Citation: [2026] NSWDC 90
Court: NSW District Court (Criminal jurisdiction)
Date: 8 April 2026
Judge(s): Russell SC DCJ
Background
This decision arises from a disputed facts hearing in four related workplace health and safety prosecutions brought by SafeWork NSW. The defendants — two corporate entities and an individual officer — had each pleaded guilty on 24 October 2024 to offences under the Work Health and Safety Act 2011 (NSW) (WHS Act). The purpose of the hearing was to establish the factual basis upon which the defendants would later be sentenced.
The first corporate defendant, SMB Australia Car Transport Pty Ltd ("SMB Transport"), conducted a car transport business from premises at Seven Hills in western Sydney. The second corporate defendant, SMB Australia Car Transport Employment Pty Ltd ("SMB Employment"), employed workers who carried out work in that business. The individual defendant, Mr Mytkowski, was an officer of SMB Employment. One of the workers employed by SMB Employment was Mr Christopher Brajbisz, who worked as an allocator assigning truck drivers to pick-up and delivery tasks.
The site's front boundary was secured by two large metal sliding industrial gates — each approximately 11 metres long, 1.9 metres high, and weighing 800 kilograms. Following a truck collision in June 2020, the gates' electronic motors were damaged and the gates were thereafter operated manually by workers, including Mr Brajbisz. On 24 March 2022, while Mr Brajbisz was closing the northern ("uphill") gate after a truck exited the site, the gate overran its end vertical supports and fell onto him, causing serious injuries. The central allegation was that, during the nearly two-year period between the truck collision and the incident, the defendants failed to implement adequate safety systems for manual gate operation — including ensuring that physical end stops were maintained, that regular competent inspections took place, and that a documented safe system of work was developed and implemented.
Legal Issues
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What facts were established, on a disputed basis, for the purposes of sentencing — the Court was required to resolve contested factual matters under the principles governing disputed facts hearings (sometimes known as Olbrich hearings), applying the criminal standard of proof where facts were adverse to the defendants and where facts were favourable to the defendants on the balance of probabilities.
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The nature and scope of the risk — specifically, whether the risk was properly characterised as the risk of workers suffering death or serious injury from the gate overrunning its vertical supports and falling while being manually operated.
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The content of the duty breached by each defendant:
- Whether SMB Employment (as a PCBU under s 19(1) of the WHS Act) failed to ensure, so far as reasonably practicable, the health and safety of workers by failing to develop and implement a safe system of work for manual gate operation, including installing physical end stops, conducting regular inspections, engaging a competent person, adequately implementing a safe work method statement, adequately training and supervising workers, and following up to prompt repair or replacement of the damaged gates.
- Whether SMB Transport (as a PCBU under s 19(1) of the WHS Act) breached equivalent duties in similar terms.
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Whether Mr Mytkowski (as an officer under s 27(1) of the WHS Act) failed to exercise due diligence to ensure SMB Employment complied with its s 19(1) duty, including by failing to acquire relevant safety knowledge, understand the hazards associated with manual gate operation, and ensure appropriate resources and processes were in place.
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Whether the failures exposed an individual to a risk of death or serious injury, satisfying the Category 2 offence threshold under s 32 of the WHS Act.
Decision
The judgment is principally a fact-finding exercise. The Court set out the framework for disputed facts hearings, referencing the well-established principles from R v Olbrich and subsequent appellate authority. Where the prosecution sought to rely on facts adverse to the defendants, those facts needed to be proved beyond reasonable doubt. Where the defendants relied on favourable facts, those needed to be established on the balance of probabilities. The Court also addressed issues regarding the reliability and admissibility of certain evidence, invoking provisions of the Evidence Act 1995 (NSW) — including the s 165 direction regarding unreliable evidence — and relevant case law on circumstantial reasoning and proof.
The Court found that the factual basis for sentencing included the following key matters: the gates had been operated manually for approximately 22 months between the June 2020 truck collision and the March 2022 incident; the system for manual operation was informal and undocumented; the physical end stop on the northern gate had recently broken; there was no system in place to ensure gates were regularly inspected by a competent person; and workers, including Mr Brajbisz, had not been provided with adequate training, instruction, or a documented safe work procedure for manual gate operation. The risk as pleaded — that workers could suffer death or serious injury from a gate overrunning and falling — was established.
It should be noted that certain particulars originally pleaded by SafeWork were not pressed, and some were informally amended during final submissions. The Court directed SafeWork to prepare an Amended Summons to reflect these changes. The judgment explicitly states that it determines the facts only; the sentencing hearing was listed separately for 12 August 2026.
Because the published text of the judgment is truncated, the full detail of the Court's findings on every contested factual issue — including the precise findings regarding Mr Mytkowski's knowledge and conduct as an officer — is not available for this summary. The findings summarised above are drawn from the portions of the judgment that are available.
Orders Made
- The Court set out the facts as found, to form the basis of the later sentencing hearing.
- The sentencing hearing was listed for 12 August 2026.
- SafeWork was directed to prepare an Amended Summons reflecting the particulars as modified during the hearing (certain particulars not pressed or informally amended).
Key Takeaways
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The District Court found that where equipment (electronically operated gates) was damaged and workers were required to operate it manually, the employer and PCBU were obligated to develop, document, and implement a safe system of work, and that allowing an informal, undocumented practice to develop over an extended period constituted a failure to meet that obligation.
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A significant element of the breach was the absence of a system for regular inspection of the gates by a competent person, with the Court holding that ad hoc visual checks by untrained workers did not constitute an adequate substitute for a structured inspection regime.
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Under s 27 of the WHS Act, officers bear an independent duty of due diligence that extends to acquiring relevant safety knowledge, understanding operational hazards, and ensuring the PCBU has appropriate resources and processes, rather than merely delegating responsibilities and disengaging from safety oversight.
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Even after a guilty plea, the factual basis for sentencing may be extensively contested through a disputed facts hearing, with the Court applying the Olbrich framework and differing standards of proof depending on whether the disputed facts were adverse to or favourable to the defendant.
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In narrowing the scope of the prosecution, SafeWork withdrew or amended several particulars during final submissions, and the Court required formal amendment of the charging documents to reflect the revised case as ultimately pressed.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 21, 27, 32
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 4, 165
Key Cases:
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
- Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Strbak v The Queen [2020] HCA 10
- Alameddine v R [2020] NSWCCA 232
- Cowling v R [2015] NSWCCA 213
- Chiang v R [2016] NSWCCA 45
- SafeWork NSW v Whitmarsh (No.3) [2025]