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District Court 2 May 2025

SafeWork NSW v Customconstruction Pty Ltd

[2025] NSWDC 148

Other
PROCEDURAL AMENDMENT OF SUMMONS

Citation: [2025] NSWDC 148
Court: District Court of New South Wales (Criminal jurisdiction)
Date: 2 May 2025
Judge(s): Russell SC DCJ

Background

On 25 July 2022, a worker named Angus Hoskins was severely injured after falling from height while performing roofing work at a residential construction site in Avalon Beach, NSW. Mr Hoskins was employed by Wrigley Roofing Co Pty Ltd ("Wrigley"), which had been engaged as a subcontractor by the defendant, Customconstruction Pty Ltd ("Customconstruction"), the principal contractor undertaking the residential construction project.

SafeWork NSW ("SafeWork"), the prosecutor, filed a Summons in June 2024 charging Customconstruction with an offence under the Work Health and Safety Act 2011 (NSW) ("WHS Act"). The charge was framed as a breach of the primary duty of care under section 19(1), which requires a person conducting a business or undertaking ("PCBU") to ensure the health and safety of workers. However, a drafting error in the "Details of Offence" section of the Summons described the duty using language drawn from section 19(2) — which concerns the health and safety of other persons (i.e., non-workers) who may be put at risk from the conduct of the business. The particulars annexed to the Summons, meanwhile, clearly identified Mr Hoskins as a "worker" and outlined the basis for a section 19(1) charge.

SafeWork sought leave to amend the Summons to correct this inconsistency. Customconstruction opposed the amendment and cross-applied for dismissal, arguing that the Summons as originally filed did not disclose an offence known to the law and was therefore incapable of being saved by amendment.

  • Did the Summons, as originally filed, fail to disclose an offence known to the law? Customconstruction argued that the hybrid wording — citing section 19(1) but using the descriptive language of section 19(2) — created a charge that did not exist at law and was therefore a nullity that could not be amended.

  • Does the power to amend under sections 16, 20, and 21 of the Criminal Procedure Act 1986 (NSW) extend to curing this type of defect? Customconstruction contended that these provisions cannot cure a failure to disclose a known offence, relying on Attorney General of NSW v Built NSW Pty Ltd [2013] NSWCCA 299 and related authorities.

  • Should the Summons be read as a whole — including the attached particulars — in determining whether it discloses an offence known to the law?

  • If the amendment was granted, should costs be awarded?

Decision

The court rejected Customconstruction's argument that the Summons failed to disclose an offence known to the law. Russell SC DCJ held that the Summons must be read as a whole, including Annexure A (the particulars), and not confined to the "Details of Offence" section on its first page. Read in that way, the Summons clearly alleged an offence under section 19(1) of the WHS Act: the particulars identified Mr Hoskins as a "worker" within section 7(1)(c), pleaded the factual basis for both section 19(1)(a) and (b), and articulated the conduct said to constitute the breach. The reference to "other persons" in the Details of Offence was a drafting slip — albeit a confusing one — rather than an attempt to plead a non-existent offence.

His Honour distinguished the authorities relied upon by Customconstruction. In Built NSW, the Court of Criminal Appeal addressed a situation where the summons truly failed to disclose any recognisable offence. Here, by contrast, the particulars left no doubt that the charge was one under section 19(1). The court accepted SafeWork's characterisation of the error as a case of "clumsiness in drafting" rather than a fundamental deficiency going to the existence of the charge. The defendant was able to identify the charge it had to meet from reading the Summons as a whole.

Having found that the Summons did disclose an offence known to the law, the court held that the amendment power under sections 20 and 21 of the Criminal Procedure Act 1986 was available to cure the defect. Customconstruction had conceded that if the power to amend existed, there was no discretionary reason to refuse the amendments. The court therefore granted SafeWork leave to amend the Summons.

On the question of costs, the court noted that the need for the amendment arose from SafeWork's own drafting error, and that seeking the amendment was an indulgence. The court ordered SafeWork to pay Customconstruction's costs of and incidental to the amendment application.

Orders Made

  • SafeWork's Notice of Motion to amend the Summons was granted — leave to amend in both respects (the "Details of Offence" wording and paragraph 21 of Annexure A relating to the particulars of risk) was allowed.
  • Customconstruction's Notice of Motion seeking dismissal of the Summons was dismissed.
  • SafeWork was ordered to pay Customconstruction's costs of and incidental to SafeWork's amendment application.

Key Takeaways

  • A summons in a WHS prosecution must be read as a whole, including any annexed particulars, when determining whether it discloses an offence known to the law. A drafting error on the face page is not necessarily fatal if the particulars clearly identify the offence charged.

  • An important distinction exists between a summons that fails to disclose any recognisable offence and one that contains a drafting slip or inconsistency. The former may be beyond cure, while the latter is amenable to amendment under the Criminal Procedure Act 1986 (NSW).

  • Conflating the language of section 19(1) (duty to workers) and section 19(2) (duty to other persons) of the WHS Act in the "Details of Offence" section of a summons creates confusion and invites challenge, even where it does not ultimately prove fatal. The District Court noted that such drafting errors are avoidable and should not recur.

  • Where an amendment to a defective summons is sought, the prosecutor may be treated as seeking an indulgence. Russell SC DCJ ordered SafeWork to bear Customconstruction's costs of dealing with the amendment application, notwithstanding that the amendment was ultimately granted.

  • The limits of the Built NSW line of authority were clarified in this decision. A challenge based on "failure to disclose an offence known to the law" is most likely to succeed where the summons is truly unintelligible or internally contradictory even when read with its particulars, rather than where there is merely an inconsistency between the summary wording and the detailed pleading.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 15, 16, 20, 21
- Work Health and Safety Act 2011 (NSW), ss 7, 19(1), 19(2), 32
- Occupational Health and Safety Act 2000 (NSW), s 8

Cases:
- 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