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;
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- Case
- [2025] NSWDC 364
- Decision Date
CaseChat Overview and Summary
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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