SafeWork NSW v 465 Leichhardt Pty Ltd - [2025] NSWIC 5

Industrial Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v 465 Leichhardt Pty Ltd [2025] NSWIC 5
Hearing dates: 29 May 2025
Date of orders: 02 July 2025
Decision date: 02 July 2025
Before: Taylor J, President
Decision:
(1) I impose a fine on 465 Leichhardt Pty Ltd of $180,000.
(2) 465 Leichhardt Pty Ltd is to pay the prosecutor’s costs of the proceedings in the amount of $42,762.77 as agreed.
(3) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Low to mid-range of objective seriousness

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 23, 30E
Fines Act 1996 (NSW), s 122
Work Health and Safety Act 2011 (NSW), ss 20, 32

Cases Cited:
Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Cartwright (1989) 17 NSWLR 243
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Ceerose Pty Ltd [2017] NSWDC 313
SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360
SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4
SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277

Texts Cited:
Australian Standard AS 2601-2001 “The Demolition of Structures”
SafeWork NSW, “Code of Practice: Demolition Work” (August 2019)
SafeWork NSW, “Code of Practice: Managing the Work Environment and Facilities” (August 2019)
SafeWork NSW, “Industrial gate fatality – 12 June 2020” (Incident information release, 27 August 2020)
WorkSafe Western Australia, Safety Alert 08/2018 (August 2018)

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
465 Leichhardt Pty Ltd (Defendant)
Representation:
Counsel:
M Moir (Prosecutor)
B Clark (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)

File Number(s): 2024/320298
Publication restriction: Pursuant to the order of Taylor J, President made on 29 May 2025 and s 164A of the Industrial Relations Act 1996 (NSW), there is to be no publication of the names and other identifying details of the four victims in these proceedings.

JUDGMENT

On 2 September 2022 a woman and her three young children were walking home along a footpath on Parramatta Road, Leichardt when a 200-kilogram sliding gate (Gate) was opened, overran its supports and fell onto them, causing them to be injured.
SafeWork NSW as the prosecutor instituted proceedings against the company that had arranged for the Gate to be installed, 465 Leichhardt Pty Ltd, the defendant in these proceedings. The defendant subsequently entered a plea of guilty to a Category 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWIC 5
Decision Date: 02 July 2025

CaseChat Overview and Summary

In SafeWork NSW v 465 Leichhardt Pty Ltd, the plaintiff, SafeWork NSW, brought proceedings against the defendant, 465 Leichhardt Pty Ltd, following an incident in which a gate overran its supports and fell, causing harm. The dispute pertained to breaches of work health and safety laws, specifically in relation to the design and installation of the gate. The case was heard in the Local Court of New South Wales.

The central legal issues before the court were whether the defendant had contravened specific work health and safety regulations, and if so, what appropriate penalty should be imposed. The court had to consider the objective seriousness of the contravention, the circumstances leading to the incident, and any mitigating factors. The primary focus was on whether the fault lay with the design and installation of the gate, which lacked an adequate end stop.

In its reasoning, the court found that the gate's faulty design and installation directly contributed to the incident, leading to a contravention of the relevant work health and safety regulations. The court assessed the objective seriousness of the offence, determining it to be in the low to mid-range. The court took into account the absence of an adequate end stop as a critical factor in the incident. The fine imposed reflected the seriousness of the breach, while also considering the financial capacity of the defendant and the need for deterrence. The court ordered that 465 Leichhardt Pty Ltd pay a fine of $180,000, along with the prosecutor’s costs of the proceedings. Additionally, 50% of the fine was to be paid to the prosecutor, as mandated by section 122(2) of the Fines Act 1996 (NSW).

Orders

Orders of the court

(1) I impose a fine on 465 Leichhardt Pty Ltd of $180,000.

(2) 465 Leichhardt Pty Ltd is to pay the prosecutor’s costs of the proceedings in the amount of $42,762.77 as agreed.

(3) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v 465 Leichhardt Pty Ltd [2025] NSWIC 5
Hearing dates:	29 May 2025
Date of orders:	02 July 2025
Decision date:	02 July 2025
Before:	Taylor J, President
Decision:	(1) I impose a fine on 465 Leichhardt Pty Ltd of $180,000. (2) 465 Leichhardt Pty Ltd is to pay the prosecutor’s costs of the proceedings in the amount of $42,762.77 as agreed. (3) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
Catchwords:	CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Low to mid-range of objective seriousness
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 23, 30E Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 20, 32
Cases Cited:	Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Cartwright (1989) 17 NSWLR 243 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Ceerose Pty Ltd [2017] NSWDC 313 SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360 SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4 SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274 SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
Texts Cited:	Australian Standard AS 2601-2001 “The Demolition of Structures” SafeWork NSW, “Code of Practice: Demolition Work” (August 2019) SafeWork NSW, “Code of Practice: Managing the Work Environment and Facilities” (August 2019) SafeWork NSW, “Industrial gate fatality – 12 June 2020” (Incident information release, 27 August 2020) WorkSafe Western Australia, Safety Alert 08/2018 (August 2018)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) 465 Leichhardt Pty Ltd (Defendant)
Representation:	Counsel: M Moir (Prosecutor) B Clark (Defendant) Solicitors: SafeWork NSW (Prosecutor)
File Number(s):	2024/320298
Publication restriction:	Pursuant to the order of Taylor J, President made on 29 May 2025 and s 164A of the Industrial Relations Act 1996 (NSW), there is to be no publication of the names and other identifying details of the four victims in these proceedings.