Citation: SafeWork NSW v Harbour City Roofing Pty Ltd (In Liquidation) [2025] NSWDC 250
Court: District Court of New South Wales
Date: 10 July 2025
Judge: Russell SC DCJ
Background
Harbour City Roofing Pty Ltd was a roofing and cladding subcontractor engaged to carry out roof and ceiling works at Hurstville Aquatic Leisure Centre in February 2021. Bermagui Constructions Pty Ltd was the principal contractor on the project, and Harbour City had in turn engaged HLH NSW Pty Ltd, a labour hire company, to provide general labourers on site.
One of those labourers was Mr Philip Spillane, who had been assigned to the site just under two weeks before the incident. He had no formal training or experience working at heights. On 9 February 2021, a roofer employed by Harbour City directed Mr Spillane to assist with replacing roof sheets on the external section of the roof.
No edge protection, harness, fall arrest system, or any other fall prevention measure was in place in the relevant area. At approximately 9am, Mr Spillane stepped onto what he believed was a covered pillar and fell more than five metres through a roof soffit onto the concrete below. He suffered fractures to both wrists requiring surgery and a dislocated elbow, spending approximately three weeks in hospital.
Legal Issues
- Whether Harbour City Roofing, as a person conducting a business or undertaking, failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers so far as reasonably practicable
- Whether that failure exposed a worker to a risk of death or serious injury, constituting a Category 1 offence under s 32 of the WHS Act
- What sentence, including fine, was appropriate having regard to objective seriousness, mitigating and aggravating factors, parity with co-offenders, and the company's status in liquidation
- Whether prosecution costs should be awarded
Decision
The court found Harbour City guilty of failing to comply with its s 19(1) duty under the WHS Act, contrary to s 32. The company had exposed Mr Spillane to a risk of death. The hearing proceeded ex parte, as Harbour City was in liquidation and the liquidator had been notified of the hearing date in accordance with a prior court order.
In assessing objective seriousness, the court found that the failures were substantial. Mr Spillane had no qualifications or experience working at heights. The risk of falling from an unprotected roof was obvious, no fall prevention system of any kind was in place, and no adequate training, instruction, or supervision had been provided. The elevated work platform that would normally have been used was unavailable that day, and rather than ceasing the roof work, a Harbour City employee directed an inexperienced labourer to assist without any protective measures.
On parity, the court compared Harbour City's culpability with that of Bermagui (the principal contractor) and HLH (the labour hire company), both of which faced separate proceedings. Harbour City was found to be the most culpable of the three. HLH had faced a lesser charge under s 33 of the WHS Act, and Bermagui, while the principal contractor, was not the direct employer or supervisor of Mr Spillane. The court treated Harbour City's greater culpability as a relevant consideration in fixing the appropriate penalty.
A fine of $600,000 was imposed. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to SafeWork NSW as prosecutor. The company was also ordered to pay prosecution costs.
Orders Made
- Harbour City Roofing Pty Ltd (In Liquidation) found guilty and convicted
- Harbour City Roofing Pty Ltd (In Liquidation) ordered to pay a fine of $600,000
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to SafeWork NSW as prosecutor
- Harbour City Roofing Pty Ltd (In Liquidation) ordered to pay the prosecutor's costs
Key Takeaways
- A roofing subcontractor that directed an inexperienced labourer with no height-work training onto an unprotected roof, without any fall prevention system, was found to have committed the most serious category of WHS offence under s 32 of the WHS Act.
- Where multiple duty holders are charged arising from the same incident, the relative culpability of each is a relevant consideration in sentencing. The party with the most direct control over the worker and the work being performed was treated as most culpable.
- Assigning a worker to a task well outside their training and experience, without adequate instruction, supervision, or protective systems, will weigh heavily on the objective seriousness of a WHS offence.
- The fact that a corporate defendant is in liquidation does not prevent proceedings from concluding or a fine being imposed. The District Court heard the matter ex parte after confirming the liquidator had been notified.
- Under s 122(2) of the Fines Act 1996 (NSW), the court has the power to direct that a portion of a WHS fine be paid to the prosecuting authority. The District Court exercised that power here, directing 50% of the $600,000 fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 32, 33, 155, 275
- Work Health and Safety Regulation 2017 (NSW), cll 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Fines Act 1996 (NSW), s 122
Cases
- Baiada Poultry v The Queen [2012] HCA 14; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- SafeWork NSW v Bermagui Constructions Pty Ltd [2024] NSWDC 604
- SafeWork NSW v HLH NSW Pty Ltd [2023] NSWDC 501
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304