Citation: [2026] NSWDC 111
Court: District Court of New South Wales
Date: 30 April 2026
Judge(s): Strathdee DCJ
Background
Acon Projects Pty Ltd ("Acon") was the principal contractor for the construction of a two-storey residence and granny flat at a site in Carlton, NSW. Adrian Conditsis was the sole director of the company. Acon engaged two tilers, Mr Ehsani and Mr Zahidi, to carry out tiling work on the site over several days in June and July 2021.
On 1 July 2021, Mr Zahidi fell three metres from the first floor over an unprotected hallway edge to the ground below. He suffered catastrophic injuries including a traumatic brain injury, bilateral subdural haemorrhage, depressed skull fractures, multiple rib fractures, a fractured scapula, and a pneumothorax. He was in a coma for 21 days.
SafeWork NSW prosecuted both Acon and Mr Conditsis. Acon pleaded guilty to a Category 1 offence under sections 19(1) and 31 of the Work Health and Safety Act 2011 (NSW) (gross negligence exposing individuals to a risk of death or serious injury). Mr Conditsis pleaded guilty to a Category 2 offence under sections 27(1) and 32 as an officer who failed to exercise due diligence to ensure the company's compliance with its health and safety duty. Acon subsequently entered administration in January 2026 and was not represented at the sentencing hearing. Mr Conditsis was self-represented.
Legal Issues
- What was the objective seriousness of Acon's Category 1 offence under s 31 of the WHS Act (conduct with gross negligence exposing workers to risk of death or serious injury)?
- What was the objective seriousness of Mr Conditsis's Category 2 officer's duty offence under ss 27(1) and 32 of the WHS Act?
- What factual findings should the Court make on contested paragraphs in the prosecution's Amended Statement of Facts, including whether Mr Conditsis conducted site inductions, discussed hazards, verified workers' construction induction cards, and was aware of the unprotected edge?
- What were the appropriate penalties, taking into account the maximum penalties (up to $3,565,158 for Acon and up to $356,721 for Mr Conditsis), the need for general deterrence, and Mr Conditsis's capacity to pay?
- Whether a costs order should be made in favour of the prosecutor.
Decision
The Court found that the offending represented a serious breach of both Acon's and Mr Conditsis's health and safety duties. The likelihood of the risk materialising was high, given the unprotected edge at the site and the absence of control measures. The Court emphasised that the penalty should reflect both objective seriousness and the need for general deterrence.
On the disputed facts, the Court accepted the evidence of both Mr Zahidi and Mr Ehsani. Strathdee DCJ found Mr Zahidi to be "an extremely honest witness" and accepted his evidence in full, though Mr Zahidi was excused from further testimony after becoming distressed. Mr Ehsani was found to be "an open and honest witness." Both workers testified that Mr Conditsis did not conduct a site induction or toolbox talk, did not discuss safety hazards, did not ask to see their white cards or tiling licences, and did not provide any warnings or instructions about the unprotected edge on the first floor. Mr Ehsani's evidence was that Mr Conditsis's focus was on how soon the job could be finished rather than on safety.
The Court noted that Acon had operated only a verbal, ad hoc, and informal system of work regarding hazards, which was not always implemented. There was no edge protection installed on the exposed hallway edge, no supervision or training on hazards provided to workers, and no processes for incident and hazard reporting. Mr Conditsis had shown the workers the areas where tiling work was to be done, including the upstairs bathrooms, and had visited the upper level on more than one occasion, yet took no steps to address the fall risk.
Because the judgment text available is truncated, the final quantum of the fines imposed and the precise terms of any costs order are not fully captured here. However, the Court's reasoning clearly framed both offences as objectively serious, with the maximum penalties for Acon being $3,565,158 and for Mr Conditsis being $356,721. Mr Conditsis's capacity to pay was a live issue, addressed through his affidavit evidence.
Orders Made
- Acon Projects Pty Ltd was convicted of the Category 1 offence under ss 19(1) and 31 of the WHS Act. (The precise fine is not captured in the truncated judgment text.)
- Mr Conditsis was convicted of the Category 2 offence under ss 27(1) and 32 of the WHS Act. (The precise fine is not captured in the truncated judgment text.)
- The alternative charge against Acon under s 32 was not pursued following the guilty plea to the s 31 offence. The charge of recklessness was deleted by amended summons, with the Category 1 offence proceeding on the basis of gross negligence alone.
- The question of prosecutor's costs was considered, with reference to capacity to pay principles.
Key Takeaways
- Operating only a verbal, informal, and ad hoc system for communicating workplace hazards, without documented inductions, toolbox talks, or hazard reporting processes, constituted a serious failure to comply with primary duties under the WHS Act.
- The District Court found that the failure to install edge protection on an exposed hallway at height, combined with the absence of any control measures, created a high likelihood of the risk of serious injury or death materialising.
- Under s 27(1) of the WHS Act, a sole director who personally attended a construction site, directed workers to areas with known fall hazards, and failed to address those hazards or verify workers' qualifications was held to have breached the officer's due diligence duty.
- The prosecution illustrates the operation of Category 1 (gross negligence) and Category 2 offences in tandem, with the corporate PCBU facing the more serious charge and the individual officer facing the officer's duty charge.
- General deterrence was treated as a significant sentencing consideration in both matters, reflecting the need to promote compliance with work health and safety obligations across the construction industry.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122
Key Cases:
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399
- Latoudis v Casey (1990) 170 CLR 534
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100
- McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310