaging vehicles. A SafeWork NSW inspector attended the site that day and issued a prohibition notice directing that all demolition work within nine metres of the Mann Street boundary cease until adequate hoarding was in place and an inspector was satisfied the risk had been remedied.
Six days later, on 26 August 2020, the same inspector observed two excavators operating within the prohibited zone from the SafeWork office across the street. One excavator was using a hammer attachment to break up concrete near the footpath while pedestrians were present on Mann Street. No control measures had been implemented and no contact had been made with the inspector to confirm compliance with the prohibition notice.
The contractor was prosecuted and convicted after a trial of an offence under section 197 of the Work Health and Safety Act 2011, which concerns failure to comply with a prohibition notice. A separate set of more serious charges under section 32 of the same Act was defended successfully. This judgment deals with the sentencing for the section 197 conviction.
Legal Issues
- What was the appropriate sentence for the section 197 offence of failing to comply with a prohibition notice, having regard to objective seriousness and relevant sentencing principles?
- What weight should be given to the offender's remorse, cooperation, rehabilitation prospects, and lack of prior convictions as mitigating factors?
- How should costs be allocated given the mixed outcome at trial, including the offender's success on the section 32 charges?
Decision
Objective seriousness: Scotting DCJ assessed the offence as carrying some objective gravity. The risk to pedestrians and workers from flying debris was real, the breach occurred when the site supervisor was fully aware of the prohibition notice and its purpose, and the required control measures were simple, convenient, and already identified in the site's own safety documents. The Court noted that the breach took place in close proximity to the SafeWork office and inferred it was carried out for the offender's convenience. Although there was no evidence that any individual was actually exposed to a risk of serious injury or death during the breach, the judgment made clear this was not treated as a mitigating circumstance.
Mitigating factors: The Court accepted several factors in the offender's favour. The offender had no prior work health and safety convictions, expressed remorse through its director's affidavit, had cooperated with SafeWork NSW during the demolition, and took corrective steps promptly by installing Unimesh on the perimeter fencing on 28 August 2020. The presence of a safety management plan and related safety documents on site was also noted.
General deterrence: The Court emphasised that general deterrence carries significant weight in work health and safety sentencing. A substantial fine remained warranted despite the mitigating factors. The offender did not claim any limited capacity to pay. The Court imposed a fine of $90,000, against a maximum penalty of $588,540.
Costs: The Court ordered the offender to pay the prosecutor's costs of the proceedings relating to the section 197 offence, while the offender was entitled to its costs on the section 32 charges. Scotting DCJ recorded observations about how the case was conducted, noting that the section 32 charges dominated both preparation and hearing time, that large portions of the prosecutor's case were unsustainable in light of agreed facts, and that the prosecutor persisted with arguments on issues that were unlikely to succeed. These observations were made to assist any costs assessor if the parties could not agree on a proportional costs order.
Orders Made
- The offender, Civil 1 Pty Ltd, was convicted and fined $90,000.
- The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
Key Takeaways
- Under section 197 of the Work Health and Safety Act 2011, breaching a prohibition notice constitutes a criminal offence carrying a maximum fine of $588,540 (5,770 penalty units) for a corporation.
- General deterrence carries substantial weight in work health and safety sentencing, and a significant fine may remain appropriate even where the offender demonstrates remorse, cooperates with regulators, and has no prior convictions.
- Where required control measures are straightforward, well-known to the offender, and already documented in the offender's own safety plans, this increases the objective seriousness of any breach.
- The District Court treated the inference that work was performed in breach of a prohibition notice for the offender's own convenience as an aggravating consideration, notwithstanding that no individual was proven to have been exposed to serious injury.
- In mixed-outcome prosecutions, costs may be apportioned between parties; the sentencing court's observations about how the case was conducted can form a relevant consideration for a costs assessor.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 32, 197
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Fines Act 1996 (NSW), s 122(2)
Cases:
- SafeWork NSW v Civil 1 Pty Ltd [2025] NSWDC 82 (verdict judgment)
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Thangavelautham [2016] NSWCCA 141