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District Court 11 July 2025

SafeWork NSW v Bellabrae Homes Pty Ltd

[2025] NSWDC 252

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY COSTS

Citation: SafeWork NSW v Bellabrae Homes Pty Ltd [2025] NSWDC 252
Court: District Court of New South Wales
Date: 11 July 2025
Judge: Strathdee DCJ

Background

Bellabrae Homes Pty Ltd was the principal contractor for a residential new build at North Kellyville. The company subcontracted plumbing work to Mills & Watson Plumbing, which in turn arranged for excavation work by a subcontractor chain. An earlier excavation at the site had created an earthen wall more than 1.5 metres high along the eastern boundary, and no shoring, battering, or piling had been put in place to stabilise it.

On 9 June 2022, a team including a second-year plumbing apprentice, Mr Sloane, arrived at the site for the first time. There was no site-specific induction, toolbox talk, or safety briefing before work began. Mr Sloane entered a trench adjacent to the earthen wall to clear loose material, as was customary practice. At around 8.30am, the earthen wall collapsed and engulfed him.

Mr Sloane survived but suffered significant physical injuries. SafeWork NSW prosecuted Bellabrae under the Work Health and Safety Act 2011 (NSW) for failing, as a person conducting a business or undertaking (PCBU), to ensure so far as reasonably practicable the safety of workers at the site, exposing them to a risk of death or serious injury.

  • Whether Bellabrae, as PCBU and principal contractor, breached its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), constituting a Category 2 offence under s 32
  • The appropriate penalty, having regard to the objective seriousness of the offence, the maximum penalty, and the various mitigating and aggravating factors
  • Whether a 25% discount for an early guilty plea was warranted
  • Whether an adverse publicity order should be made under s 236 of the WHS Act

Decision

Bellabrae pleaded guilty to a Category 2 offence under s 32 of the WHS Act, which carries a maximum fine of $1,500,000 for a corporation. The District Court assessed the objective seriousness of the offence. The risk of collapse from an unsupported earthen wall of significant height was foreseeable and well-known in the construction industry. Bellabrae had not instructed Excon to batter, shore, or pile the earthen face when it was first excavated, and no controls for working adjacent to it were implemented or enforced when the plumbing crew arrived.

Several aggravating features were identified. Workers attending the site for the first time received no induction or safety briefing. There was no site-specific safe work method statement for the excavation work. The earthen wall, which SafeWork NSW's attending inspector measured at up to 2.5 metres and near vertical with visible slumping, posed an obvious and serious hazard. Bellabrae had received architectural plans noting the need for daily inspection and management of disturbed areas, yet these obligations were not translated into on-site controls.

In mitigation, the court accepted that Bellabrae had existing workplace safety systems, even though they were not enforced on this occasion. The sole director was found to be of good character with a history of charitable contributions to the community. Bellabrae cooperated with the SafeWork NSW investigation, demonstrated genuine remorse, accepted responsibility, and entered an early guilty plea. The court found strong prospects of rehabilitation and noted that the company was unlikely to reoffend. An appropriate fine before discount was set at $300,000, reduced by 25% for the utilitarian value of the early plea in accordance with the principles in R v Thomson; R v Houlton, producing a final fine of $225,000.

The court also made an adverse publicity order under s 236 of the WHS Act, directing Bellabrae to publish a notice in Master Builder Magazine. Bellabrae did not oppose this order.

Orders Made

  • Bellabrae Homes Pty Ltd convicted of the offence
  • Fine of $225,000 imposed (being $300,000 reduced by 25% for the early guilty plea)
  • Adverse publicity order made under s 236 of the WHS Act, in the form of Annexure A to the affidavit of Natalie Martin affirmed 23 April 2025, to be published in Master Builder Magazine in either edition 3 or 4 of 2025
  • SafeWork NSW to receive a moiety (50%) of the fine
  • Bellabrae to pay the prosecutor's costs as agreed or assessed

Key Takeaways

  • A principal contractor's duty as PCBU under s 19(1) of the WHS Act extended to ensuring that workers from its subcontractors' chains were not exposed to foreseeable risks at the site, including the risk of an unsupported earthen wall collapsing into a trench.
  • Bellabrae had safety policies in place, but the District Court treated the failure to enforce those policies on the day as a significant factor in assessing objective seriousness, not a complete answer to liability.
  • Under the sentencing framework applying to WHS Act offences, the maximum penalty serves as a reference point and the court assessed the $300,000 base fine as proportionate to a Category 2 offence that was serious, though not at the highest end of the scale.
  • An early guilty plea attracted a 25% discount, consistent with the approach in R v Thomson; R v Houlton and the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k) and 22.
  • Adverse publicity orders under s 236 of the WHS Act remain a standard sentencing tool in WHS prosecutions, with publication directed at industry-specific outlets to maximise deterrent effect within the relevant trade.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 8, 16, 19(1), 31, 32, 236
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
- R v Cage [2006] NSWCCA 304
- R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
- R v Miria [2009] NSWCCA 68
- R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- WorkCover Authority of NSW v