Citation: SafeWork NSW v SMB Car Transport Employment Pty Ltd; SafeWork NSW v SMB Australia Car Transport Pty Ltd; SafeWork NSW v Mytkowski (No. 2) [2026] NSWDC 308
Court: District Court of New South Wales
Date: 25 August 2026
Judge: Russell SC DCJ
Background
A car transport business operated from a site in Seven Hills, NSW. One company (the employer entity) employed workers, including an allocator whose role was to assign truck drivers to pick up and deliver cars. A separate but related company (the site operator entity) conducted the transport business itself. Both companies were owned and controlled by the same sole director.
Entry and exit to the site was via two large sliding metal gates, each weighing 800 kilograms and approximately 11 metres long. In June 2020, the gates' electronic motors were damaged in a truck collision. From that point, workers manually operated the gates without any documented safe system of work, and without regular inspection by a competent person.
On 24 March 2022, the worker was manually closing the northern gate after a truck exited the site. The gate overran the end vertical supports (having recently lost its end stop) and fell onto him, causing serious injuries. He has since been assessed as having reached maximum medical improvement but continues to suffer chronic back pain, neuropathic symptoms, and significant functional limitations.
Legal Issues
- Whether the employer entity breached its primary duty of care to workers under s 19(1) of the Work Health and Safety Act 2011 (NSW)
- Whether the site operator entity breached its duty to ensure fixtures, fittings, and plant at the workplace were without risk under s 21(2) of the WHS Act
- Whether the sole director breached his officer duty under s 27(1) of the WHS Act in relation to each company's separate duty
- How to assess objective seriousness and apportion penalty across two related corporate defendants with common ownership and control
- Whether sentencing two companies under common ownership and control for separate but concurrent duties amounted to impermissible "double punishment"
- Whether a s 10 dismissal without conviction (under the Crimes (Sentencing Procedure) Act 1999) was appropriate for the director, given his unblemished record and exemplary character
- Whether the director's two offences, arising from his failure to exercise due diligence in respect of each company, should attract a totality adjustment
Decision
Issue 1: Breach of duty by the two companies
The court had already determined breach in an earlier disputed facts judgment ([2026] NSWDC 90). The employer entity failed to ensure, so far as reasonably practicable, the health and safety of its workers when operating the gates manually. The site operator entity failed to ensure that the plant at the workplace was without risk to health and safety. The court found that an informal, undocumented system for manual gate operation existed with no regime for regular inspection by a competent person, and that the end stop had broken shortly before the incident without being detected or remedied.
Issue 2: Objective seriousness and penalty for the two corporate defendants
The court assessed the offences as falling in the mid-range of seriousness. The risk of serious injury or death from an 800-kilogram gate falling on a worker was obvious. The absence of any documented inspection system and the failure to address the broken end stop were significant failings. Both companies were fined $180,000 each (reduced from a starting point of $240,000 by 25% to reflect the guilty pleas).
Issue 3: Whether sentencing two related companies amounts to double punishment
The court rejected the "double punishment" argument. Each company is a separate legal entity holding a non-delegable and non-transferable WHS duty. The court reasoned that companies cannot benefit from the separate legal entity doctrine in their commercial dealings but then disavow it when it would reduce their penalty exposure. Where two entities each independently hold the same duty and each independently fail to discharge it, each is appropriately held to account.
Issue 4: The director's liability and penalty
The director was charged with two separate officer duty offences, one in relation to each company. The court found that his failures to exercise due diligence were established. It applied a totality adjustment to avoid a crushing combined penalty. His fines were set at $15,000 (reduced from $20,000) in respect of the employer entity offence, and $45,000 (reduced from $60,000) in respect of the site operator offence, both after a 25% guilty plea discount.
Issue 5: Whether a s 10 dismissal without conviction was appropriate for the director
The court declined to dismiss the charges without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999. Although the director had an unblemished record and exemplary character, the court found that these circumstances were not extraordinary or exceptional. The court observed that most directors prosecuted for WHS Act offences present with similar antecedents and character. Applying s 10 in such circumstances would, in the court's view, undermine the objects of the WHS Act and the public interest in its enforcement.
Orders Made
Proceedings 2024/115275 (employer entity):
- SMB Australia Car Transport Employment Pty Ltd convicted
- Fine of $180,000 (reduced by 25% from $240,000 for guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs
Proceedings 2024/115347 (director, employer entity offence):
- Andrew Mytkowski convicted
- Fine of $15,000 (reduced by 25% from $20,000 for guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs
Proceedings 2024/115331 (site operator entity):
- SMB Australia Car Transport Pty Ltd convicted
- Fine of $180,000 (reduced by 25% from $240,000 for guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs
Proceedings 2024/115391 (director, site operator entity offence):
- Andrew Mytkowski convicted
- Fine of $45,000 (reduced by 25% from $60,000 for guilty plea)
- 50% of the fine to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996
- Defendant to pay the prosecutor's costs
Key Takeaways
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WHS Act duties are non-delegable and can be held concurrently by multiple legal persons. Where two separately incorporated companies each hold an independent duty and each fail to discharge it, sentencing both for their respective failures does not constitute impermissible double punishment, even where both share common ownership and control.
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Corporate defendants cannot invoke the separate legal entity doctrine selectively. The District Court held that companies which enjoy the benefits of separate legal personality in their commercial dealings cannot disavow that doctrine when it would operate to reduce their sentencing exposure.
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A s 10 dismissal without conviction under the Crimes (Sentencing Procedure) Act 1999 is not available simply because a defendant has an unblemished record and exemplary character. The court found that such circumstances must be accompanied by something extraordinary or exceptional about the case itself, and observed that similar antecedents are common among directors prosecuted under the WHS Act.
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The 25% guilty plea discount applied at first instance reflects the utilitarian value of the plea, consistent with established NSW sentencing principle.
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Informal and undocumented systems for operating potentially dangerous plant, combined with the absence of any competent-person inspection regime, were treated as significant aggravating features in assessing objective seriousness, even where the offences fell in the mid-range rather than at the highest level.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
- Work Health and Safety Act 2011 (NSW), ss 3, 14, 16, 19, 27, 32
- Occupational Health and Safety Act 2000 (NSW) , 8
Cases
- Attorney-General of New South Wales v Tho Services Ltd (In Liquidation) [2016] NSWCA 221
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- EPA v Barnes [2006] NSWCCA 246
- Inspector Bestre v Jontari Pty Ltd; Inspector Bestre v Tempo Services Pty Ltd [2007] NSWIRCom 190
- Inspector Christopher Downie v Menzies Property Services [2004] NSWIR Comm 259
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Pearce v The Queen (1998) 194 CLR 610
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- SafeWork NSW v Elgas Ltd [2021] NSWDC 101
- SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
- SafeWork NSW v SMB Car Transport Employment Pty Ltd; SafeWork NSW v SMB Australia Car Transport Pty Ltd; SafeWork NSW v Mytkowski [2026] NSWDC 90
- SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
- Salomon v A Salomon & Co Limited [1897] AC 22
- Industrial Equity Limited v Blackburn (1977) 137 CLR 567
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465