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SafeWork NSW v BI Australia Pty Ltd

SafeWork NSW v BI Australia Pty Ltd

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Case Copied 17 September 2025 33 min read

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v BI Australia Pty Ltd [2025] NSWDC 364
Hearing dates: 12 June 2025
Date of orders: 17 September 2025
Decision date: 17 September 2025
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   BI Australia Pty Ltd is found guilty.
(2)   BI Australia Pty Ltd is convicted.
(3)   I order that BI Australia Pty Ltd pay a fine of $400,000.
(4) I order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   BI Australia Pty Ltd to pay the prosecutors costs which are not to exceed $40,000.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
EXPARTE PROSECUTIONS – elements of the offence
COSTS – prosecutor’s costs

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A,
Occupational Health and Safety Act 2000 (NSW), s 8(2)
Fines Act 1996 (NSW), s 122
Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 31, 32, 46

Cases Cited:
Baida Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Director of Public Prosecutions v Vibro-Pile (Aust) [2016] VSCA 55
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Hammersley Iron Pty Ltd v Robertson (Western Australia Supreme Court, 2 October 1988, unrep)
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kirwin v The Pilbura Infrastructure Pty Ltd [2012] WASC 99
LaingO’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Board of Trustees of the Science Museum [1983] 1 WLR 1171
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434;

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] NSWDC 364
Decision Date: 17 September 2025

CaseChat Overview and Summary

In SafeWork NSW v BI Australia Pty Ltd, the matter before the court involved allegations of breaches in work health and safety laws against BI Australia Pty Ltd. SafeWork NSW prosecuted the company for failing to meet its duty under the work health and safety legislation, which resulted in a risk of death or serious injury. The court was tasked with determining whether the company had contravened the relevant provisions and, if so, what the appropriate penalties and orders should be.

The key legal issues in this case centred on the elements of the offence as outlined in the work health and safety legislation and whether BI Australia Pty Ltd had indeed breached its duty. The court had to consider the evidence presented to establish the company's liability and the appropriate penalty for the offence. Furthermore, the court was required to address the matter of costs, specifically whether the prosecutor's costs should be awarded to SafeWork NSW and, if so, the amount.

The court found BI Australia Pty Ltd guilty of the offence, concluding that the company had indeed failed in its duty under the work health and safety legislation. The judge determined that the fine should be set at $400,000, with half of that amount payable to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW). Additionally, the court ordered BI Australia Pty Ltd to pay the prosecutor's costs, not exceeding $40,000. The judge meticulously reviewed the evidence and the legal framework to arrive at these conclusions.

The final orders included the conviction of BI Australia Pty Ltd, a fine of $400,000, a requirement for the company to pay 50% of the fine to the prosecutor, and an order for the company to cover the prosecutor's costs, up to a specified limit. These orders were reflective of the court’s assessment of the seriousness of the offence and the need for appropriate penalties and compensation.

Orders

Orders of the court

(1) BI Australia Pty Ltd is found guilty.

(2) BI Australia Pty Ltd is convicted.

(3) I order that BI Australia Pty Ltd pay a fine of $400,000.

(4) I order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5) BI Australia Pty Ltd to pay the prosecutors costs which are not to exceed $40,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 30 of 30 shown

R v Thompson
[2021] SASCA 40

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SafeWork NSW v HCM Building Pty Ltd
[2019] NSWDC 632 Para 89

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SafeWork NSW v Grandcity Constructions Pty Ltd
[2018] NSWDC 398 Para 4

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Nash v Resource Pacific Pty Ltd (No 3)
[2018] NSWSC 45 Para 57

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Bulga Underground Operations v Nash
[2017] NSWCCA 96 Para 97

… …Show in full text ↓
DPP v Vibro-Pile (Aust) Pty Ltd
[2016] VSCA 55 Para 50

… …Show in full text ↓
Bulga Underground Operations Pty Ltd v Nash
[2016] NSWCCA 37

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WorkCover Authority (NSW) v Sarjame Storage Pty Ltd
[2015] NSWDC 151 Para 101

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Orbit Drilling v The Queen
[2012] VSCA 82 Para 93

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Baiada Poultry Pty Ltd v The Queen
[2012] HCA 14 Para 56

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Kirwin v The Pilbara Infrastructure Pty Ltd
[2012] WASC 99 Para 57

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Muldrock v The Queen
[2011] HCA 39

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Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales
[2011] NSWCA 316 Para 65

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Laing O'Rourke (BMC) Pty Ltd v Kirwin
[2011] WASCA 117 Para 53

… …Show in full text ↓
Thiess Pty Ltd v Industrial Court of New South Wales
[2010] NSWCA 252 Para 49

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Kirk v Industrial Court of New South Wales
[2010] HCA 1 Para 47

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R v Miria
[2009] NSWCCA 68 Para 114

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R v Cage
[2006] NSWCCA 304 Para 100

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R v MMK
[2006] NSWCCA 272 Para 99

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Markarian v The Queen
[2005] HCA 25 Para 88

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R v Youkhana
[2004] NSWCCA 412 Para 120

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R v MA
[2004] NSWCCA 92 Para 99

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Slivak v Lurgi (Australia) Pty Ltd
[2001] HCA 6 Para 54

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Royall v The Queen
[1991] HCA 27 Para 64

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Veen v The Queen (No 2)
[1988] HCA 14 Para 93

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Smith v Broken Hill Pty Ltd
[1957] HCA 34 Para 61

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Dunlop Rubber Australia Ltd v Buckley
[1952] HCA 72 Para 60

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Morrison v Powercoal Pty Ltd
[2003] NSWIRCOMM 416 Para 95

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WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd
[2005] NSWIRCOMM 1 Para 62

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[1983] 1 WLR 1171
[1983] 1 WLR 1171 Para 49

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Legislation cited

Click a section to find it in the full text

Work Health and Safety Act 2011 (ACT)
12 mentions · first at
Crimes (Sentencing Procedure) Act 1999 (NSW)
3 mentions · first at
Fines Act 1996 (NSW)
2 mentions · first at
Occupational Health and Safety Act 2000 (NSW)
2 mentions · first at

Medium Neutral Citation:	SafeWork NSW v BI Australia Pty Ltd [2025] NSWDC 364
Hearing dates:	12 June 2025
Date of orders:	17 September 2025
Decision date:	17 September 2025
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) BI Australia Pty Ltd is found guilty. (2) BI Australia Pty Ltd is convicted. (3) I order that BI Australia Pty Ltd pay a fine of $400,000. (4) I order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) BI Australia Pty Ltd to pay the prosecutors costs which are not to exceed $40,000.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty EXPARTE PROSECUTIONS – elements of the offence COSTS – prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, Occupational Health and Safety Act 2000 (NSW), s 8(2) Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 18, 19, 31, 32, 46
Cases Cited:	Baida Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Director of Public Prosecutions v Vibro-Pile (Aust) [2016] VSCA 55 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Hammersley Iron Pty Ltd v Robertson (Western Australia Supreme Court, 2 October 1988, unrep) Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbura Infrastructure Pty Ltd [2012] WASC 99 LaingO’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 R v Board of Trustees of the Science Museum [1983] 1 WLR 1171 R v Cage [2006] NSWCCA 304 R v MA (2004) 145 A Crim R 434;