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District Court 23 July 2025

SafeWork NSW v AWB Contractors Pty Ltd (In Liquidation)

[2025] NSWDC 273

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v AWB Contractors Pty Ltd (In Liquidation) [2025] NSWDC 273
Court: District Court of New South Wales
Date: 23 July 2025
Judge: Russell SC DCJ

Background

AWB Contractors Pty Ltd (now in liquidation) was a marine and salvage contractor engaged to recover a sunken yacht named "Crazy Train" from Rozelle Bay Maritime Service Centre on 27 January 2021. During the crane lift, the operation failed and the yacht's mast struck and killed a worker, Mr Max Haywood. A number of other workers were also present and exposed to the same risk.

SafeWork NSW prosecuted AWB for failing to comply with its duty as a person conducting a business or undertaking under s 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury, contrary to s 32 of that Act.

AWB pleaded guilty to the charge. The matter proceeded to sentencing, with the court also receiving victim impact statements from Mr Haywood's widow and daughter.

  • The appropriate penalty for a Category 2 WHS offence under s 32, having regard to objective seriousness and the full range of relevant sentencing factors
  • The weight to be given to mitigating factors, including the guilty plea, the company's liquidation, and its capacity to pay
  • Whether a reduction in fine should be applied to reflect the plea of guilty, and the quantum of that reduction
  • The appropriate order as to prosecution costs

Decision

The court identified multiple failures by AWB that together created the conditions for the fatal incident. These included: the failure to conduct any adequate risk assessment before commencing the lift; the failure to develop and enforce a Safe Work Method Statement; allowing workers to use a crane in a manner that exceeded its safe working limits; permitting the use of the yacht's mast as a lifting attachment point (a fixture not designed to bear the vessel's weight); and failing to provide adequate training, instruction, and supervision. Personal protective equipment was also not in use.

His Honour assessed the objective seriousness of the offending as significant. The risk was foreseeable and the failures were numerous and systemic rather than isolated. The court noted that AWB had created multiple risks with little or no regard for the safety of its employees, and that the legal obligation under the WHS Act is to eliminate or minimise risk, not simply accept that an industry is inherently dangerous.

The court took into account the victim impact statements from Mr Haywood's widow and daughter, both of whom described ongoing and profound grief, as well as the lasting disruption to their lives. His Honour observed that the harm to the family was irreparable and gave this weight within the confines of the applicable sentencing law.

The court set a base fine of $900,000 (out of a maximum of $1,766,130), then reduced it by 15 percent to reflect the guilty plea, resulting in a final fine of $765,000. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50 percent of the fine is to be paid to the prosecutor. AWB was also ordered to pay the prosecutor's costs.

Orders Made

  • AWB Contractors Pty Ltd (In Liquidation) convicted on 3 July 2025
  • AWB Contractors Pty Ltd (In Liquidation) ordered to pay a fine of $765,000 (being $900,000 reduced by 15% for the guilty plea)
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor
  • AWB Contractors Pty Ltd (In Liquidation) ordered to pay the prosecutor's costs

Key Takeaways

  • A guilty plea resulted in a 15 percent reduction from the assessed base fine in this WHS prosecution, with the District Court treating that discount as reflecting the utilitarian value of the plea in the circumstances.
  • Multiple and systemic failures across risk assessment, safe work method statements, equipment selection, lifting practices, training, supervision, and PPE were identified as the substance of the breach, rather than any single point of failure.
  • Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half of the fine be paid directly to the prosecuting authority, SafeWork NSW, a mechanism available in WHS prosecutions in New South Wales.
  • The fact that the company was in liquidation did not prevent conviction or the imposition of a substantial fine, though capacity to pay is a recognised sentencing consideration in this jurisdiction.
  • Where a business undertakes hazardous lifting operations in a marine environment, the WHS Act requires affirmative steps to eliminate or minimise risk; characterising an industry as inherently dangerous does not displace that obligation.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
- Corporations Act 2001 (Cth), s 588G

Cases
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- SafeWork NSW v Whitmarsh (No. 3) [2025] NSWDC 150
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432