SafeWork NSW v Transform Formwork Contractors Pty Ltd

Case [2025] NSWDC 180

District Court


New South Wales

Medium Neutral Citation: SafeWork NSW v Transform Formwork Contractors Pty Ltd [2025] NSWDC 180
Hearing dates: 4 April 2025
Date of orders: 16 May 2025
Decision date: 16 May 2025
Jurisdiction:Criminal
Before: Strathdee DCJ
Decision:

(1)   The prosecutor is given leave to serve and rely upon at trial further expert technical evidence in the form of an expert technical report.

(2)   The matter will be listed before me on a date to be fixed to assess the viability of the trial dates and to enter orders as regards the service of any expert evidence.

(3)   I reserve the question of costs of this application.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty

COSTS –  costs

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 247G(2)

Justices Act 1902 (NSW), s 66F

Cases Cited:

Director of Public Prosecutions v West [2000] NSWCA 103, 48 NSWLR 647

SafeWork NSW v Mark Duffin [2023] NSWDC 272

Sutherland Shire Council v Benedict Industries [2013] NSWLEC 121

Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97

Category:Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Transform Formwork Contractors Pty Ltd (Defendant)
Representation:

Counsel:
M Scott (Prosecutor)
A Vernier (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Crawford De Carne Pty Ltd (Defendant)
File Number(s): 2024/177652
Publication restriction: Nil

JUDGMENT

Introduction

  1. The prosecutor seeks an order that “if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case” be served by 25 April 2025.

  2. The defendant opposes that order on the grounds that:

  1. The defendant will be prejudiced.

  2. The defendant does not know the case it has to meet.

  3. The prosecutor has not provided any evidence as to the prejudice that it may suffer if the expert report is not allowed to be served.

  4. The prosecutor has failed to provide any reasons for the delay in seeking and serving the expert report.

  5. The service of the expert report will adversely affect the ability of the trial to commence on 8 September 2025.

  1. The prosecutor tendered an affidavit of Sarah Hedger dated 4 April 2025 which became exhibit A. The defendant tendered an affidavit of Angus McPherson dated 1 April 2025 which became exhibit 1.

Brief History of the Proceedings

  1. On 19 May 2022, the incident the subject of these proceedings is alleged to have occurred.

  2. On 13 May 2024, the prosecutor filed the Summons and Statement of Facts to commence these proceedings.

  3. On 30 May 2024, the defendant served its Notice of Appearance.

  4. On 19 June 2024, the prosecutor served the Brief of Evidence in electronic form which did not contain any expert report, nor did it contain any technical report.

  5. The first directions hearing was listed on 8 July 2024. The matter has since been listed for directions on other occasions.

  6. On 19…

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Details
AGLC
SafeWork NSW v Transform Formwork Contractors Pty Ltd [2025] NSWDC 180
Case
[2025] NSWDC 180
Decision Date

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Transform Formwork Contractors Pty Ltd in the Local Court of New South Wales. The prosecution related to alleged breaches of work health and safety legislation, specifically section 27 of the Occupational Health and Safety Act 2000. The alleged breaches involved a risk of death or serious injury to employees and were subject to a maximum penalty. SafeWork NSW sought leave to serve further expert technical evidence in the form of an expert technical report, which was contested by the defendant.

The primary legal issue before the court was whether SafeWork NSW could serve and rely on additional expert technical evidence during the trial. This issue hinged on whether the proposed evidence was necessary to prove the case and whether it was appropriate to allow the evidence to be introduced at such a late stage. The court also considered the impact of the additional evidence on the fairness and efficiency of the trial.

The court found that the expert technical evidence was necessary to establish the case against Transform Formwork Contractors Pty Ltd. It was deemed relevant to the allegations and would assist in proving the breach of the statutory duty under the Occupational Health and Safety Act 2000. The court acknowledged the late introduction of the evidence but concluded that it was appropriate to allow the evidence to be served and relied upon at the trial. The court noted that the additional evidence would not unfairly prejudice the defendant and would aid in the just resolution of the case. The matter was adjourned to assess the viability of the trial dates and to enter orders regarding the service of any expert evidence. The court reserved the question of costs of this application.

Orders

Orders of the court

(1) The prosecutor is given leave to serve and rely upon at trial further expert technical evidence in the form of an expert technical report.

(2) The matter will be listed before me on a date to be fixed to assess the viability of the trial dates and to enter orders as regards the service of any expert evidence.

(3) I reserve the question of costs of this application.

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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