SafeWork NSW v Profect Construction Pty Ltd - [2025] NSWIC 19

Industrial Court

New South Wales

Case Name:	SafeWork NSW v Profect Construction Pty Ltd
Medium Neutral Citation:	[2025] NSWIC 19
Hearing Date(s):	14 October 2025
Date of Orders:	4 November 2025
Decision Date:	4 November 2025
Before:	Bellew AJ
Decision:	(1) I convict Profect Construction Pty Ltd of the offence as charged. (2) I impose a fine of $45,000.00. (3) Profect Construction 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 2 – where crane on work site came into contact with overhead power lines causing cabin of the vehicle to be scorched – no person injured – obvious risk of injury – where a series of steps could have been easily and inexpensively implemented to address the risk – some steps taken to address the risk which were insufficient to properly do so – serious offending – strong subjective case – early plea of guilty - defendant a small family company – unchallenged evidence of parlous financial state establishing a reduced capacity to pay a fine – substantial moderation of fine justified balanced against the need for any penalty to reflect general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW)
Cases Cited:	DH v R [2022] NSWCCA 200 Muldrock v The Queen (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 Sabra v R (2015) 257 A Crim R 33 Safework NSW v Arkwood Gloucester Pty Limited (No. 2) [2022] NSWDC 201 Safework NSW v Onsite Rental Group Operations Pty Limited [2021] NSWDC 338 Safework NSW v S G Interior Linings Pty Limited [2025] NSWDC 249
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Profect Construction Pty Ltd (Offender)
Representation:	Counsel: A Mykkeltvedt (Prosecutor) P Barry (Offender) Solicitors: SafeWork NSW (Prosecutor) LegalVision (Offender)
File Number(s):	2025/00050086
Publication Restriction:	Nil

JUDGMENT

INTRODUCTION

By an amended summons filed on 14 July 2025 Profect Construction Pty Ltd (the defendant) was charged with an offence contrary to ss 19(1) and 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) in the following terms:
“On 9 February 2023 at 156 Park Road Dundas in New South Wales [the defendant], being a person conducting a business or undertaking who had a health and safety duty under [the Act] to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with its duty, and the failure to comply with that duty exposed Peter Psaradellis, a worker, to a risk of death or serious injury”.
The pleaded risk was particularised as follows:
“The risk was the risk to Peter…

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.

Keep reading for free

Create a free CaseChat account to read SafeWork NSW v Profect Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWIC 19
Decision Date: 4 November 2025

CaseChat Overview and Summary

SafeWork NSW took action against Profect Construction Pty Ltd, a small family-owned business, in the Local Court of New South Wales. The dispute arose from an incident where a crane operated by the defendant came into contact with overhead power lines, resulting in the vehicle's cabin being scorched. Fortunately, no one was injured during the incident. The crux of the matter was whether the defendant had breached work health and safety laws by failing to manage an obvious risk of injury. The legal issues before the court involved determining whether the defendant's actions constituted a serious breach of safety regulations and whether the penalties imposed should be proportionate to the offence and the defendant's financial circumstances.

The court deliberated on the severity of the offence and the steps taken by the defendant to mitigate the risks. Although some measures had been implemented, they were insufficient to fully address the risk of injury. The court also considered the defendant's early plea of guilty and its financial situation, which was in a parlous state. The court found the case to be a strong subjective one, given the evident risk and the inadequate measures taken to prevent the incident. Despite the defendant's financial difficulties, the court balanced the need for general deterrence with the company's capacity to pay. The court concluded that a moderate fine was justified, reflecting both the seriousness of the offence and the defendant's limited ability to pay.

Following the court's reasoning, the court convicted Profect Construction Pty Ltd of the offence. It imposed a fine of $45,000.00, taking into account the early plea of guilty and the defendant's financial hardship. The court also ordered that 50% of the fine be paid to the Prosecutor, as per the relevant provisions of the Fines Act 1996 (NSW). Furthermore, Profect Construction Pty Ltd was required to cover the Prosecutor's costs of the proceedings as agreed or assessed.

Orders

Orders of the court

(1) I convict Profect Construction Pty Ltd of the offence as charged.

(2) I impose a fine of $45,000.00.

(3) Profect Construction 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.

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.