Citation: [2026] NSWDC 100
Court: District Court of New South Wales
Date: 17 April 2026
Judge(s): Scotting DCJ
Background
The NSW Resources Regulator prosecuted Young Mining Company Pty Ltd (YMC), the operator of an open surface magnesite mine near Young, NSW, for failing to comply with a notice issued under s 155 of the Work Health and Safety Act 2011. The notice required YMC to provide information and produce documents relating to an August 2021 incident in which a worker fell into an unguarded chute at the mine's processing plant and was partially buried, suffering injury.
The s 155 notice (No 220311JQ1) was itself a replacement of an earlier notice, issued after YMC requested more time to respond. The Regulator granted an additional four weeks, setting a final compliance date of 7 April 2022. YMC's financial controller, Mr Pandey, submitted a response on that date (clarified on 14 April 2022), but the Regulator alleged the response was materially incomplete.
YMC pleaded not guilty. It accepted it had not answered every requirement but argued that it had a reasonable excuse for any shortfall, pointing to staff shortages, the unavailability of key personnel (including the managing director and a former quarry manager), and the burden of simultaneously responding to numerous other regulatory notices.
Legal Issues
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Did YMC fail to comply with the requirements of the s 155 Notice? Specifically, did the response provided on 7 April 2022 (and clarified on 14 April 2022) satisfy all requirements to give information within YMC's knowledge and produce documents in its possession?
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Did YMC have a "reasonable excuse" for any non-compliance? This required the Court to assess whether circumstances such as limited staff, the managing director's absence overseas, the financial controller's COVID-19 isolation, the former quarry manager's unavailability, and competing regulatory obligations constituted a reasonable excuse within the meaning of s 155(5) of the Act.
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What is the relevant temporal framework for assessing reasonable excuse? The parties agreed, following Deemah Stone Pty Ltd v SafeWork NSW [2026] NSWCCA 34, that the offence was a "once and for all" offence (not a continuing one), meaning only events occurring before the compliance date of 7 April 2022 could ground the excuse, unless later events shed light on the earlier period.
Decision
Note: The published text available for this summary is truncated and does not include the Court's final findings or reasoning on each issue. What follows is drawn from the framework and analysis set out in the available portion of the judgment. Readers should consult the full decision for the Court's ultimate conclusions.
On the first issue, the Court closely examined YMC's response against each individual requirement of the Notice. The prosecution bore the onus of proving beyond reasonable doubt that YMC failed to provide information within its knowledge or documents in its possession. The defence accepted that some requirements were not fully answered but contended that partial compliance was relevant context.
On the question of reasonable excuse, the Court noted that the burden of proof lay with YMC, consistent with general principles regarding statutory excuses (citing Taikato v The Queen (1996) 186 CLR 454 and Iskandar v The Queen [2013] NSWCCA 256). The Court considered the chronology in detail: YMC had been on notice of the information requests since August 2021, had already received one extension, and the Regulator had characterised the material sought as fundamental WHS records that should have been readily accessible under existing systems.
The Court weighed the competing demands on YMC (multiple concurrent regulatory notices, ORR compliance obligations, and staffing difficulties) against the Regulator's position that the information sought was not onerous and that YMC had had months to prepare. The Court also considered Mr Jhunjhunwala's overseas travel, his health issues, and Mr Pandey's COVID-19 isolation in the days immediately before the compliance deadline.
Because the full reasoning and verdict are not available in the truncated text, practitioners should review the complete judgment for the Court's ultimate determination on guilt and, if applicable, any sentencing remarks.
Orders Made
- The orders made by the Court are not included in the available portion of the judgment. Practitioners should consult the full published decision on NSW Caselaw for the final orders.
Key Takeaways
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Under s 155(5) of the Work Health and Safety Act 2011, the offence of failing to comply with a notice crystallises on the date specified for compliance, consistent with the principle established in Deemah Stone. A late but otherwise complete response does not cure the offence, though it may be relevant to mitigation if guilt is established.
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The District Court assessed the reasonableness of extension requests by reference to specific, demonstrable obstacles and realistic proposed timelines, finding that requests citing low urgency based on the injured worker's recovery were not persuasive.
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Where competing regulatory obligations were relied upon as a basis for a reasonable excuse defence, the mere existence of concurrent notices from the Regulator and the EPA was insufficient. Contemporaneous evidence demonstrating how resource constraints actually prevented compliance was required.
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Consistent with established authority in Taikato v The Queen, the burden of proving "reasonable excuse" falls on the defendant. No witnesses were called in this case and the matter proceeded entirely on tendered documents, which limited the strength of the reasonable excuse defence.
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Sufficient weight was placed on the nature of the documents sought under the s 155 notice, characterised as fundamental WHS information and business records that should have formed part of existing record-keeping systems. The Court's reasoning indicated that an operator's inability to quickly retrieve such records undermined any claim that compliance with the notice was onerous.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 32, 155(5)
- Evidence Act 1995 (NSW)
- Mining Act 1992 (NSW)
Cases:
- Deemah Stone Pty Ltd v SafeWork NSW [2026] NSWCCA 34
- Iskandar v The Queen [2013] NSWCCA 256
- Taikato v The Queen (1996) 186 CLR 454