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

1. 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.

2. 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).

3. 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)

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).

5. SafeWork filed written submissions (MFI 1 and MFI 2) and Customconstruction filed written submissions (MFI 3). Both motions were heard on 16 April 2025. Counsel made further oral submissions.

The Amendments Sought

6. SafeWork seeks leave to amend the Summons in two respects. Firstly, it seeks leave to amend the “Details of Offence” on the first page of the Summons. Secondly, SafeWork seeks to amend the particulars of the risk pleaded in par 21 of Annexure A to the Summons.

7. Under the heading “Details of Offence” in the Summons the following appears:

“Details of Offence

On 25 July 2022 at [address] Avalon Beach, New South Wales, Customconstruction Pty Ltd (the defendant), being a person conducting a business or undertaking who had a duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of its business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed other persons to a risk of death or serious injury contrary to section 32 of the Act.

Date of offence: 25 July 2022

Place of offence: [address] Avalon Beach, NSW

Particulars: Attached as ‘Annexure A’.

Statutory provision describing offence: Section 19(1) and 32 of the Work Health and Safety Act 2011.

Law part code: 75970”

8. Section 19 of the WHS Act creates a “primary duty of care”. Section 19(1) provides:

19   Primary duty of care

(1)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)  workers engaged, or caused to be engaged by the person, and

(b)  workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

9. Section 7 of the WHS Act contains a definition of “worker”. The Particulars in Annexure A to the Summons say that Mr Hoskins was an employee of Wrigley and not of Customconstruction. He was thus alleged to be an employee of a contractor and fell within the definition of “worker” within s 7(1)(c) of the WHS Act.

10. Paragraph 9 of Annexure A to the Summons pleads that Mr Hoskins fell within the definition of “worker” because he was engaged or caused to be engaged by Customconstruction as he was an employee of a contractor engaged by Customconstruction to perform work on its behalf. Thus, SafeWork relies upon s 19(1)(a) of the WHS Act.

11. Paragraph 10 of Annexure A to the Summons pleads that the activities of Mr Hoskins in carrying out the work were influenced or directed by the defendant while he and other workers from Wrigley undertook the work, in that they were given direct instructions on where and how to work at the site. Thus, SafeWork also relies upon s 19(1)(b) of the WHS Act.

12. The problem with the “Details of Offence” portion of the Summons is that while it speaks of Customcontruction having a duty under s 19(1) of the WHS Act, it pleads that such duty was to ensure, so far as is reasonably practicable, that the health and safety of “other persons is not put at risk from work carried out as part of its business or undertaking”. Instead of pleading in relation to “other persons”, SafeWork now seeks leave to amend to plead that the duty under s 19(1) of the WHS Act was 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”. Such an amendment would align the words in the “Details of Offence” portion of the Summons with the words of s 19(1) of the WHS Act.

13. Instead, the reference to “other persons” is a reference to a phrase which occurs in s 19(2) of the WHS Act. Section 19(2) provides as follows:

(2)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

14. Charges under s 19(2) regularly come before this court and usually involve a failure to ensure the health and safety of persons at a workplace or adjacent to a workplace, other than “workers”. A classic example is tradespersons working on a building site, who are not engaged by the defendant or whose activities are not influenced or directed by the defendant. Another example from the cases is where a wall being demolished falls onto a public road, and the persons whose health and safety is put at risk are not people engaged on the site, but are pedestrians or other members of the public outside the worksite.

15. Thus, while the Summons speaks of an offence under s 19(1) of the WHS Act, the descriptive words in that portion of the Summons refer, rather confusingly, to a s 19(2) offence.

16. The Affidavit of Ms Smith (PX1) establishes that the disconnect between the charge under s 19(1) and the wording of the Details of Offence section of the Summons was an inadvertent drafting error. SafeWork now seeks leave to amend the Summons “so that the entirety of the language in the Details of Offence section is consistent with the offence charged and the remainder of the Summons” (MFI 1 par 6).

Power to Amend

17. SafeWork submitted (MFI 1 par 14-21) that the power to amend is found in provisions of the Criminal Procedure Act 1986 (NSW) (the CP Act).

18. Section 16(2) of the CP Act says:

16   Certain defects do not affect indictment

(2)  No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of—

(a)  any alleged defect in it in substance or in form, or

(b)  any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

19. Section 20 of the CP Act says:

20   Amendment of indictment

(1)  An indictment may not be amended after it is presented, except by the prosecutor—

(a)  with the leave of the court, or

(b)  with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3)  For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

20. The relevant provisions s 21 of the CP Act say:

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)  If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

…

(4)  An order under this section may be made either before trial or at any stage during the trial.

…

(6)  Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

21. Section 15(2) of the CP Act says that the word “indictment” refers to “any other process or document by which criminal proceedings are commenced”. Thus the provisions of ss 16, 20 and 21 apply to a Summons issued in a WHS prosecution.

22. Basic principles of criminal law govern the exercise of any discretion to permit the amendment of a summons. The primary consideration is the interests of justice. A court must also take into account the public interest underpinning the WHS Act. Procedural fairness must be afforded to the defendant with a view to preserving a fair trial between the parties.

23. Customconstruction accepted that if (contrary to its submissions) there was a power in respect of this Summons to grant an amendment, there was no discretionary reason to refuse the amendments sought.

Failure to Disclose an Offence Known to the Law

24. Customconstruction accepted that the provisions of ss 16, 20 and 21 could apply to a summons issued in the District Court in relation to an alleged offence under the WHS Act (MFI 3 par 24). The primary submission for Customconstruction was that those provisions of the CP Act do not apply to the defect in the Summons in these proceedings and would not permit this court to give SafeWork leave to amend the Summons to cure any defect.

25. The primary submission for Customconstruction was as follows (MFI 2 pars 31-35):

“31. The Summons alleges an offence that did not exist at law.

32. There are no available means to overcome this defect. Reliance cannot be placed by the Prosecutor or the Court on s. 11 of the CP Act as the offence was not described in the words of any section under the WHS Act creating the offence.

33. Whilst on its face s. 16(2) of the CP Act might appear to provide a means of overcoming the defect, that section does not allow a court to overlook a failure to disclose an offence known to law.

34. This issue was authoritatively determined by the Court of Criminal Appeal in the matters of Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 (Built), Doja v The Queen [2009] NSWCCA 303; (2009) 198 A Crim R 349. It also follows from what was said by Basten JA in Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128; (2007) 165 IR 7 at [132] (Rockdale Beef) that where there is uncertainty or ambiguity as to the identification of the offence or the nature of the offence, the defect will be outside the scope of s 16(2) of the CP Act.

35. The circumstances of these proceedings can be distinguished from the cases relied upon by the Prosecutor in the Prosecutor’s Submissions in support of the Prosecutor's Motion, in particular G.P. I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93 (GPI) and Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60, as well Rockdale Beef and Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208; (2012) 223 IR 86.”

26. Customconstruction submitted that the proposed amendment to the Summons would allege a different offence to the one pleaded in the Summons (MFI 3 par 39).

Sole Issue for Decision

27. The initial written submissions for SafeWork (MFI 1) focussed upon discretionary reasons why the proposed amendments should be allowed. The written submissions for Customconstruction (MFI 3) did not address these discretionary considerations. Instead, the Customconstruction submission was that no amendment should be contemplated or made, because the Summons as filed did not disclose an offence known to the law. This became the only issue to be decided. SafeWork relied upon a second written submission (MFI 2) in relation to this issue.

28. If the Customconstruction submission is accepted, then it is a complete answer to the SafeWork application seeking leave to amend, no matter how meritorious it may be otherwise. The Customconstruction submission was based upon the decision of the decision of the Court of Criminal Appeal decision in Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 (Built).

The CCA Decision in Built

29. The decision of the Court of Criminal Appeal in Built considered an application to amend a Summons filed as a result of persons being injured at a worksite. The prosecution was brought under the Occupational Health and Safety Act 2000 (NSW) (the OHS Act). The OHS Act has been repealed and replaced by the WHS Act. Section 8 of the OHS Act created health and safety duties similar to those created by s 19 of the WHS Act.

30. Section 8(1) of the OHS Act provided:

Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

31. Section 8(2) of the OHS Act provided as follows:

Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer's place of work.

32. The proceedings involved a fall at a building site and the exposure of two persons to the risk of injury. The Summons alleged that:

“Built NSW Pty Limited… failed by its act and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Jamie Zonno and Joshua Ziminez [sic] contrary to section 8(2) of the Occupational Health and Safety Act 2000.” (emphasis added)

33. The Court of Criminal Appeal considered whether infelicities of expression in the Summons could be cured by a grant of leave to amend. The problem identified with the wording of the Summons was that while Mr Zonno and Mr Jiminez were said to be persons other than employees, the Summons referred to the duty to ensure the health, safety and welfare “at work” of persons other than employees of the defendant. While the Summons described Mr Zonno and Mr Jiminez as “persons other than its employees” the Summons contained the phrase “at work” which was to be found in s 8(1) of the OHS Act and not in s 8(2) of the OHS Act.

34. The leading judgment is that of Bathurst CJ who said:

“[137] The difficulty with each summons is they adopt the language of the opening words of s 8(1) of the OH&S Act, including the words "at work", in seeking to formulate a charge under s 8(2). That is why the primary judge at [55] believed that it was possible that the pleader intended to formulate a charge under s 8(1). For a charge alleging an offence under s 8(2) to be properly pleaded it would need to aver that persons other than employees of the respondent were exposed to risks to their health or safety arising from the conduct of the respondent's undertaking while at the respondent's place of work.

[138] The summonses thus do not, in my opinion, disclose offences known to law. It is not a case where what has occurred is that an essential element has been left out which can be cured without procedural unfairness to the defendant: Rockdale Beef supra at [123]. Rather on its face, although expressed to be brought under s 8(2) of the OH&S Act, it pleaded the elements of an offence under s 8(1) of that Act which had no application to Messrs Zonno and Jiminez because as stated in the summons they were not employees of the respondent.

[139] The particulars do assert that Messrs Zonno and Jiminez were exposed to risk of injury and to that extent meets the requirements of s 8(2) of the OH&S Act. However, the acts and omissions particularised against the respondent are equally applicable to a charge under s 8(1) as to a charge under s 8(2) of the OH&S Act. The same analysis also applies in relation to the second summons concerning Mr Pulver.

[140] In these circumstances it seems to me that the deficiencies are so great that they do not plead a charge known to law as distinct from merely omitting or mispleading an essential element of the charge which could be cured by amendment or further particularisation. It follows that I do not think that the defects are ones to which s 16(2) of the CPA applies, nor ones which could be cured by amendment consistent with the authorities to which I have referred above.”

35. Bathurst CJ acknowledged that an indictment would not be a nullity if there was an error in particulars, providing the indictment disclosed an offence known to the law. At [141] Bathurst CJ said: “However, in the present case when each summons alleges one offence and does not plead the necessary elements but pleads matters relevant to a different offence, it does not seem to me that this approach can be adopted.”

36. The conclusion of Bathurst CJ expressed at [143] and [144] was that the summons disclosed no offence known to law and was not saved by s 16(2) or s 21 of the CP Act. He held that the appeal should be dismissed.

37. The other two members of the Court of Criminal Appeal, Beasley P and Hoeben CJ at CL, agreed with Bathurst CJ.

Submissions for Customconstruction

38. Customconstruction submitted that the Summons alleged an offence that did not exist at law. The submission was that this issue was authoritatively determined by the Court of Criminal Appeal in the decision in Built. Reliance was also placed upon Doja v The Queen [2009] NSWCCA 303 and Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128 at [132].

39. Customconstruction submitted that the “Details of Offence” portion of the Summons pleaded a duty under s 19(1) of the WHS Act, but did not use the words of an offence for a contravention of a s 19(1) duty. Instead, it was submitted that the Summons pleaded the words of an offence in relation to a duty pursuant to s 19(2) of the WHS Act. Thus, it was submitted, there was no such offence at law.

40. It was submitted that in Built, the court considered a similar issue in relation to an offence pleaded under s 8 of the OHS Act. The Summons in Built adopted the language of the opening words of s 8(1) of the OHS Act, including the words “at work” but sought to formulate a charge under s 8(2) of the OHS Act. This was identified by Bathurst CJ at [137].

38. At [139] Bathurst CJ examined the particulars which were a part of the Summons. His Honour said that the acts and omissions particularised against the respondent were equally applicable to a charge under s 8(1) as to a charge under s 8(2) of the OHS Act. Counsel for Customconstruction submitted that in this regard the particulars to the Summons the subject of these proceedings were equally applicable to a charge under s 19(1) of the WHS Act, as to a charge under s 19(2). For reasons set out below, I reject this submission made by Customconstruction.

39. Customconstruction submitted that the conclusion reached in Built should also be the conclusion reached in these proceedings. It was submitted that the Summons in these proceedings suffers from the same fatal defect as the Built Summons. It was submitted that this is not a case where what has occurred is that an essential element has been left out of the charge in the Summons, which can be cured without procedural unfairness to the defendant.

40. The written submissions for Customconstruction (MFI 3, par 70) reproduced par [142] from the decision of the Chief Justice in Built. That paragraph says:

“Further, I do not think this is case such as that considered by Dixon J in Broome v Chenoweth (1946) 73 CLR 583 at 601, where an offence is clearly indicated but in its statement there may be some slip or clumsiness which upon a strict analysis results in an ingredient of the offence not being the subject of a proper averment. For the reasons I have indicated, in my opinion, the defects in this case fall outside any such slip or clumsiness.”

44. Customconstruction submitted that the errors in the present Summons were not a slip or clumsiness which had resulted in an ingredient of the offence not being the subject of a proper averment. I reject that submission for reasons set out below. Counsel for SafeWork had submitted (MFI 1, par 37) that this was simply a case of “an inadvertent typographical error in the Summons”. I reject that submission. This is not a case of a spelling mistake or leaving out an essential word. It is a case where s 19(1) is specifically mentioned in the “Details of Offence” section of the Summons, and yet the words in that same section of the Summons have been taken, in part, from s 19(2) of the WHS Act.

45. Customconstruction submitted that there was a high level of similarity in the defects in the Summons in Built as compared to the Summons in these proceedings. It was submitted that, this being so, and consistent with the approach laid down by the Court of Criminal Appeal in Built, this court should find that the Summons discloses no offence known to the law, and thus an amendment cannot be permitted.

Submissions for SafeWork

46. The second set of written submissions for SafeWork (MFI 2) said that the remarks of Bathurst CJ in Built were obiter. I reject that submission. An application had been made to the trial judge by the defendant in a summary work health and safety prosecution upon two bases. The first basis was that there were technical defects in the bringing of the prosecution and the person who had brought the prosecution was not authorised to do so. The trial judge accepted this submission and dismissed the proceedings. The second argument put before the trial judge was that the Summons did not disclose an offence known to the law and thus could not be amended. The trial judge did not deal with this second submission, regarding it as unnecessary to do so in the light of the first ground succeeding and the proceedings being dismissed.

47. The Attorney General appealed the decision of the trial judge to the Court of Criminal Appeal. The Court of Criminal Appeal upheld the decision of the trial judge in relation to the technical validity of the proceedings. The defendant at the trial filed a Notice of Contention which argued that the Court of Criminal Appeal should not only uphold the decision of the trial judge on the first ground, but should also find that whether the first ground succeeded or not, the proceedings should have been dismissed because the Summons could not be amended, as it did not disclose an offence known to the law.

48. At [131] Bathurst CJ said “It is not strictly necessary to deal with this issue but having regard to the submissions made it is appropriate to do so”. The Chief Justice then gave full consideration to the issue raised by the Notice of Contention and came to the conclusion, summarised above, that because the Summons disclosed no offence known to the law, it was not capable of amendment. The other two members of the Court of Criminal Appeal agreed with Bathurst CJ, without adding any additional reasons or comments of their own.

49. In those circumstances, there were two issues put before the Court of Criminal Appeal for decision. The defendant in the court below successfully defended the Attorney General’s appeal, which resulted in confirmation of the order of the trial judge dismissing the proceedings. The defendant in the court below was also successful on its own argument before the Court of Criminal Appeal that the proceedings should be dismissed for a second reason, being that the Summons could not be amended as it did not disclose an offence known to the law. That issue was fairly and squarely put before the Court of Criminal Appeal for decision, and it decided the matter. It is instructive that the decision in Built has been cited several times since, in various courts, as authority for the conclusion reached by the Chief Justice in Built, which is now relied upon by Customconstruction.

50. I therefore regard Built as a binding authority on the issue presently before this court.

51. Counsel for SafeWork (MFI 2, par 8) drew attention to the decision of the High Court in Broome v Chenoweth (1946) 73 CLR 583. Dixon CJ said at p 601:

“Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J. in Knox v. Bible, and the matter is very fully examined by Clark J. in Davies v. Andrews, where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.”

52. Counsel for SafeWork also referred to the decision of the Court of Appeal in Victoria in Director of Public Prosecutions (VIC) v Kypri (2011) 33 VR 157 where Nettle JA said:

“A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.”

Consideration

53. Counsel for SafeWork drew attention to the fact that the particulars of the Summons in Built were “manifestly deficient” (MFI 2, par 17) as those particulars were equally applicable to a charge under s 8(1) of the OHS Act as to a charge under s 8(2). This can be seen from the reproduction of all of the words of the Summons as set out by Bathurst CJ in [135] in Built.

54. It can be seen from reading “Annexure A” reproduced in [135] in Built, that these particulars did not in any way save the disconnect in the “Description of Offence” part of the Summons, which nominated s 8(2) of the OHS Act, but used words from s 8(1).

55. If the particulars contained in the Summons to the present proceedings were, like Built, similarly ambivalent as to whether ss 19(1) or 19(2) was intended to be the subject of the charge, then the binding authority in Built would suggest that the Summons did not disclose an offence known to the law, and thus could not be amended. However, as pointed out by counsel for SafeWork, there were multiple indications in the Summons in these proceedings to indicate that this was a charge under s 19(1) of the WHS Act and not a charge under s 19(2).

56. Counsel for SafeWork pointed to the following features of the first page of the Summons which indicated that s 19(1) of the WHS Act was the subject of the charge:

1. The “Details of Offence” section of the Summons nominated “Section 19(1)”.

2. The “Statutory Provision Describing Offence” section of the front page of the Summons referred to “ss 19(1) and 32 of the Work Health and Safety Act 2011”.

3. The “Law Part Code” of the front page of the Summons contained the reference “75970”. This was said to be a reference to a charge involving s 19(1) of the WHS Act, and that matter was not put in dispute.

57. Counsel for SafeWork also referred to the following provisions in annexure “A” to the Summons:

1. Paragraph 9 of annexure “A” pleads that “Mr Hoskins was engaged or caused to be engaged by the defendant as he was an employee of a contractor engaged by the defendant to perform work on its behalf”. These words come from the definition of “worker” in s 7 of the WHS Act and are an indication that the charge was to relate to a risk to workers rather than a risk to other persons.

2. Paragraph 10 of annexure “A” said that “Mr Hoskins’ activities, in carrying out the work were influenced or directed by the defendant while he and other workers from Wrigley undertook the work in that they were given direct instructions on where and how to work at the Site”. Again, the words used are a clear indication, it was submitted, that the risk to Mr Hoskins was a risk which existed because he was a worker, rather than another person at the site.

3. Paragraph 12 of annexure “A” referred to “workers”.

4. Paragraph 14 of annexure “A” referred to “workers”.

5. Paragraph 15 of annexure “A” referred to “workers of Custom and Wrigley” who were “undertaking work”.

6. The subheading above par 20 of annexure “A” referred to “the defendant’s duty under s 19(1) of the Act”.

7. Paragraph 20 of annexure “A” referred specifically to Customconstruction having a duty under s 19(1) of the WHS Act and said that the duty was related to the health and safety of “workers”.

8. The subheading above par 21 of annexure “A” referred to “the risk to workers”.

9. Paragraph 21 of annexure “A” referred to the risk being a risk to “workers, in particular Mr Hoskins”.

10. The subheading above par 22 of annexure “A” referred to particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act.

11. Paragraph 22 of annexure “A” referred to the health and safety of “workers, in particular Mr Hoskins”.

12. Paragraph 22c of annexure “A” referred to information, training and instruction to “workers”.

13. Paragraph 22d of annexure “A” referred to supervision of “workers”.

14. Paragraph 22f of annexure “A” referred to ensuring that “workers” used only safe means of access.

15. Paragraph 22g of annexure “A” stated that the defendant should ensure that “workers” did not access roof areas unless appropriate safety measures were in place.

16. Paragraph 22h of annexure “A” referred to the need to implement adequate supervision, training and enforcement practices in relation to “workers”.

17. Paragraph 23 of annexure “A” stated that as a result of the defendant’s failures, “workers, including Mr Hoskins” were exposed to a risk of death or serious injury.

58. Annexure “A” does contain one confounding feature, in par 20. Paragraph 20 says that the defendant had a duty “under section 19(1) of the Act” to “workers, including Mr Hoskins”. However par 20 then concludes by saying that the duty was to ensure that the health and safety of workers “was not put at risk from work carried out as part of the conduct of the defendant’s business or undertaking”. This last quoted phrase comes from s 19(2) of the WHS Act and is not to be found in s 19(1). This is the only element in annexure “A” which casts doubt upon the identification of the charge being based upon the duty in s 19(1) and not s 19(2). It is the same misplaced phrase which also appears in the “Details of Offence” provision on the first page of the Summons. I regard the presence of the phrase in par 20 as another instance of a slip or clumsiness.

59. It is apparent from the decision of the Court of Criminal Appeal in Built that in deciding whether or not a summons discloses an offence known to the law, it is necessary to look at the entirety of the summons, including the particulars included in the summons: Built at [135]-[139]. It is acknowledged by SafeWork that the “Details of Offence” section on p 1 of the Summons is defective. That section of the Summons refers to a duty to “other persons” and not to “workers” as it should, if the charge is truly one under s 19(1) of the WHS Act.

60. Further, words from s 19(2) have found their way into par 20 of annexure “A” to the Summons.

61. However, read as a whole, there are a multiplicity of assertions in the Summons that the duty which has been breached is the s 19(1) duty imposed by the WHS Act, and that the persons who should have been protected by observation of that duty are “workers” rather than “other persons”.

62. This is not a case like Built where the particulars to the summons did not in any way clarify the confusion created by the description of the offence at the commencement of the summons. In the present case, the contents of the entire Summons, including the particulars, when read as a whole, disclose an offence known to the law, being an offence arising from a breach of duty imposed by s 19(1) of the WHS Act. Any other reading of the entire document is unduly restrictive and artificial. No reasonable defendant could be in doubt as to the charge which was to be faced.

63. For those reasons I propose to allow the amendments sought in the SafeWork Notice of Motion filed on 19 February 2025. I will also make an order that the Summons be amended in relation to correction of the expression in par 20 of annexure “A” to the Summons. I will dismiss the defendant’s Notice of Motion filed on 5 March 2025.

64. The parties agree that costs should be reserved.

Orders

65. The orders of the court are:

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 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.

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Amendments

14 November 2025 - Amended at the request of the parties, and to reflect orders made in Chambers on 19 May 2025.

Decision last updated: 14 November 2025