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
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:
Solicitors:
A Mykkeltvedt (Prosecutor)
B Rauf (Offender)
SafeWork NSW (Prosecutor)
Ashurst (Offender)
File Number(s): 2025/80102 Publication restriction: Nil
JUDGMENT
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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…
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- AGLC
- SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12
- Case
- [2025] NSWIC 12
- Decision Date
CaseChat Overview and Summary
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
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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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