Citation: SafeWork NSW v Aria Carpentry and Construction Pty Ltd [2025] NSWDC 301
Court: District Court of New South Wales
Date: 8 August 2025
Judge: Strathdee DCJ
Background
Aria Carpentry and Construction Pty Ltd is a Revesby-based company providing carpentry and building services. In March 2022, Aria was engaged as a subcontractor by principal contractor Delta Construction Group Pty Ltd to carry out roof framing and decorative feature works at a residential construction site in Belmore, NSW.
On 31 March 2022, Aria's foreman, an independent contractor engaged by Aria, was working from a scaffold at the site when a plank dislodged beneath him. He fell through a gap between the scaffold and the building, dropping a total of approximately 7.2 metres in three stages. He sustained serious injuries including a scalp laceration and fractures to his ribs and spinal vertebrae. An apprentice carpenter employed by Aria had been standing on the same plank earlier that morning.
SafeWork NSW prosecuted Aria under s 32 of the Work Health and Safety Act 2011 (NSW) for failing to comply with its primary duty under s 19(1) of that Act. The prosecution alleged that Aria's failure exposed its workers to a risk of death or serious injury.
Legal Issues
- Whether Aria failed to comply with its health and safety duty under s 19(1) of the WHS Act by not ensuring the safety of workers at the site
- How to assess the objective seriousness of the offence for sentencing purposes
- What fine was appropriate, having regard to Aria's financial capacity, any mitigating factors, and the utility of an early guilty plea
- Whether a discretionary reduction under s 6 of the Fines Act 1996 (NSW) was warranted given Aria's financial circumstances
- Whether an Adverse Publicity Order under s 236 of the WHS Act should be made, and in what form
Decision
Aria pleaded guilty to the charge. The court found that the scaffolding at the site was non-compliant with Australian Standard AS/NZS 1576.1:2019, with multiple defects including missing planks, handrails, kick boards, ties and cross bracing, gaps exceeding safe limits, and foundations undermined by wet weather. Unauthorised alterations had also been made to the scaffold at some point, the source of which remained unknown.
The court found that Aria's safe work method statement (SWMS) for the carpentry work was generic and not site-specific. It failed to include controls against using non-compliant scaffolding, did not require a handover certificate from the licensed scaffolder, and did not address the specific task of building the chamfered roof feature on the exterior of the building. Aria also lacked any system for notifying SafeWork NSW of notifiable incidents. The regulator was informed on the day by NSW Police, not by Aria.
In assessing the appropriate penalty, the court identified an initial fine of $200,000 before discounts. That figure was then reduced by 25% to reflect the utility of the early guilty plea, producing a figure of $150,000. The court then exercised its discretion under s 6 of the Fines Act 1996 (NSW) to apply a further 10% reduction, having regard to Aria's capacity to pay, resulting in a final fine of $135,000.
On the Adverse Publicity Order, Aria did not oppose the making of an order but contested the proposed wording. Aria submitted that the prosecutor's draft failed to reflect the involvement of other parties in the scaffolding's construction and maintenance, and omitted reference to the significant remedial steps Aria had taken after the incident. The court acknowledged those concerns but declined to allow them to counterbalance the making of an order in the form the court considered appropriate. The order was directed to be published in two consecutive editions of the Master Builders Association Magazine on or before 30 November 2025.
Orders Made
- Aria Carpentry and Construction Pty Ltd is convicted of the offence
- A fine of $135,000 is imposed (reduced from a starting point of $200,000 by 25% for the early plea, then by a further 10% under s 6 of the Fines Act 1996)
- Pursuant to s 122(2) of the Fines Act 1996, a moiety of 50% of the fine is payable to the prosecutor
- An Adverse Publicity Order in the form of Annexure A is directed, to be published on or before 30 November 2025, or the first edition after that date, in two consecutive editions of the Master Builders Association Magazine
- Aria to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- A conviction under s 32 of the WHS Act was recorded where a subcontractor's workers were exposed to a risk of death or serious injury arising from the use of non-compliant scaffolding, despite the scaffolding having been erected by a separate party
- The District Court held that a generic, non-site-specific SWMS that did not address the particular task being performed, and did not prohibit use of non-compliant scaffolding, was insufficient to satisfy the duty under s 19(1) of the WHS Act
- Under s 6 of the Fines Act 1996, the court exercised its discretion to reduce the fine by 10% to reflect the defendant's financial capacity, with the onus on the defendant to satisfy the court on the balance of probabilities as to its current financial circumstances
- An Adverse Publicity Order under s 236 of the WHS Act was made notwithstanding the defendant's concerns about reputational impact on a small business that relies on referrals and repeat work; those concerns did not outweigh the basis for making the order
- Where a defendant fails to notify a regulator of a notifiable incident, this is a relevant consideration in sentencing under the WHS Act framework
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 7, 8, 19(1), 31, 32, 236
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
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
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Ferguson v Nelmac Pty Ltd (1999) 92 IR 188
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153
- Jahandideh v R [2014] NSWCCA 178
- Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310; [2004] NSWIRComm 353
- 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 [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