SafeWork NSW v BKH Contractors Group Pty Ltd - [2025] NSWDC 401

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v BKH Contractors Group Pty Ltd [2025] NSWDC 401
Hearing dates: 26 August 2025
Date of orders: 3 October 2025
Decision date: 03 October 2025
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $200,000 and that will be reduced by 25% to reflect the plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $150,000.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Criminal Procedure Act 1986 (NSW), s 257B
Fines Act 1996 (NSW), s 122
Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 46

Cases Cited:
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
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Texts Cited:
SafeWork NSW Code of Practice Construction Work (August 2019)
SafeWork NSW Code of Practice Formwork (March 2021)

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 401
Decision Date: 03 October 2025

CaseChat Overview and Summary

The case of SafeWork NSW v BKH Contractors Group Pty Ltd involved a prosecution against the defendant, BKH Contractors Group Pty Ltd, for an offence under work health and safety legislation. The dispute centred on whether the defendant had breached its duty to ensure the health and safety of its workers, leading to a risk of death or serious injury. The case was heard in the Local Court of New South Wales.

The primary legal issues before the court were whether the defendant had contravened specific statutory obligations under the work health and safety legislation and, if so, what the appropriate penalty should be. The court had to determine if the prosecution had successfully established the elements of the offence, including the breach of duty, the existence of a risk of death or serious injury, and the applicability of any mitigating factors due to the defendant's plea of guilty.

The court found that the defendant had indeed contravened the relevant statutory provisions, leading to a significant risk to the health and safety of its workers. In assessing the penalty, the court considered the seriousness of the offence, the defendant's previous history, and the plea of guilty. The court ultimately decided on a fine of $200,000, reduced by 25% due to the plea of guilty, resulting in a fine of $150,000. Additionally, the court ordered that 50% of the fine be paid to the prosecutor and that the defendant cover the prosecutor's costs as per statutory provisions.

The final orders of the court included the conviction of the defendant, the imposition of a fine of $150,000, the payment of half of that fine to the prosecutor, and the requirement for the defendant to pay the prosecutor's costs as agreed or assessed.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $200,000 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $150,000.

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

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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 BKH Contractors Group Pty Ltd [2025] NSWDC 401
Hearing dates:	26 August 2025
Date of orders:	3 October 2025
Decision date:	03 October 2025
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $200,000 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $150,000. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Criminal Procedure Act 1986 (NSW), s 257B Fines Act 1996 (NSW), s 122 Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32, 46
Cases Cited:	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 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW vSarjameStorage Pty Ltd [2015] NSWDC 151 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142
Texts Cited:	SafeWork NSW Code of Practice Construction Work (August 2019) SafeWork NSW Code of Practice Formwork (March 2021)