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SafeWork NSW v Kellogg (Aust.) Pty Ltd

SafeWork NSW v Kellogg (Aust.) Pty Ltd

Case [2025] NSWIC 12 19 September 2025

Criminal Liability

Sentencing

Unconscionable Conduct

Criminal Law

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Industrial Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12
Hearing dates: 4 September 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Before: Paingakulam J
Decision:
(1) I impose a fine of $510,000.
(2) Kellogg 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:
CRIMINAL LAW — work health and safety — offences — category 2 — workers fell off elevated work platform after it was struck by a truck — workers not supervised — workers not adequately trained or inducted — safety procedures not followed — failures were reflective of a failure to implement existing adequate safety systems — large company — good corporate citizen
SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — appropriate penalty — reduced moral culpability due to failures of other entities — record of previous convictions — cannot find that offender is unlikely to reoffend

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Occupational Health and Safety Act 1983 (NSW)
Work Health and Safety Act 2011 (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
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
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 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 Youkhana [2004] NSWCCA 412
Saunders v The Queen [2022] NSWCCA 174
Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; [2000] NSWIRComm 53
WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd (2009) 186 IR 125; [2009] NSWIRComm 92

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Kellogg (Aust.) Pty Ltd (Offender)
Representation:
Counsel:
A Mykkeltvedt (Prosecutor)
B Rauf (Offender)
Solicitors:
SafeWork NSW (Prosecutor)
Ashurst (Offender)

File Number(s): 2025/80102
Publication restriction: Nil

JUDGMENT

Kellogg (Aust.) Pty Ltd (Kellogg) manufactures and distributes ready-to-eat cereals and snacks from a manufacturing plant in Banksmeadow, New South Wales (the site). Kellogg engaged Chess Engineering Pty Ltd (Chess) to conduct works involving the replacement and installation of new air curtains above the roller doors of a number of the loading docks at…

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.

Continue reading SafeWork NSW v Kellogg (Aust.) Pty Ltd

Details

AGLC: SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12
Case: [2025] NSWIC 12
Decision Date: 19 September 2025

CaseChat Overview and Summary

The matter of SafeWork NSW v Kellogg (Aust.) Pty Ltd involved SafeWork NSW prosecuting Kellogg (Aust.) Pty Ltd for offences under work health and safety legislation. Two workers fell off an elevated work platform after it was struck by a truck. The prosecution alleged that the workers were not supervised, not adequately trained or inducted, and that safety procedures were not followed. The company was considered to be a large entity with a good corporate citizen status. The case was heard in the Local Court of New South Wales.

The court was required to determine the legal issues surrounding the company’s liability for the alleged breaches of work health and safety laws. The primary focus was on whether the company had failed to implement existing adequate safety systems and procedures, which led to the workers' injuries. The court also considered the objective seriousness of the offences, the aggravating and mitigating factors, the deterrence value of the sentence, and the company’s moral culpability.

The court found that the company’s failures were reflective of a failure to implement existing adequate safety systems. Although the company was a large entity with a good corporate citizen status, it did not negate the seriousness of the breaches. The court acknowledged that the company's failures were partly due to the actions of other entities, which reduced its moral culpability. However, the court found that the company could not be considered unlikely to reoffend. The court imposed a fine of $510,000, which was reduced by 50% as per the Fines Act 1996 (NSW), and ordered the company to pay the prosecutor’s costs. The court also ordered that 50% of the fine be paid to the prosecutor.

Orders

Orders of the court

(1) I impose a fine of $510,000.

(2) Kellogg 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Saunders v The The Queen
[2022] NSWCCA 174 Para 86

…tion to afford an offender leniency pursuant to s 21A(3)(e) CSP Act “is not all or nothing and may be a matter of degree”: Saunders v The Queen [2022] NSWCCA 174 per Price J at [66] (Beech-Jones CJ at CL agreeing at [1] and Lonergan J agreeing at [70]). In view of the scale of Kellogg’s manufacturing operations and…
Unity Pty Limited v SafeWork NSW
[2018] NSWCCA 266 Para 95

…In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to…
Bulga Underground Operations v Nash
[2017] NSWCCA 96 Para 64

…s with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd ; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:…
Muldrock v The Queen
[2011] HCA 39 Para 60

…ature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].…
BW v R
[2011] NSWCCA 176 Para 59

…falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 61

…ing circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].…
R v Robert Borkowski
[2009] NSWCCA 102 Para 90

…nalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. I accept the joint position of the parties that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act .…
R v McNaughton
[2006] NSWCCA 242 Para 58

…mstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].…
Markarian v The Queen
[2005] HCA 25 Para 57

…I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ ( Markarian ).…
R v Youkhana
[2004] NSWCCA 412 Para 82

…satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 90

…s. Kellogg is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. I accept the joint position of the parties that a discount of 25% is appropriate in the circumstan…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 90

…n of these proceedings. Kellogg is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. I accept the joint position of the parties that a discount of 25% is appropriat…
Baumer v R
[1988] HCA 67 Para 59

…quires the Court to consider where the conduct of Kellogg falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):…
Veen v The Queen (No 2)
[1988] HCA 14 Para 58

…ld neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 56)
Fines Act 1996 (NSW)
1 mention (from Para 94)
Occupational Health and Safety Act 1983 (NSW)
1 mention (from Para 84)
Shops and Industries Act 1962 (NSW)
1 mention
Work Health and Safety Act 2011 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12
Hearing dates:	4 September 2025
Date of orders:	19 September 2025
Decision date:	19 September 2025
Before:	Paingakulam J
Decision:	(1) I impose a fine of $510,000. (2) Kellogg 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:	CRIMINAL LAW — work health and safety — offences — category 2 — workers fell off elevated work platform after it was struck by a truck — workers not supervised — workers not adequately trained or inducted — safety procedures not followed — failures were reflective of a failure to implement existing adequate safety systems — large company — good corporate citizen SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — appropriate penalty — reduced moral culpability due to failures of other entities — record of previous convictions — cannot find that offender is unlikely to reoffend
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Occupational Health and Safety Act 1983 (NSW) Work Health and Safety Act 2011 (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 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 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 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 Youkhana [2004] NSWCCA 412 Saunders v The Queen [2022] NSWCCA 174 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261; [2000] NSWIRComm 53 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd (2009) 186 IR 125; [2009] NSWIRComm 92
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Kellogg (Aust.) Pty Ltd (Offender)
Representation:	Counsel: A Mykkeltvedt (Prosecutor) B Rauf (Offender) Solicitors: SafeWork NSW (Prosecutor) Ashurst (Offender)
File Number(s):	2025/80102
Publication restriction:	Nil