SafeWork NSW v Menai Civil Contractors Pty Ltd

Case •

[2025] NSWIC 8

•

19 August 2025

No judgment structure available for this case.

Industrial Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Menai Civil Contractors Pty Ltd [2025] NSWIC 8
Hearing dates: 12 August 2025
Date of orders: 19 August 2025
Decision date: 19 August 2025
Before: Paingakulam J
Decision:

(1) I convict Menai Civil Contractors Pty Ltd of the offence as charged.

(2) I impose a fine of $69,750.

(3) Menai Civil Contractors Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

(4) 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 3 — fall from height — formwork — worker not wearing a harness — low range of objective seriousness

SENTENCING — relevant factors on sentence — De Simoni principle — Amended Statement of Facts included an element of a more serious charge — sentence tender bundle included documents that could lead the Court to De Simoni error — agreed facts tendered on sentence should not contain any facts that would have rendered the offender liable to a more serious penalty — material relevant to the incident should, to the extent that it is relevant to the Court’s sentencing exercise, be included in the Agreed Facts, unless that material contains relevant facts that are in dispute

SENTENCING — relevant factors on sentence —objective seriousness — deterrence — mitigating factors — appropriate penalty

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:

Barton v The Queen [2009] NSWCCA 285

Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67

BW v The Queen [2011] NSWCCA 176

Makarian 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 Palu [2002] NSWCCA 381

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Wilkinson (No 5) [2009] NSWSC 432

R v Youkhana [2005] NSWCCA 231

Ruge and Cormack v The Queen [2015] NSWCCA 153

Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:Principal judgment
Parties: SafeWork NSW (Prosecutor)
Menai Civil Contractors (Offender)
Representation:

Counsel:
A Sivanathan (Prosecutor)
M Shume (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Gillis Delaney Lawyers (Offender)
File Number(s): 2024/416180
Publication restriction: Nil

JUDGMENT

  1. Menai Civil Contractors Pty Ltd (Menai Civil) was engaged as principal contractor by Stockland Development Pty Ltd (Stockland) to perform works at a construction site in Huntley, New South Wales. Menai Civil contracted with Bridgeworks (Aust) Pty Ltd (Bridgeworks) to assist with construction works at the site, and Bridgeworks contracted with Topdeck Formwork Services Pty Ltd (Topdeck) for the supply of workers for the site. On 11 November 2022, Mr Michael Bagnato, a contractor employed by Topdeck, suffered a fall while stripping formwork at the site.

  2. Menai Civil appeared for sentence after pleading guilty to an offence charged in a Further Amended Summons filed on 16 June 2025, that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty contrary to s 33 of the WHS Act.

  3. The risk particularised at paragraph 12 of Annexure A to the Further Amended Summons is as follows:

“The risk was to the health and safety of workers, in particular Mr Bagnato, as a result of falling from a height while undertaking formwork stripping at the Site.”

  1. By its plea of guilty, Menai Civil accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“a) Require subcontractors, in particular Bridgeworks, to develop, implement and enforce a site-specific safe system of work for the stripping of formwork, which:

i. Accurately specified the methodology for the safe dismantling of formwork with adequate fall prevention;

ii. Required Bridgeworks to obtain and use an elevated work platform at the Site; and

iii. Required that workers, in particular Mr Bagnato, must not climb to the top of abutments at all, particularly without fall prevention.

b) Verify that subcontractors, in particular Bridgeworks, were following safe systems of work.”

  1. The maximum penalty for this offence at the relevant time was a fine of 5,770 penalty units ($620,101.90).

The evidence

  1. SafeWork NSW tendered an Amended Statement of Facts with the consent of Menai Civil. That Amended Statement of Facts included a paragraph (paragraph 19) which addressed the “serious injuries” sustained by Mr Bagnato as a consequence of his fall. The exposure of a worker to a risk of serious injury or death is an element of the more serious charge under s 32 of the WHS Act. The prosecutor accepted that the Court could not have regard to that evidence, as it would contravene the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) and it was withdrawn. As Gibbs CJ makes clear at 392 of De Simoni, and as repeatedly stated by the New South Wales Court of Criminal Appeal, where the prosecutor has accepted a plea of guilty to an offence less serious than the facts warrant, the agreed facts tendered on sentence should not contain any facts that would have rendered the offender liable to a more serious penalty, and this may result in a degree of artificiality in the fact finding exercise: R v Palu [2002] NSWCCA 381 per Howie J at [21] (Hidden and Levine JJ agreeing at [1]–[2]) (Palu); R v Youkhana [2005] NSWCCA 231 per Howie J at [19] (Spigelman CJ and Hunt AJA agreeing at [30]–[31]); Barton v The Queen [2009] NSWCCA 285 per Howie J at [18]; Ruge and Cormack v The Queen [2015] NSWCCA 153 per Hamill J at [39]–[40] (Leeming and Simpson JJA agreeing at [1]–[2]).

  2. The prosecutor also tendered an extensive Agreed Tender Bundle which contained the following material relevant to the incident giving rise to the charge in addition to the Further Amended Summons and the Amended Statement of Facts:

  1. ASIC Search for Menai Civil;

  2. Incident Report;

  3. Incident Cause Analysis Method (ICAM) Investigation Report by George Poursanidis, HSEQ Manager for Menai Civil;

  4. Factual Inspection Report of Inspector John Patton;

  5. 19 photographs taken by Inspector John Patton on 11 November 2022 with photo log;

  6. Menai Civil Contractors SWMSs prepared by Bridgeworks;

  7. Menai Civil Contractors – Project Safety Plan – prepared by Bridgeworks;

  8. Menai Civil Contractors – SWMS Review Checklist;

  9. Menai Civil Contractors – Site Inductions – Michael Bagnato;

  10. Menai Civil Contractors – Daily Prestarts (15, 17, 18, 19, 20, 26, 27, 28 & 31 October 2022; 2, 3, 4, 8, 9, 10 & 11 November 2022);

  11. Site Inspection Checklists completed by James Scott;

  12. Menai Civil Contractors – Revised Construction Methodology – Removal of Formwork Shutters – prepared by Bridgeworks;

  13. Menai Civil Contractors – Construction Methodology – Erection and Removal of Work Platform – prepared by Bridgeworks;

  14. Menai Civil Contractors – Daily Prestarts;

  15. Menai Civil Contractors – Toolbox Talks;

  16. Menai Civil Contractors – SWMS Review Checklist;

  17. Site Inspection Checklist completed by James Scott;

  18. Menai Civil Contractors – SWMS Monitoring and Task Observation (x2);

  19. Menai Civil Contractors – Lessons Learnt;

  20. High Level Breakdown of Incident completed by George Poursanidis (Menai Civil Contractors);

  21. NSW Government Code of Practice – Formwork;

  22. Safe Work Australia – General Guidance for Formwork and Falsework;

  23. Safe Work Australia – Formwork and Falsework Information Sheet;

  24. Safe Work Australia – Guide to Formwork; and

  25. AS 3610-1995 – Formwork for Concrete.

  1. Quite apart from the fact that the consideration of some of the material contained in these further documents would result in De Simoni error, much of it was unnecessary for me to be able to exercise the sentencing discretion appropriately in this matter. The prosecutor withdrew the tender of items 2 and 3 above in order to avoid a breach of the principle in De Simoni. Ultimately, the prosecutor took me to only a very small number of the 316 pages in the Agreed Tender Bundle. The tender of large amounts of material in addition to agreed facts creates undue burden for the Court, particularly where, as was the case in this matter, there is very little point of difference between the parties on matters material to the sentencing exercise. As stated by Howie J in Palu at [21] immediately after addressing the inclusion of material in agreed facts that is in breach of the De Simoni principle:

“ … If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced …”

  1. I accept that the tender of a small amount of photographic evidence will often be of assistance to the Court in matters of this nature. There may also be matters where it is expedient to tender the entirely of a guidance document rather than extract the relevant portion(s) of it in agreed facts. However, other material relevant to the incident in question and particularly material found in incident and investigation reports should, to the extent that it is relevant to the Court’s sentencing exercise, be included in the Agreed Facts, unless that material contains relevant facts that are in dispute.

  2. In coming to an appropriate sentence, I have had regard to the evidence before the Court, except for that material which expressly states or permits an inference that Mr Bagnato was exposed to a risk of serious injury or death. What follows is a summary of the evidence relevant to the offence to permit an understanding of the sentence imposed.

Background

  1. Menai Civil undertakes the delivery of large-scale projects and heavy civil works across both the public and private sectors.

  2. Menai Civil was engaged by Stockland as the principal contractor for the construction of the “Forest Reach Stage 2” project at 399 Bong Bong Road, Huntley, New South Wales (the site). Menai Civil contracted Bridgeworks to assist in the construction of the Reed Creek Bridge at the site. Bridgeworks engaged Topdeck to supply workers for the construction, erection and removal of formwork on an “ad hoc” basis by way of text or email.

  3. Mr Michael Bagnato was engaged by Topdeck to undertake formwork stripping at the site. Mr Bagnato had approximately eight years of experience in the construction and formwork industry and commenced working at the site in around August 2022.

  4. Other workers at the site included Mr George Poursanidis, who had been the HSEQ Manager at Menai Civil since May 2022. Mr Poursanidis has approximately 20 years’ experience and his responsibilities at the site included developing Menai Civil’s health and safety system and undertaking ISO/OFSC accreditation and recertification. Mr Tobias Buchanan, Site Manager at Bridgeworks, was also present at the site. He had been working at the company for 16 years and his responsibilities included organising and managing the works Bridgeworks undertook in building the bridge. Finally, Mr Jake Mather had been contracted to Topdeck since about November 2021 and was performing formwork at the site.

The incident

  1. Mr Bagnato arrived at the site on the morning of 11 November 2022 and signed onto both the Menai Civil and Bridgeworks sheets. He was told that the task for the day was to strip the south side of the bridge’s abutment. He had a conversation with Mr Mather before commencing this task.

  2. Mr Bagnato accessed the top of the southern abutment, from where he attached wire chains between a 26t excavator and the form soldiers, using an extension ladder. He was not wearing a harness, as the steel to anchor a harness was on the other side of the abutment. Mr Scott Raybould was operating the excavator while Mr Bagnato was loosening the main screws, and Mr Mather remained at the bottom of the abutment.

  3. At 2.20pm, Mr Bagnato fell backwards off the southern abutment of the Reed Creek Bridge.

Legal obligations and guidance material

  1. Regulation 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) requires a person conducting a business or undertaking (PCBU) to manage the risk of a fall in the vicinity of an edge over which a person could fall. Regulation 79 of the WHS Regulation requires a PCBU that cannot eliminate the risk of a fall to minimise it by providing adequate protection, including by use of a fall prevention device such as a temporary work platform.

  2. There was also a significant amount of guidance material available to Menai Civil. SafeWork NSW’s Code of Practice – Formwork (March 2021) contains information about how to manage the risks associated with formwork. It relevantly provides the following guidance material to PCBUs:

  1. The WHS Regulation outlines a “hierarchy of control” when managing risks associated with construction work, ranking control measures from the highest level of protection and reliability to the lowest. Where it is reasonably practicable, hazards must be eliminated. If elimination is not reasonably practicable, PCBUs must minimise the risk as far as reasonably practicable by substituting hazards for a safer alternative, isolating the hazard from people, and/or using engineering controls such as handrails and edge protection to prevent falls from heights. PCBUs must implement administrative controls and then use personal protective equipment (PPE) to minimise any risks that remain. Duty holders must ensure control measures are maintained and regularly reviewed so that they remain effective.

  2. The principal contractor has a statutory duty imposed by the WHS Act to ensure, so far as is reasonably practicable, that the health and safety of workers and others is not put at risk from work carried out by the PCBU. Before formwork operations start, the principal contractor should check that the formwork design complies with AS 3610 series and must undertake at least the following steps:

  1. use the information from the designer’s safety report to identify hazards specifically affecting formwork;

  2. assess the risks involved in carrying out the work;

  3. identify the most appropriate methods to control any risks;

  4. provide suitable and safe access to and from the construction site; and

  5. ensure that all workers have received appropriate training, information and instruction.

  1. Alongside consulting with the principal contractor, any contractor altering and stripping/dismantling formwork should carry out at least the following:

  1. assess the risk involved in doing the work;

  2. identify how to prevent the risk of injury;

  3. provide a documented Safe Work Method Statement (SWMS);

  4. assess hazardous manual handling tasks;

  5. consider the level of a worker’s experience when allocating tasks;

  6. minimise the working heights for persons erecting and stripping/dismantling formwork;

  7. strip/dismantle formwork in accordance with certified formwork and structural engineer’s guidance or with guidance from AS 3610 series; and

  8. strip/dismantle formwork in a safe manner.

  1. Information, training and instruction must cover the nature of the work, associated risks and control measures to be implemented. A PCBU must ensure that anyone undertaking construction work has completed general construction induction training. A person who dismantles formwork should be provided with all necessary information, training and instruction to ensure they are competent to do the work safely.

  2. The risk of falling should be managed before, during and after workers are on site. In the formwork context, hazards such as loose materials, unidentified penetrations and void areas, incomplete formwork decks and inadequate training increase the risk of falling. Measures such as handrails, edge protection, perimeter protection screens and temporary catch platforms can minimise the risk of falling.

  3. It is recommended to use guardrails and handrails that have been designed and engineered as edge protection systems in accordance with AS 4994.1: Temporary Edge Protection – General Requirements.

  4. Stripping and dismantling formwork should be carried out in an orderly, systematic and progressive manner so the deck is gradually removed. Fall hazards and manual task hazards should be minimised as much as possible.

  1. Safe Work Australia’s General Guide for Formwork and Falsework (July 2014) contains further information on how to manage formwork and falsework risks at a workplace. It states that when dismantling formwork and falsework, PCBUs should, among other things, maintain working platforms at least 450 mm wide at the level of dismantling, maintain a full working platform below the dismantling level and remove any fall protection components at the last possible stage as the dismantling progresses.

  2. Moreover, Safe Work Australia’s Formwork and Falsework Information Sheet (July 2014) also contains information regarding how to manage risks associated with formwork and falsework activities.

  3. Finally, SafeWork NSW’s Code of Practice – Managing the Risk of Falls at Workplaces (August 2019) contains information about falls from heights generally. It advises PCBUs that the first step in the risk management process is to identify all fall hazards in the workplace. It then outlines how adequate protection against risk is provided if PCBUs maintain a safe system of work, including by providing fall prevention devices, work positioning systems or fall arrest systems. If a risk remains after considering these measures, it must be minimised as far as is reasonably practicable by implementing administrative controls. It also outlines the correct use of guardrails, required load resistance and examples of permit systems.

Systems of work prior to the incident

  1. At the time of the incident, Menai Civil had in place the following systems of work:

  1. A site induction process for all workers who attended the site. Mr Bagnato was inducted on 18 October 2022. As part of his induction, he provided Menai Civil with his construction induction card and NSW driver licence and signed the relevant SWMSs. The induction process with Mr Bagnato included a discussion about SWMS compliance requirements and fall protection systems.

  2. Maintaining copies of the relevant SWMSs for all high-risk work being undertaken by subcontractors. A copy of SWMS No 3, Substructure Construction, dated 2 August 2022, was obtained from Bridgeworks. It did not identify an elevated work platform (EWP) as required plant or equipment for the site. However, when it came to addressing what it identified as a high-risk task of removing formwork from shutters, the SWMS expressly contemplated the use of an EWP and specified both the means of access to it and the manner in which it was to be maintained.

  3. Reviewing the relevant SWMS using a checklist and approving it for use on 18 October 2022.

  4. Providing a site supervisor on site every day. Mr Jeff Stewart was the site supervisor at the time of the incident. However, he was attending to other workers when the incident occurred, having “checked in” with Bridgeworks workers earlier that day.

  1. Holding prestart meetings daily to discuss the work to be done that day, everyone’s role and any particular hazards or issues to be aware of. On the day of the incident, formwork was identified as a hazard when the planned work activity included Bridgeworks continuing work on the bridge.

  2. Having its site engineers carry out SWMS observations by walking around the site and observing the work being carried out by contractors, including Bridgeworks, as against the contractors’ SWMS.

  3. Having its site engineers carry out weekly site inspections.

Systems of work after the incident

  1. Following the incident, Menai Civil undertook the following:

  1. reviewed the SWMS;

  2. conducted an ICAM investigation;

  3. increased its supervision for high-risk work activity;

  4. commenced regular spot checks during high-risk work activities; and

  5. engaged a site engineer to perform SWMS observations during every task phase while working at heights.

Offender’s case on sentence

  1. Menai Civil read and relied on the affidavit of Mr Lee Martin Fahey, Managing Director, sworn 6 August 2025. The following is a summary of his evidence in addition to matters already set out in the Amended Statement of Facts.

  2. Mr Fahey is the director of Menai Civil. He has been involved in the civil construction industry for over 30 years, with experience ranging from plant operation and logistics to project and business leadership.

Expression of remorse and contrition

  1. Mr Fahey stated, on behalf of Menai Civil, that he sincerely regretted the incident and took responsibility for it. He stated that he was committed to upholding safety, integrity and continuous learning across the business.

About Menai Civil

  1. Menai Civil has been operating since 1978, with its current operating entity and leadership structure being established in 2002 when it was registered as a company. Its work involves a broad range of civil construction services including bulk earthworks, road and pavement construction, sewer and stormwater infrastructure, utility relocations and complex remediation and demolition works. It maintains clients from both the public and private sector in metropolitan and regional NSW. Menai Civil has significantly grown from a small subcontracting business with 13 staff to a “medium level player” in the NSW civil construction industry that primarily delivers projects as a principal contractor, with clients such as Sydney Water, Stockland, Mirvac and IKEA.

  2. Menai Civil currently employs approximately 100 staff across a broad range of disciplines, including project managers, civil engineers, estimators, safety officers, site supervisors, machine operators, labourers, surveyors and administration and pre-construction support personnel.

  3. Mr Fahey became Menai Civil’s Managing Director in 2002. As Managing Director, Mr Fahey oversees all aspects of the business, including strategic decision-making, operational oversight, financial governance and safety. He is hands-on with key projects and frequently engages in site-level safety walkthroughs and project reviews.

  4. Menai Civil is a member of the Civil Contractors Federation (CCF). Mr Fahey has been on the board of CCF NSW for the past 14 years, was the NSW representative on the board of CCF Australia for two years and has been the President of CCF NSW for four years.

  5. Menai Civil holds the following accreditations:

  1. OFSC Accreditation – Office of the Federal Safety Commissioner under the Australian Government Building and Construction WHS Accreditation Scheme;

  2. ISO 45001 – Occupational Health & Safety Management Systems;

  3. ISO 9001 – Quality Management Systems; and

  4. ISO 14001 – Environmental Management Systems.

  1. Menai Civil supports numerous local initiatives and charitable causes, including participation in the i98FM Illawarra Convoy raising funds for children and families facing life-threatening illnesses. It also makes ongoing contributions to mental health awareness, including support for initiatives such as MATES in Construction. In addition, Menai Civil has a strong focus on reconciliation and meaningful Indigenous engagement, encouraging participation from Indigenous suppliers and fostering cultural awareness within its workforce.

  2. Menai Civil also demonstrates its strong family and community values by supporting youth employment, including through work experience placements and apprenticeships across regional New South Wales.

Systems of work prior to the incident

  1. Menai Civil’s Safety Management System is aligned with ISO 45001 and its accreditation under the Federal Safety Commissioner’s WHS Scheme. It maintains comprehensive SWMS for all high-risk work, site-specific safety plans and a proactive approach to hazard identification and risk mitigation.

Safety measures on the Bridgeworks job

  1. Mr Fahey gave unchallenged evidence of the following systems of work in place at the time of the incident, in addition to those set out in the Amended Statement of Facts:

  1. clearly defined exclusion zones;

  2. designated spotters for high-risk activities;

  3. comprehensive site inductions;

  4. task-specific SWMSs; and

  5. a fall assist system installed in relevant high-risk areas to reduce fall related hazards.

Systems of work after the incident

  1. Mr Fahey also gave unchallenged evidence, supplementing the Amended Statement of Facts, that after the incident Menai Civil immediately initiated a review from which it responded by implementing measures to improve existing systems and prevent recurrence as follows:

  1. strengthened exclusion zone controls;

  2. held refresher safety training for all site personnel involved in high-risk activities;

  3. updated safety information, developed and communicated in consultation with workers and made readily accessible across all worksites;

  4. deployed visual alarms to improve real-time hazard awareness; and

  5. enhanced near-miss reporting protocols to support early intervention and continuous improvement.

Consideration

  1. I have had regard to the objects of the WHS Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

  2. I have taken into account the maximum penalty for this offence: Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Makarian).

Objective seriousness

  1. The proportionality principle requires that a sentence should 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 offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

  2. This task requires the Court to consider where the conduct of Menai Civil 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]):

“This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie.”

  1. The objective seriousness of an offence is to be determined by reference to the nature 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].

  2. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding 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].

  3. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Makarian at [51].

  4. The Court of Criminal Appeal examined the sentencing process 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:

“[34] The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However, the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

  1. SafeWork NSW submitted that this offence falls within the lower range of objective seriousness, having regard to the following factors which it asked the Court to consider in making its assessment:

  1. The risk of a worker falling from height whilst conducting formwork stripping at the site was known to Menai Civil. Such a risk was identified within SWMS No. 3, Substructure Construction, which defines removing formwork shutters as a “working at heights high risk work activity”. It states that elevated working platforms are to be encapsulated by barriers and harnesses are to be worn and tied off when working at heights.

  2. Menai Civil had overall responsibility for reviewing and approving Bridgeworks’ SWMSs. On 18 October 2022, it reviewed and approved Bridgeworks’ SWMS entitled Substructure Construction.

  3. Also on 18 October 2022, Menai Civil conducted a site induction with Mr Bagnato where “fall protection” and “scaffold” were discussed as “high risk items”.

  4. On the day of the incident, Menai Civil conducted a “Daily Prestart” administered by the site supervisor Mr Jeff Stewart.

  5. Menai Civil had its site engineers carry out SWMS observations by physically walking around the site and observing the work being carried out by Bridgeworks, comparing it to the SWMS. It also had its site engineers carry out weekly site inspections.

  6. On 11 November 2022, Mr Stewart had checked in with Bridgeworks prior to the incident occurring but had not observed that an EWP was not being used.

  7. It was obvious to Menai Civil that Bridgeworks was working at heights while constructing the Reed Creek Bridge. Any person stripping formwork is necessarily working at height and could fall if safe systems of work are not developed, implemented and enforced by subcontractors, including Bridgeworks.

  8. The mitigation of the risk by properly verifying that Bridgeworks were following safe systems at work was a straightforward task for Menai Civil. Its failure to do so was inconsistent with a proactive or systematic approach to safety: Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261 at [166] (Walton J).

  9. Menai Civil was the principal contractor on the site, therefore holding the obligations imposed on all principal contractors by the WHS Regulation. It is experienced in the construction industry such that it should not have completely relied on Bridgeworks’ expertise to ensure safety while stripping formwork.

  10. It was Menai Civil’s duty to ensure subcontractors, including Bridgeworks, were following safe systems of work.

  1. Menai Civil also submitted that the objective seriousness of the offence was in the lower range of matters that come before the Court. It pointed to the layers of safety that it had in place to ensure, so far as is reasonably practicable, that work on the site was done safely. Mr Fahey’s evidence was that he believed that the controls that Menai Civil had in place would be sufficient. In light of the systems they had in place, Menai Civil submitted that the Court should accept that Mr Fahey’s opinion was held on a reasonable basis.

  2. The measures which Menai Civil accepts that it could have taken to prevent the incident which occurred are set out at [4] above. I accept the submission of Menai Civil that this is not a case where no attention was paid to safety, nor is it one where safety was spoken about but not adhered to. I agree that the evidence demonstrates that the defendant was intent on having and maintaining safe systems of work. The gravamen of this offence is that, notwithstanding the safety systems and controls that Menai Civil had in place, including inspecting the work of subcontractors to ensure that they were complying with the safe work methods identified in the relevant SWMSs, it failed either to require Bridgeworks to obtain and use an EWP or to verify that Bridgeworks was following safe systems of work.

  3. It is an agreed fact that Mr Stewart had “checked in with Bridgeworks” earlier in the day. Beyond the daily prestart meeting, it is unclear what that involved. It would have been obvious, even on a cursory examination of the work being undertaken by Bridgeworks, that no EWP was being used, as provided for in its SWMS. Plainly, Bridgeworks was nonetheless permitted by Menai Civil to continue to undertake formwork stripping at the site. Further, the need to prevent a worker from climbing to the top of an abutment at any time, but certainly without any sort of fall prevention mechanism, was also obvious.

  4. The measures upon which the prosecutor relies were basic steps that Menai Civil could easily have taken and should have taken. Nonetheless, what occurred ought rightly to be characterised as a failure to maintain what should have been an effective safety system. Taking all the above matters into account in the manner indicated, I accept the position of both parties that the objective seriousness of the offence falls within the low range.

Deterrence

  1. The penalty imposed in relation to this offence must provide for general deterrence.

  2. I accept that, at the time of the incident, Menai Civil, through the efforts of Mr Fahey, was a company which was concerned to meet its WHS Act responsibilities. This is reflected in Menai Civil’s absence of prior convictions over its almost 23 years of operation with its current operating entity and the significant safety systems and control measures in place at the time of the incident. Accordingly, I find that there is a reduced need for the sentence imposed upon Menai Civil to provide specific deterrence. I am fortified in that view by the measures taken by Mr Fahey since the incident, set out at [24] and [37] above, to implement company wide safety reforms.

Aggravating factors

  1. Consistent with the concession made by SafeWork NSW, I find that there are no aggravating factors as contemplated by s 21A(2) CSP Act.

Mitigating factors

  1. Menai Civil has no prior convictions: s 21A(3)(e) CSP Act.

  2. Menai Civil is otherwise of good character: s 21A(3)(f) CSP Act. Both the steps which it took after the incident and its significant history of community involvement demonstrate this. Further, Menai Civil was registered in 2002, a period of more than 20 years without any prior convictions at the time of the incident.

  3. Because of the safety systems and control measures that Menai Civil had in place at the time of the incident, its cooperation with SafeWork NSW’s investigation and the steps that it has taken to improve its systems since the incident, I find that Menai Civil is unlikely to reoffend (s 21A(3)(g) CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) CSP Act).

  4. Menai Civil has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged failure on its part.

  5. Menai Civil entered a plea of guilty on 16 June 2025 to the charge particularised in a Further Amended Summons filed in Court on that date. The plea of guilty was entered at the third mention of proceedings, which commenced with the issue of a summons on 8 November 2024. Menai Civil 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]. The prosecutor conceded that the defendant should be afforded a discount on sentence of 25% in recognition of its early guilty plea. I accept that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

Capacity to pay a fine

  1. Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of Menai Civil before imposing a fine.

  2. 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 that circumstance.

  3. There was no evidence before the Court concerning the financial position of Menai Civil and no submission was made that Menai Civil had a reduced capacity to pay a fine.

Penalty

  1. The appropriate fine is $93,000, which will be reduced by 25% to reflect the plea of guilty.

  2. I make the following orders:

  1. I convict Menai Civil Contractors Pty Ltd of the offence as charged.

  2. I impose a fine of $69,750.

  3. Menai Civil Contractors Pty Ltd is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

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

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Decision last updated: 19 August 2025

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Cases Cited

22

Statutory Material Cited

4

Barton v R [2009] NSWCCA 285
Baumer v R [1988] HCA 67
Baumer v R [1988] HCA 67