Work Health and Safety prosecution: Fraternity Club double jeopardy bid fails

In October 2023, two patrons at the Fraternity Club’s “Casino Bar” were served margaritas where the rims had been dipped in caustic soda instead of salt, after a maintenance worker mistakenly stored caustic soda in an unlabelled food container under the bar and it was then used in the cocktail rimmer. The patrons suffered chemical injuries after consuming the contaminated drinks. The NSW Food Authority investigated and laid multiple Food Act charges for unsafe and unsuitable food, and Food Standards Code breaches, all tied to the same 19 October 2023 incident, and Fraternity Club pleaded guilty to several of those charges in the Local Court and was fined a total of about $48,244, constrained by the Local Court’s $10,000 per‑offence jurisdictional cap. Later, SafeWork NSW commenced a separate Work Health and Safety prosecution in the Industrial Court, alleging a section 32 WHS Act offence for failing to comply with its section 19(2) duty to protect patrons from a risk of death or serious injury, with a maximum penalty close to $2 million.

Fraternity Club applied for a permanent stay of the Work Health and Safety prosecution, arguing it was an abuse of process because it had already been punished under the Food Act for the “same conduct”, raising double jeopardy/same criminality concerns as well as oppression and unfairness flowing from admissions made in the Food Act proceedings. The Industrial Court rejected that argument, holding that the WHS charge is legally and factually different from the Food Act offences, targets broader WHS risk‑control failures (chemicals and food labelling systems, training and supervision), and is significantly more serious in terms of maximum penalty. Any overlap in factual conduct can be managed at sentencing to avoid double punishment, and any potential unfairness from the earlier admissions can be dealt with under the Evidence Act rather than by stopping the WHS prosecution entirely. The stay application was dismissed and the Work Health and Safety prosecution will proceed, with the Fraternity Club ordered to pay SafeWork NSW’s costs of the motion.

You can read the full judgment here:
SafeWork NSW v Fraternity Club Ltd – NSW Caselaw

Can a PCBU be “double charged” under WHS law?

This decision reinforces that a PCBU can face sequential proceedings arising from the same incident where different legislation captures different aspects of the alleged failures, even where one of those proceedings is a Work Health and Safety prosecution. Being prosecuted and sentenced under one Act (for example, the Food Act) does not automatically prevent a later WHS prosecution if the elements of the offences are not “substantially the same” and the later prosecution is addressing broader or different WHS criminality. The court’s focus is on abuse of process: is the second case oppressive, illegitimate, or so overlapping that there is a real risk of double punishment that cannot be cured at sentencing?

The Industrial Court confirmed that concerns about double counting of common conduct are usually dealt with at sentencing, by ensuring the defendant is not punished twice for the same factual acts, rather than by preventing a regulator from bringing a distinct Work Health and Safety prosecution at all. For PCBUs, this means that where an incident has cross‑cutting regulatory implications (for example, food safety and WHS, environmental harm and WHS, or WHS and specialist technical regulation), multiple agencies may each pursue their own enforcement pathway. The same theme appears in other serious WHS‑related criminal matters, such as R v Turner NSWDC 18, which we discuss in more detail here: WHS Act procedure ignored: R v Turner, where the courts emphasise the gravity of the harm and the need for robust enforcement when duty holders fail to manage foreseeable risks with catastrophic consequences.