SafeWork NSW v Hibernian Contracting Pty Ltd - [2025] NSWIC 4

Industrial Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4
Hearing dates: 28 February 2025
Date of orders: 14 May 2025
Decision date: 14 May 2025
Before: Paingakulam J
Decision:
(1) I impose a fine of $180,000.
(2) Hibernian Contracting Pty Ltd is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.
(3) Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.

Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — category 2 — hot work — sparks from grinder mixed with oil to cause an explosion — no hot work permit system — mid-range of objective seriousness
SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — capacity to pay a fine — appropriate penalty
SENTENCING — mitigating factors — assistance to law enforcement authorities — principles

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)

Cases Cited:
Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67
BW v The Queen [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MF v The King [2024] NSWCCA 42
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
R v Borkowski [2009] NSWCCA 102
R v Cartwright (1989) 17 NSWLR 243
R v Fabrizio Calderoni [2000] NSWCCA 511
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Wilkinson (No 5) [2009] NSWSC 432
R v XX [2017] NSWCCA 90
R v Youkhana [2004] NSWCCA 412
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Hibernian Contracting Pty Ltd (Defendant)
Representation:
Counsel:
P Gow (Prosecutor)
M Shume (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
JP Gould (Defendant)

File Number(s): 2024/292969
Publication restriction: Nil

JUDGMENT

Hibernian Contracting Pty Ltd (Hibernian) was engaged by Camden Council (the Council) to redevelop the Council’s works depot in Narellan, New South Wales. On 12 August 2022, Mr Dustin Clifford, a labourer working for Hibernian, was using a grinder to cut through a pipe attached to an old waste oil tank. He suffered serious burns when…

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 4
Decision Date: 14 May 2025

CaseChat Overview and Summary

In the matter of SafeWork NSW versus Hibernian Contracting Pty Ltd, the Central Administrative Tribunal was tasked with addressing the issue of workplace safety violations leading to a serious explosion. The explosion was caused by sparks from a grinder mixing with oil, resulting in significant injuries to two workers. The dispute centred around the company’s failure to implement a hot work permit system, which is critical in preventing such incidents. The tribunal was required to assess the appropriate penalty for the company, considering both the objective seriousness of the offence and the relevant sentencing factors.

The legal issues before the tribunal included determining the objective seriousness of the offence, assessing the company's capacity to pay, and considering both aggravating and mitigating factors. The tribunal noted that the incident had mid-range objective seriousness due to the nature of the explosion and the injuries sustained. Aggravating factors included the company’s lack of a hot work permit system and previous similar incidents, while mitigating factors involved the company's cooperation with authorities and its efforts to improve safety measures post-incident.

In delivering its decision, the tribunal emphasised the importance of deterrence and the need for companies to comply with workplace safety regulations to protect employees. It found that the company’s failure to implement a hot work permit system was a significant oversight. The tribunal imposed a fine of $180,000, taking into account the company's ability to pay and the need for the penalty to serve as a deterrent to future non-compliance. Additionally, the tribunal ordered that half of the fine amount be paid to the prosecutor and that the company cover the costs of the proceedings.

The tribunal concluded with specific orders for the company to pay a fine of $180,000 and cover the prosecutor’s costs. Furthermore, 50% of the fine was to be directed to the prosecutor as per the provisions of the Fines Act 1996 (NSW). This decision underscores the tribunal's commitment to ensuring workplace safety and holding companies accountable for breaches of safety regulations.

Orders

Orders of the court

(1) I impose a fine of $180,000.

(2) Hibernian Contracting Pty Ltd is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

(3) Pursuant to s 122(2) 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 Hibernian Contracting Pty Ltd [2025] NSWIC 4
Hearing dates:	28 February 2025
Date of orders:	14 May 2025
Decision date:	14 May 2025
Before:	Paingakulam J
Decision:	(1) I impose a fine of $180,000. (2) Hibernian Contracting Pty Ltd is to pay the prosecutor’s costs of the proceedings, as agreed or assessed. (3) Pursuant to s 122(2) Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
Catchwords:	EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — category 2 — hot work — sparks from grinder mixed with oil to cause an explosion — no hot work permit system — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — capacity to pay a fine — appropriate penalty SENTENCING — mitigating factors — assistance to law enforcement authorities — principles
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW)
Cases Cited:	Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 BW v The Queen [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MF v The King [2024] NSWCCA 42 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 R v Borkowski [2009] NSWCCA 102 R v Cartwright (1989) 17 NSWLR 243 R v Fabrizio Calderoni [2000] NSWCCA 511 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 32 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wilkinson (No 5) [2009] NSWSC 432 R v XX [2017] NSWCCA 90 R v Youkhana [2004] NSWCCA 412 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Hibernian Contracting Pty Ltd (Defendant)
Representation:	Counsel: P Gow (Prosecutor) M Shume (Defendant) Solicitors: SafeWork NSW (Prosecutor) JP Gould (Defendant)
File Number(s):	2024/292969
Publication restriction:	Nil