On 19 October 2023, a sports and recreation club (the Club) served margarita cocktail drinks to two patrons which had inadvertently been rimmed with caustic soda instead of salt (Incident). The two patrons who consumed the beverages sustained burns, which required immediate medical attention.

Investigations conducted by the NSW Food Authority (Food Authority) and SafeWork NSW (SafeWork) found the bar’s staff stored salt, which was used to rim margarita glasses, in an unlabeled plastic takeaway container underneath the bar sink.

A week before the Incident, the Club’s maintenance worker used the contents of this unlabelled takeaway container to unblock the bar sink drain under the mistaken belief that the container held caustic soda, which is a corrosive chemical cleaning agent.

The maintenance worker then subsequently refilled the takeaway container with caustic soda and returned it to its original position beneath the bar sink.

The Food Authority commenced prosecution proceedings against the Club in the Wollongong Local Court (Food Authority Proceedings), alleging offences under the Food Act 2003 (NSW) (Food Act). The Club entered a plea of guilty and following a sentence hearing on 20 September 2024, the Club was required to pay $48,244 in total for fines, prosecution’s costs and a contribution to the Victim’s Support Levy.

On 25 September 2025, SafeWork commenced prosecution proceedings against the Club in the Industrial Court of NSW (WHS Act Proceedings) for contravention of sections 19(2) and 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

The Club applied to permanently stay the WHS Act Proceedings, in other words, sought a court order to bring the proceedings to an end. The Club contended that it was exposed to double jeopardy and an abuse of process because it had already been convicted and fined for offences under the Food Act ‘for the same conduct’.

On 3 March 2026, the Industrial Court dismissed the Club’s application as it did not demonstrate the necessary exceptional or extreme circumstances.

Double jeopardy

The Club argued that the SafeWork WHS Act prosecution was oppressive because it put the Club at risk of double punishment.

To amount to double jeopardy in this case, the Industrial Court held that the offences under the Food Act and the WHS Act need to be ‘substantially the same’.

In this case, the elements of the relevant offences under the Food Act and the WHS Act are substantially different. For example, the fact that food was served unsafe is not an element of the offence charged in the WHS Act Prosecution Proceedings.

SafeWork also highlighted the different particulars pleaded in each matter. In the Food Authority proceedings, the relevant particulars focus on the use, handling and storage of food products in the workplace, including the requirement that containers used for food storage are correctly labelled.

By contrast, the WHS Act proceedings particularize risks, failures and reasonably practicable measures concerning the Club’s systems of work, as well as the provision of information, instruction and training to workers in relation to those systems, in its capacity as a duty holder under the WHS Act, for the use, handling and storage of hazardous chemicals in the workplace.

Furthermore, the maximum penalty for the WHS Act Proceedings offence (almost $2 million) is around 50 times the maximum total of penalties that the Magistrate could have ordered in the Wollongong Local Court ($40,000).

The Industrial Court held that any common conduct can be addressed in the sentencing exercise to ensure that the Club is not punished twice.

Key takeaways

SafeWork can take up to 2 years to commence a WHS Act prosecution from the date of when the alleged offence first came to its notice.

WHS Act and Food Act offences need to be ‘substantially the same‘ before double jeopardy can be considered by a Court.

It is recommended that each Club and workplace refresh its risk assessment for the safe use, handling and storage of hazardous chemicals, to ensure that:

• Hazardous Chemicals are stored in their original container and/or correctly labelled containers and
• Workers receive information, instruction and training in the safe use, handling and storage of hazardous chemicals.

Safety is a shared responsibility for everyone at work.

This article was written by Greg McCann, Partner, and Daniel Wong, Associate.