SafeWork NSW v Customconstruction Pty Ltd - [2025] NSWDC 148

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148
Hearing dates: 16 April 2025
Date of orders: 2 May 2025
Decision date: 02 May 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Grant leave to the prosecutor to amend the Summons issued on 26 June 2024 in accordance with the terms of the Proposed Amended Summons which is annexure “B” to the affidavit of Madeline Smith affirmed on 18 February 2025.
(2)   Grant leave to the prosecutor to amend paragraph 20 of the annexure "A" to the Summons issued on 26 June 2024 in accordance with this judgment.
(3)   Dismiss the Notice of Motion filed by the defendant on 5 March 2025.
(4)   Costs reserved.

Catchwords:
PROCEDURAL – amendment of Summons – whether Summons fails to disclose an offence known to the law – defendant to know the charge it has to meet – consideration of entire Summons including particulars required – whether there was a slip or clumsiness in drafting – costs of seeking an indulgence necessary as a result of need to amend

Legislation Cited:
Criminal Procedure Act 1986 (NSW) ss 15, 16, 20, 21
Occupational Health and Safety Act 2000 (NSW) s 8
Work Health and Safety Act 2011 (NSW) ss 7, 19(1), 19(2)

Cases Cited:
Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
Broome v Chenoweth (1946) 73 CLR 583
Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157
Doja v The Queen [2009] NSWCCA 303
Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Customconstruction Pty Ltd (Defendant)
Representation:
Counsel:
Mr A Mykkeltvedt (Prosecutor)
Mr C Magee (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Holding Redlich (Defendant)

File Number(s): 2024/235538
Publication restriction: Nil

JUDGMENT

Introduction

On 25 July 2022 Mr Angus Hoskins was severely injured when he fell from height while working on residential premises at Avalon Beach. Mr Hoskins was employed by Wrigley Roofing Co Pty Ltd (Wrigley). Customconstruction Pty Ltd (Customconstruction) was the corporation undertaking the residential construction work. Customconstruction engaged Wrigley to undertake roofing work at the site.
By a Summons filed in this court on 26 June 2024, SafeWork NSW (SafeWork) charged Customconstruction with an offence under the Work Health and Safety Act 2011 (NSW) (the WHS Act).
By a Notice of Motion filed in this court on 19 February 2025 SafeWork seeks leave to amend the Summons. In support of that motion SafeWork relies upon the Affidavit of Ms Smith dated 18 February 2025 (PX1). Ms Smith is a solicitor for SafeWork. A marked-up version of the Proposed Amended Summons was handed up (MFI 4)
Customconstruction opposes the amendment of the Summons. By a Notice of Motion filed on 5 March 2025 Customconstruction seeks an order that the Summons be dismissed. Customconstruction relies upon the Affidavit of its solicitor Mr Selinger dated 5 March 2025 (DX1).
SafeWork filed…

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.

Continue reading SafeWork NSW v Customconstruction Pty Ltd

Details

AGLC: SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148
Case: [2025] NSWDC 148
Decision Date: 02 May 2025

CaseChat Overview and Summary

In SafeWork NSW v Customconstruction Pty Ltd, the plaintiff, SafeWork NSW, sought an amendment to a summons issued against Customconstruction Pty Ltd for alleged breaches of occupational health and safety regulations. The summons was issued on 26 June 2024, and the defendant sought to dismiss the summons on the grounds that it failed to disclose an offence known to the law, arguing that it did not provide sufficient detail for the defendant to adequately prepare a defence. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the summons, including its particulars, sufficiently disclosed an offence under the relevant statutory provisions, and if not, whether the summons could be amended to remedy this defect. The court considered the principle that a summons must be clear enough for the defendant to understand the charge against them, and whether any deficiencies could be corrected through amendment. The court also had to determine whether the failure to properly draft the summons was a mere slip or clumsiness and assess the costs associated with the amendment process.

The court found that while the summons contained some deficiencies, these were not fatal and could be rectified by amendment. The court accepted that the summons, when considered in its entirety with the particulars, did not fully disclose the offence, but the failure was attributable to a drafting error rather than an absence of an offence. The court granted leave for the summons to be amended to correct these errors, dismissing the defendant’s motion to quash the summons. The court emphasised the need for summonses to be drafted with care to avoid such issues. The court also noted that the costs of seeking the amendment were necessary due to the need to correct the summons.

The final orders of the court included granting leave to the prosecutor to amend the summons and dismissing the defendant's notice of motion. The court reserved the decision on costs pending further submissions.

Orders

Orders of the court

(1) Grant leave to the prosecutor to amend the Summons issued on 26 June 2024 in accordance with the terms of the Proposed Amended Summons which is annexure “B” to the affidavit of Madeline Smith affirmed on 18 February 2025.

(2) Grant leave to the prosecutor to amend paragraph 20 of the annexure "A" to the Summons issued on 26 June 2024 in accordance with this judgment.

(3) Dismiss the Notice of Motion filed by the defendant on 5 March 2025.

(4) Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148
Hearing dates:	16 April 2025
Date of orders:	2 May 2025
Decision date:	02 May 2025
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Grant leave to the prosecutor to amend the Summons issued on 26 June 2024 in accordance with the terms of the Proposed Amended Summons which is annexure “B” to the affidavit of Madeline Smith affirmed on 18 February 2025. (2) Grant leave to the prosecutor to amend paragraph 20 of the annexure "A" to the Summons issued on 26 June 2024 in accordance with this judgment. (3) Dismiss the Notice of Motion filed by the defendant on 5 March 2025. (4) Costs reserved.
Catchwords:	PROCEDURAL – amendment of Summons – whether Summons fails to disclose an offence known to the law – defendant to know the charge it has to meet – consideration of entire Summons including particulars required – whether there was a slip or clumsiness in drafting – costs of seeking an indulgence necessary as a result of need to amend
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 15, 16, 20, 21 Occupational Health and Safety Act 2000 (NSW) s 8 Work Health and Safety Act 2011 (NSW) ss 7, 19(1), 19(2)
Cases Cited:	Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 Broome v Chenoweth (1946) 73 CLR 583 Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157 Doja v The Queen [2009] NSWCCA 303 Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Customconstruction Pty Ltd (Defendant)
Representation:	Counsel: Mr A Mykkeltvedt (Prosecutor) Mr C Magee (Defendant) Solicitors: Department of Customer Service (Prosecutor) Holding Redlich (Defendant)
File Number(s):	2024/235538
Publication restriction:	Nil