Citation: SafeWork NSW v Custom Bus Group Pty Ltd [2025] NSWDC 365
Court: District Court of New South Wales
Date: 17 September 2025
Judge: Scotting DCJ
Background
Custom Bus Group Pty Ltd operated a bus manufacturing facility at St Marys, New South Wales, where it designed, manufactured, and assembled buses from raw materials. Labour hire workers were supplied to the business through a related entity, Custom Bus Support Services Pty Ltd.
One of those workers, employed as a laser machine operator, was not licensed to operate forklifts and was not required to do so as part of his role. Despite this, he regularly operated a forklift at the site, and multiple managers, supervisors, and co-workers were aware of the practice. The site's safety manager had previously told the worker he could not drive the forklift without a High-Risk Work Licence (HRW licence), but that manager left the business in early February 2022.
On 2 May 2022, the unlicensed worker again operated the forklift, transporting loose pallet items to a laser cutting machine. Several supervisors and co-workers observed him doing so without intervening. The forklift accelerated, collided with metal parts, and tipped over. The worker fell with the forklift as it landed on its side, and he died as a result of the incident.
Legal Issues
- Whether Custom Bus Group Pty Ltd failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (WHS Act), exposing it to the category 2 offence under s 33.
- The appropriate sentence, including assessment of objective seriousness, aggravating and mitigating factors, capacity to pay, and the appropriate discount for a guilty plea entered on the eve of trial.
Decision
Custom Bus Group pleaded guilty to the s 33 offence under the WHS Act, which carries a maximum fine of 5,770 penalty units (equivalent to $594,021). Scotting DCJ assessed the objective seriousness of the offence having regard to the nature and extent of the failures, the risk of death or serious injury involved, and the harm that ultimately resulted in a worker's death.
The sentencing assessment identified serious systemic failings across the business. Keys were routinely left in the forklift's ignition when it was left unattended. No licence register was maintained or accessible to workers, meaning supervisors and co-workers often did not know who held an HRW licence. The Safe Operating Procedure for forklifts was not enforced, non-forklift workers who operated the forklift did not receive relevant training or induction, and no traffic management plan existed at the site. Guidance material from SafeWork Australia and the relevant Australian Standard were both available to the company and had not been implemented.
Multiple supervisors had observed the deceased worker operating the forklift without a licence on numerous occasions in the period leading up to the incident. None took action to stop him or impose any disciplinary consequence. The company's own Workplace Health and Safety Policy, signed by its sole director, was not applied in practice.
In mitigation, the Court accepted that Custom Bus had no prior convictions, had co-operated with the SafeWork NSW investigation, had demonstrated genuine remorse through its director, and had good prospects of rehabilitation. The plea of guilty, entered on 17 June 2025 shortly before a trial listed to run 11 days from 23 June 2025, attracted a 15% discount. The company did not contend it had a reduced capacity to pay. The Court imposed a fine of $200,000 before the plea discount, reduced to $170,000 after applying the 15% reduction.
Orders Made
- Custom Bus Group Pty Ltd convicted.
- Fine of $170,000 imposed (reflecting a 15% guilty plea discount applied to a pre-discount fine of $200,000).
- Custom Bus ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed.
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine to be paid to the prosecutor (SafeWork NSW).
Key Takeaways
- A category 2 offence under s 33 of the WHS Act arises where a duty holder fails to comply with the primary duty of care under s 19(1), exposing workers to a risk of death or serious injury, and carries a maximum fine of 5,770 penalty units ($594,021 at the relevant time).
- Systemic failures, including the absence of a licence register, failure to enforce safe operating procedures, keys left in unattended plant, and supervisory inaction in the face of known contraventions, all bear on the objective seriousness of a WHS offence at sentencing.
- Where a defendant seeks a reduction in fine on the basis of limited financial capacity, it bears the evidentiary burden of establishing that reduced capacity; Custom Bus made no such submission.
- A guilty plea entered on the eve of an 11-day trial attracted only a 15% discount rather than the higher discounts typically available for early pleas, consistent with the utilitarian value analysis applied under R v Thomson & Houlton and R v Borkowski.
- Genuine remorse, co-operation with the regulator's investigation, no prior record, and post-incident remediation steps are all recognised mitigating factors under the Crimes (Sentencing Procedure) Act 1999, but they do not displace the need for a substantial penalty where a worker has died and the offence involved serious and visible systemic failings.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- The Queen v De Simoni (1981) 147 CLR 383