On 17 April 2026, three decisions were handed down by New South Wales courts that convicted Young Mining Company Pty Ltd (YMC) for offences under the Work Health and Safety Act 2011 (NSW) (WHS Act).
An officer of YMC, Mr Aditya Jhunjhunwala (Mr Jhunjhunwala), was also convicted in one of the proceedings.
YMC is the owner and operator of the Thuddungra Mine, an open surface magnesite mine located approximately 29 kilometres north-west of Young, NSW.
1. Prosecution of YMC and Mr Jhunjhunwala in relation to the Photometric Plant Incident on 10 August 2021
The most significant of the three convictions, heard before Scotting DCJ in the District Court of NSW, arose from a serious incident on 10 August 2021, in which Mr Leslie Price (Mr Price), a casual worker employed by YMC, fell headfirst into an unguarded chute leading to a conveyor belt on a Photometric Plant (a specialised mineral processing and sorting machine).
Mr Price slipped on loose material that had accumulated on the conveyor guarding whilst investigating a blockage. Despite pulling the emergency stop lanyard, the plate feeder continued to operate and Mr Price became partially buried by material deposited into the chute. He suffered a serious crush injury to the right side of his chest, fractured ribs, and a lumbar spine injury.
The NSW Resources Regulator (Regulator) charged YMC as the person conducting a business or undertaking (PCBU) with a Category 1 offence under s 31 of the WHS Act, alleging gross negligence in breach of its primary duty of care under s 19(1).
The Regulator also charged Mr Jhunjhunwala, the Managing Director and an officer of YMC, with a Category 2 offence under s 32 of the WHS Act for failing to exercise due diligence under s 27(1).
YMC’s conviction
The Court found YMC guilty of the Category 1 offence for breaching its primary duty under s 19(1).
Scotting DCJ commented that the test for ‘gross negligence’ is an objective one, measured against the conduct of a reasonable person but applied with regard to the personal attributes of the accused. To establish gross negligence, the prosecution must prove that an accused’s conduct involved:
- A great falling short of the standard of care a reasonable person would have exercised in the circumstances;
- A high risk that death or grievous bodily harm would follow; and
- That the conduct, in all the circumstances, warrants criminal punishment.
Scotting DCJ further commented that:
- as the maximum penalties for a Category 1 offence (s 31) are significantly higher than for a Category 2 offence (s 32) (including potential imprisonment) the conduct constituting a Category 1 offence must be correspondingly more serious to maintain a meaningful distinction between the two offence categories;
- steps taken to mitigate a risk are highly relevant. There is a significant difference between a PCBU that takes no steps at all and one that takes some potentially effective but inadequate steps; the latter is less likely to be found grossly negligent;
- the nature of the risk is also relevant, encompassing both the severity of potential consequences and the likelihood of occurrence. More inherently dangerous or frequently performed tasks will more readily support a finding of gross negligence where no control measures are in place;
- the tribunal of fact must assess all of the evidence to determine whether the PCBU’s failures were so gross as to justify a finding beyond a mere breach of duty under s 32; and
- even though s 31 is framed differently from s 32 (which expressly requires a “failure to comply” with a duty), a Category 1 offence requires proof that the accused’s conduct constituted a breach of the duty owed under Part 2 of the WHS Act.
Applying the above, the Court found on the facts that YMC had a Safety Management System (SMS) which was extensive on paper, but in reality, it was out-of-date, not implemented, not audited, and not used to train workers.
Additionally, the Court found that YMC had actual knowledge of the risk of workers falling into an unguarded chute and actual knowledge of the applicable control measures, yet took no steps to address either. In particular, the defective emergency stop lanyard had been identified as non-compliant since 4 October 2019 (nearly two years before the incident) and repeated requests for parts to repair it were not funded.
The Court therefore found that YMC’s conduct was significantly more egregious than that required for a Category 2 offence because YMC took no steps to control a known risk of death or serious injury, despite having:
- Actual knowledge of the risk and how to control it;
- Control measures that were simple, convenient and inexpensive to implement; and
- A documented SMS that would have been effective had it been implemented.
The Court further found that YMC chose not to implement its own SMS and, considering all the evidence, made expenditure decisions that prioritised production over safety.
The Court then found that YMC failed to comply with its s 19(1) duty to implement the SMS and to provide a fit-for-purpose emergency stop system, which was a significant or substantial cause of Mr Price being exposed to a risk of death or serious injury.
Mr Jhunjhunwala’s conviction
The Court found Mr Jhunjhunwala guilty of the Category 2 offence for failing to exercise due diligence under s 27(1).
Scotting DCJ commented that the scope of the due diligence duty has not been authoritatively determined but:
- it does require the officer to be proactive and makes them liable for their own acts or omissions;
- what constitutes reasonable steps depends on the officer’s position in the corporate structure and their capacity to control the relevant objectives;
- it does not require an officer to take all reasonably practicable measures or to personally ensure worker safety, rather, it requires adherence to a minimum standard of behaviour involving a system that ensures the PCBU’s compliance with its duties, together with adequate supervision to ensure the system is properly carried out;
- the officer is not required to personally undertake the reasonably practicable measures on behalf of the PCBU; and
- a breach of s 27 is not dependent on a breach of another duty by the PCBU.
Scotting DCJ further commented that to prove a breach of the duty, the prosecution must identify the reasonable steps the officer should have taken, including the elements of due diligence listed in s 27 of the WHS Act.
Applying this, the Court found that:
- Mr Jhunjhunwala’s daily visits to the Mine were focused on production rather than safety;
- Mr Jhunjhunwala failed to take reasonable steps to identify the need to supply the parts or to authorise funding to purchase parts for the repair or upgrade of the emergency stop system; and
- Mr Jhunjhunwala failed to direct implementation of the SMS and failed to provide adequate resources to enable it to be implemented.
The Court found that the above conduct constituted a failure to exercise the minimum standard of due diligence required by s 27 of the WHS Act.
Additionally, the Court found that Mr Jhunjhunwala’s breach of his duty involved a failure to ensure that YMC complied with its s 19(1) duty to implement the SMS and to provide a fit-for-purpose emergency stop system, which was a significant or substantial cause of Mr Price being exposed to a risk of death or serious injury.
2. Prosecution of YMC for non-compliance with a Section 155 Notice in relation to the Incident on 10 August 2021
This case was also heard before Scotting DCJ in the District Court. Following Mr Price’s incident in August 2021, the Regulator issued a series of notices under s 155 of the WHS Act requiring YMC to provide information and produce documents. The operative notice for this case was dated 11 March 2022, contained 52 questions and had a compliance deadline of 7 April 2022. YMC’s Financial Controller, Mr Bipin Pandey (Mr Pandey), provided a response by that date, but the Regulator considered it inadequate.
The Court conducted a detailed question-by-question analysis of YMC’s responses. It found that YMC had complied with a number of the questions, or that non-compliance had not been proven, but had failed to comply with 19 of the 52 questions. YMC was found guilty of the s 155(5) offence in respect of those 19 questions.
Two key principles emerge from this decision.
- Partial compliance with a notice is not a defence. The statutory obligation is to comply with each individual requirement. This means that a non-responsive or partial answer constitutes a failure to comply with that requirement.
- An “all or nothing” approach to answering requirements in a notice is unreasonable. YMC and its solicitor had taken the position that all questions touching on matters within the knowledge of a former employee, Mr Kevin Davidson, could not be answered because Mr Davidson was unavailable. The Court firmly rejected this, finding that Mr Pandey was required to make reasonable enquiries of the persons still available to him (including Mr Jhunjhunwala who had daily involvement in the Mine’s operations) and respond to the best of YMC’s ability. The fact that YMC subsequently produced site diaries, prestart check sheets, maintenance records, and other operational documents in August 2022 confirmed that responsive material had existed all along.
The Court acknowledged that the Regulator had adopted a “very hard line” with YMC and that certain aspects of the Regulator’s conduct in issuing successive notices “bordered on an abuse of process.” However, this did not amount to a reasonable excuse for YMC’s failure to comply with the requirements of the notice, given its continued ability to provide at least partial substantive responses.
3. Prosecution of YMC and Mr Jhunjhunwala in relation to the Mobile Screening Machine Incident on 19 September 2022
This case was heard in the Industrial Court of New South Wales and concerned a separate and distinct incident occurring on 19 September 2022.
Mr Cameron Wells, a labourer employed by YMC, suffered serious hand injuries when a shovel he was using to clean mud from the tail drum of a mobile screening machine became caught in the rotating drum and was pulled into the conveyor rollers.
The NSW Resources Regulator charged both YMC as the PCBU and Mr Jhunjhunwala as an officer with Category 2 offences.
YMC’s conviction
YMC was found guilty of a Category 2 offence under s 32 of the WHS Act. The Court found that YMC failed to conduct an adequate risk assessment, implement and enforce a safe work procedure for cleaning the Mobile Screen, and implement an effective Isolation SOP, including providing workers with personal isolation locks. Prior to the incident, there was no system requiring isolation and lockout when cleaning built-up material from the Mobile Screen, and parts of the plant remained running during cleaning tasks. Mr Wells, who had worked at the mine for only 18 days, gave evidence that he had never been shown how to isolate the machine or told to switch the conveyor rollers off when cleaning it. YMC’s subsequent risk assessment and training of workers in the Isolation SOP in the weeks following the incident demonstrated that both adequate risk assessments and more thorough training were reasonably practicable measures to avoid the risk of serious injury. The absence of these measures constituted a breach of YMC’s duty under the WHS Act.
Mr Jhunjhunwala’s acquittal
However, the prosecution of Mr Jhunjhunwala was unsuccessful. The Court acquitted him of the officer’s duty offence, finding that three of the four measures pleaded against him were struck out for failing to specify, with sufficient particularity, what he should personally have done to discharge his duty under s 27.
Crucially, Paingakulam J noted that whilst the six requirements of due diligence under s 27(5) of the WHS Act provide a framework for understanding what due diligence looks like, they do not themselves constitute ready-made particulars of a charge. A charge against an officer must identify the specific act or omission constituting the contravention, meaning it must go beyond stating what outcome the PCBU should have achieved and instead identify the precise governance step the officer personally should have taken but did not. For example, allegations that Mr Jhunjhunwala failed to require or direct YMC to provide training to employees did not identify to whom such a direction should have been given, in circumstances where there was no site manager at the mine.
Additionally, whilst the Regulator did prove that Mr Jhunjhunwala failed to verify that documented procedures were being used with enough specificity, this finding did not result in liability. The Court found that the procedures in place did not address the cleaning task that caused the incident, meaning that any failure to verify their use could not be a significant or substantial cause of Mr Wells’ exposure to the pleaded risk.
These three decisions give rise to a number of important takeaways:
- A safety management system that exists on paper but is not implemented, enforced, audited, or used to train workers offers no protection against prosecution and may actually be used to support a finding of gross negligence by demonstrating that a PCBU knew about a risk and knew the solution but took no steps to address it.
- The duty of due diligence requires proactive steps to be taken. As the conviction of Mr Jhunjhunwala in one matter but his acquittal in another demonstrates, if due diligence failings can be causally linked to exposure to risk, officers will face significant personal criminal liability.
- The obligation to respond to s 155 notices requires genuine engagement with each question in the notice. Recipients must make reasonable enquiries and respond to the best of their ability.
Cases cited:
- NSW Resources Regulator v Young Mining Company Pty Ltd and NSW Resources Regulator v Jhunjhunwala [2026] NSWDC 101;
- NSW Resources Regulator v Young Mining Company Pty Ltd [2026] NSWDC 100; and
- NSW Resources Regulator v Young Mining Company Pty Ltd and NSW Resources Regulator v Jhunjhunwala [2026] NSWIC 14
For more information, please contact Michael Tooma.
This article was prepared by Hamilton Locke. It is intended as a general summary of recent decisions and does not constitute legal advice.
