Citation: SafeWork NSW v Transform Formwork Contractors Pty Ltd [2025] NSWDC 180
Court: District Court of New South Wales
Date: 16 May 2025
Judge(s): Strathdee DCJ
Background
SafeWork NSW is prosecuting a formwork contractor over a workplace incident alleged to have occurred on 19 May 2022. The prosecution commenced in May 2024, and the defendant entered a plea of not guilty in February 2025. The matter is tentatively listed for an eight-day hearing commencing in September 2025.
The prosecution sought leave to serve an expert technical report well after the Brief of Evidence had been filed. That brief, served in June 2024, contained no expert or technical report. The proposed evidence relates to the Alufort formwork system, including how its panel boxes should be installed and whether a piece of plywood could have been physically lifted from the structure.
The defendant opposed the application. It argued that the late service was unexplained, that it would face prejudice in responding within the four-week window proposed by the prosecutor, and that the late addition of expert evidence could jeopardise the September 2025 trial dates.
Legal Issues
- Whether the prosecutor should be granted leave to serve and rely upon expert technical evidence that was not included in the original Brief of Evidence, contrary to the requirements of District Court Criminal Practice Note 16.
- Whether the delay in serving the expert report was adequately explained by the prosecutor.
- Whether granting leave would cause unfair prejudice to the defendant, including its ability to respond and to maintain witnesses.
- How to balance the public interest in determining the prosecution against the defendant's right to a fair trial.
Decision
Strathdee DCJ accepted that the Practice Note governing WHS prosecutions required any expert reports to be served with the Brief of Evidence. No expert report was included when the brief was served in June 2024, and the prosecutor offered no explanation for the omission or for the subsequent delay. The judge described this gap as "a mystery."
Despite this, the court found that expert technical evidence would genuinely assist it in resolving the factual dispute at the heart of the case. No witness saw the worker fall, the worker had no recollection of the incident, and the site was altered before it was properly inspected. The court accepted that, in those circumstances, expert opinion on the operation of the formwork system could assist the trier of fact in determining what was likely to have occurred.
The court acknowledged the defendant's prejudice arguments, including the tight response window, the possibility that witnesses could leave the defendant's employment before trial, and the asymmetry created by the prosecutor having had over two years to prepare. These concerns were real, but the court concluded that granting leave, subject to appropriate orders about timing, was consistent with the case management objectives of dealing with criminal proceedings in a just and timely way.
The court drew on the Court of Criminal Appeal's analysis in Director of Public Prosecutions v West, which confirmed that the discretion to allow late prosecutorial evidence is broad, but must be exercised with regard to the public interest in having the prosecution heard and determined, provided the fairness of the trial is not compromised.
Orders Made
- The prosecutor is granted leave to serve and rely upon expert technical evidence in the form of an expert technical report at trial.
- The matter is to be listed before Strathdee DCJ on a date to be fixed, to assess the viability of the September 2025 trial dates and to make orders regarding the service of expert evidence.
- The question of costs of the application is reserved.
Key Takeaways
- The District Court confirmed that, under Criminal Practice Note 16 for WHS prosecutions, expert reports must be included in the Brief of Evidence served within 28 days of the defendant's Notice of Appearance. Failure to comply requires the prosecutor to seek leave.
- A complete absence of explanation for late service does not automatically defeat an application for leave. The court retains a broad discretion under s 247G(2) of the Criminal Procedure Act 1986 (NSW) to make such orders as are appropriate for the efficient management of proceedings.
- Where direct evidence of a workplace incident is absent, such as when no witness observed the event and the site was altered before inspection, expert technical evidence may be sufficiently probative to justify granting leave despite significant delay.
- Prejudice to the defendant, including a compressed response period and potential difficulties securing witnesses, remains a relevant consideration. Here it did not outweigh the public interest in the prosecution proceeding, but the court flagged it would need to be addressed in subsequent orders about timing.
- The Court of Criminal Appeal's reasoning in DPP v West remains applicable: the general disposition is to allow a prosecution to proceed after a suitable adjournment to overcome prejudice from non-compliance, provided trial fairness is maintained.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 247G(2)
- Justices Act 1902 (NSW), s 66F (repealed)
- District Court Criminal Practice Note 16: Work Health and Safety Prosecutions
Cases
- 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