SafeWork NSW v Chess Engineering Pty Ltd [2026] NSWIC 21 | Case summary | Zoe

NSWNSWIC

SafeWork NSW v Chess Engineering Pty Ltd

[2026] NSWIC 21

Industrial Court|2026-05-27|Before: Paingakulam J

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At a glance

Source facts

Court

Industrial Court

Decision date

2026-05-27

Before

Paingakulam J

Catchwords

CRIMINAL PROCEDURE – application to amend Summons – limitation period – amendments clarify terms of Summons – amendments clarify scope of measures – amendments better expose the case defendant must meet – no unfair prejudice to defendant – fair trial – stage of proceedings – costs reserved

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Catchwords

CRIMINAL PROCEDURE – application to amend Summons – limitation period – amendments clarify terms of Summons – amendments clarify scope of measures – amendments better expose the case defendant must meet – no unfair prejudice to defendant – fair trial – stage of proceedings – costs reserved

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: SafeWork NSW v Chess Engineering Pty Ltd [2026] NSWIC 21

Hearing dates: 21 May 2026

Date of orders: 27 May 2026

Decision date: 27 May 2026

Before: Paingakulam J

Decision: (1) I grant leave to the prosecutor to file an Amended Summons in the form annexed to the Notice of Motion filed on 26 September 2025.
(2) Costs are reserved.

Catchwords: CRIMINAL PROCEDURE – application to amend Summons – limitation period – amendments clarify terms of Summons – amendments clarify scope of measures – amendments better expose the case defendant must meet – no unfair prejudice to defendant – fair trial – stage of proceedings – costs reserved

The following procedural history in this matter is based on the evidence of the parties and is not contested:
On 28 February 2025, this Court issued a Summons in the instant proceedings pursuant to an application filed by the prosecutor on 27 February 2025.
On 27 March 2025, the prosecutor served an electronic Brief of Evidence and Statement of Facts (SOF) on the defendant.
On 27 June 2025, the defendant sent an email to the prosecutor, advising that their position was that the Summons and material contained in the Brief of Evidence did not contain sufficient evidence to substantiate the alleged offence. The defendant stated that it would welcome the opportunity to discuss this concern and would seek a four-week adjournment to facilitate such discussions. Later that day, the prosecutor sent an email to the defendant enclosing proposed orders setting out a timetable for the defendant’s representations, the prosecutor’s response to those representations and the scheduling of a case conference.
At a mention of the matter on 30 June 2025, the Court made consent orders for the progress of the matter.
On 22 July 2025, pursuant to orders made on 30 June 2025, the defendant made written representations to the prosecutor in relation to the charge.
On 12 August 2025, also pursuant to orders made on 30 June 2025, the prosecutor responded to those written representations.
On 8 September 2025, the parties’ legal representatives held a preliminary case conference (Conference) in relation to the matter.
On 11 September 2025, the prosecutor notified the defendant of its proposed amendments to the Summons.
On 22 September 2025, the defendant advised the prosecutor that it did not consent to the proposed amendments.
On 26 September 2025, the prosecutor filed the Motion seeking leave to file the Amended Summons.
On 29 September 2025, the defendant entered a plea of not guilty to the charge. The Motion was stood over for mention on 17 November 2025, and the proceedings were listed for hearing from 7 to 18 December 2026.
On 17 November 2025, the dates for the hearing were changed, and the hearing was listed to commence on 3 December 2026, with an estimated duration of 10 days. A readiness hearing was listed on 5 November 2026 before the Registrar.
On 5 February 2026, the Motion was listed for hearing on 21 May 2026.

Ms Pearn’s affidavit affirmed on 17 November 2025 annexed a copy of the amended judgment in SafeWork NSW v Customconstruction Pty Ltd [2025] NSWDC 148 (Customconstruction), but this judgment was ultimately not relied upon by the prosecution in support of an order for costs of the Motion.
Ms Pearn confirmed that the SOF and Brief of Evidence were served electronically on the defendant on 27 March 2025. Briefly, that SOF provided as follows:
The proceedings concern an incident which occurred on 3 March 2023, when Kellogg (Aust.) Pty Ltd (Kellogg) engaged Chess Engineering to conduct works involving the replacement and installation of new air curtains above the roller doors of loading docks 4 to 8 at Kellogg’s Banksmeadow site (the Site).
The loading dock area in which the air curtains were to be installed had a slight gradient. Accordingly, the Chess Engineering supervisor at the Site, Adam Hollis, requested the use of an Elevated Work Platform (EWP) that could automatically level itself as necessary. This EWP was unavailable on the day of the incident and so was not used.
On 1 and 2 March 2023, Kellogg’s engineering team had erected barricades using engineering or danger tape or had set up plastic cones outside the loading dock where works were to occur. The buttons to activate the roller doors to the loading docks were accessible from outside the building and truck drivers routinely used them to open the roller doors.
There was a damaged bracket above loading dock 7 which needed to be replaced prior to the installation of the new air curtain.
On the day of the incident, Mr Hollis instructed two workers to set up an EWP to replace the damaged bracket. He then left the site to attend to another job. On leaving, he observed that there were no barriers or warning markers in place and the roller doors to loading docks 6 and 7 were closed. Mr Hollis assumed that the absence of barriers was because the works had not yet commenced for the day and did not provide any instructions to the workers about the absence of the barriers. The workers were left to conduct the work entirely unsupervised.
While the two workers were changing the damaged bracket using an EWP, elevated approximately four metres from the ground, a semi-trailer truck arrived at loading dock 7 and the driver pressed the button to gain access. The driver then reversed the semi-trailer truck into loading dock 7, colliding with the EWP. The EWP fell to the ground, throwing the two workers out. They fell approximately four metres to the ground of loading dock 6, suffering significant injuries.
Kellogg did not provide training to workers, including Mr Hollis and the injured workers, about matters including traffic management and working near or around mobile plant.

The defendant relied upon the affidavit of Sophie Gladis Ray, the solicitor at Pinsent Masons with carriage of the matter for the defendant, affirmed on 15 October 2025. After outlining the procedural history of the matter, consistent with [9] above, Ms Ray’s evidence can be briefly summarised as set out below.
During the Conference on 8 September 2025, the defendant’s legal representatives identified what they considered to be fundamental deficiencies in the Summons as part of communicating the defendant’s position on the charge. This included the drafting of paragraph 17(a)(ii) of the Summons, and the use of the term “mobile plant” in circumstances where the injured worker was struck by a vehicle (truck and trailer). The defendant’s legal representative attended the Conference with the expectation that the prosecutor would participate in good faith. The defendant did not anticipate that the prosecutor would use that process to recast its case to address those identified deficiencies.
On 2 October 2025, Ms Ray received an email from Ms Pearn attaching guidance material which did not form part of the Brief of Evidence. The guidance material which formed part of the Brief of Evidence contained various definitions and uses of the term “mobile plant”.
The defendant relied on the prosecutor’s use of the term “mobile plant” in paragraph 13(c) of the Summons in SafeWork NSW v Kellogg (Aust.) Pty Ltd [2025] NSWIC 12 (SafeWork NSW v Kellogg), and the material in the Brief of Evidence, to form the view that the reference to “mobile plant” in paragraph 17(a)(ii) of the Summons did not include the semi‑trailer truck involved in the incident.
Much of Ms Ray’s evidence was in the nature of instructions that she had received concerning the defendant’s submissions in opposition to the Motion. Briefly, those submissions were as follows:
The Amended Summons does not merely clarify the existing allegations but materially alters the nature and scope of the case that the defendant is required to meet.
The prosecutor’s addition of the words “including trucks” represents a substantial alteration to the case which, if allowed, will unjustly prejudice the defendant in terms of legal costs which, as a general proposition, a defendant may not recover even if there is an order that the defendant not be required to pay a specified portion of costs with any orders granting leave to rely on an Amended Summons.
In the alternative, if the Court accepts the prosecutor’s position that the term “mobile plant” includes the truck involved in the incident, then the Amended Summons is not required, and the matter can be determined at trial.

The prosecutor submitted that the proposed amendments are straightforward and do not alter the description of the offence or the nature of the charge. They are confined to paragraph 17 of Annexure A to the Summons, which pleads the reasonably practicable measures that the prosecutor alleges should have been implemented in accordance with the defendant’s duty under s 19(1) of the WHS Act.
The prosecutor contended that the Summons filed in the related proceedings (SafeWork NSW v Kellogg) are irrelevant to the construction of the Summons in the instant proceedings.
The prosecutor submitted that the defendant’s position that “mobile plant” in paragraph 17(a)(ii) of the Summons “did not encompass the semi-trailer truck involved in the incident” should not be accepted when it was clear from the entirety of the Summons, including the pleaded risk, that the proceedings arise from an incident in which a truck entering a loading dock collided with an EWP containing two workers engaged by the defendant. Additionally, the prosecutor pointed to guidance material which makes it clear that in a work health and safety context, “mobile plant” includes vehicles.
The prosecutor’s alternative position was that, even if the amendment were characterised as extending rather than clarifying the meaning of “mobile plant”, it could not reasonably be said to be so substantial as to amount to the bringing of a different charge (G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 at [12], [36], [38] (G.P.I.)). The prosecutor submitted that a defendant has no right to constrain a prosecutor such that a given charge is advanced on one particular basis and no other.
The prosecutor submitted that there is no basis to suggest that the proposed amendments would prejudice the defendant’s right to a fair trial, when it was notified of the proposed amendment prior to entering a plea, and the matter is not listed for hearing until December 2026. The prosecutor pointed to the fact that the only prejudice identified by the defendant concerned the costs which it has incurred in connection with the proceedings. The prosecutor further submitted that it could not be held responsible for any misapprehension by the defendant about the meaning of “mobile plant”, if indeed there was one, having regard to the terms of the Summons, including the pleaded risk and the description of the incident, as well as the guidance material to which I have already referred.
The prosecutor accepted that the discretion to grant leave under s 20 of the CPA must be exercised “appropriately” (Rajendran). In support of its position, the prosecutor relied on the decision of Howie J (with whom Sully and Hidden JJ agreed) in Regina v Lykouras [2005] NSWCCA 8 (Lykouras), a matter in which the trial judge had granted leave under s 20 of the CPA for the Crown to add a further and alternative count to the indictment. In that decision, the Court of Criminal Appeal concluded, at [27], that such amendments are permissible if they do not prejudice the accused’s right to a fair trial. The prosecutor pointed to Russell SC DCJ’s reliance on Lykouras and Rajendran in BSA.
In oral submissions, the prosecutor submitted that amendments of this nature are routinely made in work health and safety matters and that the relevant question is whether the amendments sought would cause the trial to become unfair to the defendant. In circumstances where the defendant was notified of these amendments 15 months before the trial, and the amendments sought will not impact the evidence that is ultimately to be led, the prosecutor contended that there can be no reasonable suggestion of prejudice to the defendant being occasioned by the amendments sought.
In support of that submission, the prosecutor relied on Customconstruction and BSA as matters where the limitation period applied and leave was granted to make amendments to the Summons which were more substantial than the ones sought to be made in the instant matter. In that regard, the prosecutor also relied on G.P.I*.*, in which Hobson JA, in obiter, classified amended particulars which are far more extensive than those in the instant matter as amendments which “do no more than further particularise the earlier particulars”.
The prosecutor reiterated its submission that the defendant knew that the incident giving rise to the charge was a collision between a delivery truck and an EWP and that the measures were directed at the pleaded risk. This was said to be supported by guidance material, including guidance material served on the defendant as part of the Brief of Evidence.
The prosecutor contended that the position taken in the instant matter was no different to that taken in SafeWork NSW v Kellogg. Ultimately, the prosecutor submitted that the failures were pleaded at the time of the original Summons and the amendments amounted to no more than additional clarification.

The defendant pointed to the fact that the limitation period for these proceedings expired on 3 March 2025 and that the prosecutor must obtain the leave of the Court to commence proceedings outside of this period. The defendant also pointed to the fact that it had identified what it considered to be a significant material inconsistency between the alleged risk particularised in the Summons (being struck by a vehicle) and the reference to “mobile plant” in the particulars. The defendant’s evidence was that this was one of the matters which prompted it to communicate with the prosecutor regarding deficiencies in the charge, seeking clarification of the prosecutor’s position.
In attempting to resolve that inconsistency, in addition to considering the Brief of Evidence, the defendant reviewed the Summons in SafeWork NSW v Kellogg*,* in which the prosecutor distinguished between “mobile plant” and “heavy vehicles”, acknowledging that the semi-trailer truck involved in the incident fell in the latter category. The defendant contended that the Summons in the related proceedings, arising from the same incident, is a relevant consideration.
The defendant’s evidence was that it specifically raised at the Conference, as an example of the deficiency of the charge, that the relevance of “mobile plant” to the pleaded risk was unclear. The defendant pointed to the fact that the prosecutor is now seeking to remedy the deficiency without acknowledging that the amendment arises from the disclosure made by the defendant.
The defendant did not accept that a uniform or authoritative definition of “mobile plant” in legislation and guidance material includes delivery trucks. This was said to be underscored by the prosecutor’s distinction between “mobile plant” and “delivery trucks” in SafeWork NSW v Kellogg. The defendant further noted that the guidance material on which the prosecutor seeks to rely in that regard was not the guidance material contained in the Brief of Evidence. Rather, the prosecutor sought to rely on additional material filed in support of the Motion. In the absence of a clear definition of “mobile plant” which includes vehicles, the defendant contended that the Summons fails to clearly articulate the standard required of the defendant. The defendant’s alternative position was that, if the Court accepts that “mobile plant” includes the incident vehicle, then the amendments are unnecessary and the matter can be determined at trial.
The defendant further contended that the inclusion of two additional factual allegations in paragraphs 17(a)(i)(B) and 17(a)(i)(C) of Annexure A to the Amended Summons is not a further particularisation of the existing particulars and instead materially alters the scope of the case the defendant is required to answer. Similarly, the defendant contended that the inclusion of the word “appropriately” in paragraph 17(a) materially alters the threshold that the defendant is required to meet. The defendant contended that, absent the inclusion of “appropriately”, the defendant was required to demonstrate compliance with a defined standard and that its inclusion introduces a new undefined standard.
The defendant contended that, in the work health and safety legislative context, paragraphs 17(a) and 17(b) (sic, presumably 17(c)) of Annexure A to the Amended Summons are essential factual ingredients of the charge. It relied on Park v R [2010] NSWCCA 151, in which McClellan CJ at CL at [39], relying on the High Court’s decision in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at p 519 per Mason CJ, Deane and Dawson JJ, held that it is the Crown’s obligation to “identify the essential factual ingredients of the offence.” The defendant also pointed to the difference between matters dealt with on indictment before a jury and matters dealt with summarily by a superior court and with reference to a statutory limitation period.
The defendant accepted that one of the questions for determination is whether it will be unfairly prejudiced by the amendments. In that regard, the defendant submitted that the fundamental purpose of particulars is to ensure that a defendant is afforded natural justice by being informed of the case against it. The defendant relied on the decision of Evatt J in Johnson at p 497:

The defendant also relied on the decision of Regina v Janceski [2005] NSWCCA 281 at [232] (Janceski) in which the Court emphasised that the presenting of an indictment is “the most fundamental of the procedures that attend a criminal trial for an indictable offence.”
The defendant contended that the amendments in the Amended Summons would change the case that it was required to answer, causing it unjust prejudice. That prejudice was said to be compounded by the fact that permitting these amendments after the expiry of the statutory limitation period in s 232 of the WHS Act undermines its intended purpose of ensuring timely resolution of matters and protecting defendants from stale claims. In support of its position, the defendant relied on the decision of Nettle JA in Kypri, (set out at [34] above as part of the principles enunciated by Scotting DCJ in Western NSW LHD).
The defendant submitted that, because the amendments introduce new essential factual ingredients, it will be required to conduct additional investigations, obtain further expert evidence on traffic management and EWP safety, re-interview witnesses and re-visit site documentation. These tasks were said to impose significant time and cost burdens which would have been avoided if the matter had been properly pleaded from the outset. Further, in that event, the defendant stated that it may have taken a different position and entered a different plea.
The defendant submitted that the above prejudice is exacerbated by Kellogg’s guilty plea, which was said to increase the risk of unfair inference and of reputational harm. Finally, the defendant contended that permitting the prosecutor to rely on deficiencies disclosed by the defendant in good faith in the context of a court ordered conference “penalises the defendant for its transparency and creates an asymmetry in the litigation process.”
In summary, the defendant submitted that to allow the amendments in all of the circumstances of this case would “undermine the principles of natural justice, erode the legislative intent behind the limitation period and compromise the integrity of the criminal process.” It therefore submitted that the Motion should be dismissed.
In addition, the defendant sought an order that the prosecutor pay the costs of and incidental to, the Motion, whether or not it is successful. The amendments sought were said to arise from deficiencies in the drafting of the Summons and the defendant submitted that it was justified in opposing the Motion. The defendant pointed to the costs that it has incurred in responding to a Motion that would not have been required if the matter had been properly pleaded from the outset.
In oral submissions, the defendant accepted the proposition, in G.P.I. at [36] that an application to amend can be granted “unless it were to substantially change the nature of the charge.” The defendant contended that this was what the prosecutor, by its amendments was seeking to do.
In support of its position, the defendant contended that because the pleadings in SafeWork NSW v Kellogg, for which the application for a Summons was filed at the same time as that for the instant proceedings, made a distinction between traffic and mobile plant, the prosecutor had considered that matter in the instant proceedings and elected to bring proceedings in respect of mobile plant rather than traffic. The defendant contended that the prosecutor should not be permitted to amend the charge, to instead deal with trucks, after the defendant had raised the incongruence during the Conference as a reason for which the charge ought to be withdrawn.
The defendant further contended that the Court should not grant leave to file the Amended Summons because such changes are “routinely made” in work health and safety matters, as submitted by the prosecutor. The defendant contended that the Court should instead give effect to the limitation period as intended by the legislature and that there must be an expectation that prosecutors bring a proper case at the time when the proceedings are commenced. The defendant accepted that the position might be different if there had been forensic or scientific evidence which came to light only after proceedings had commenced, but noted that the amendments sought to be made by the prosecutor in this case were not of that nature.
The defendant also relied on the evidence that it had written to the prosecutor, asking the prosecutor to identify the evidentiary basis for each particular, precisely because the evidence did not correspond to the particulars of the charge and the prosecutor declined to do so. The defendant stated that it’s legal representatives had attended the Conference expecting to meet a case concerned with the risk associated with mobile plant with the roller shutter door closed. The defendant pointed to the evidence that the prosecutor sought to amend the charge only after the defendant disclosed the inconsistency between the measures and the risk pleaded issue at the Conference. The defendant contended that this was a tacit admission that there was a problem with the prosecutor’s case.
The defendant contended that the introduction of the measures pleaded in paragraphs 17(a)(ii)(B) and 17(a)(ii)(C) widened the scope of the charge against them as there was nothing in the measures as originally pleaded which dealt with isolation of the roller door or the use of a spotter. In support of its position, the defendant contended that the pleaded risk dealt with factors outside the premises whereas the measures in the Summons were all directed to factors inside the premises, absent the amendments which the prosecutor now seeks to make, and that this was the distinction between the case against it and the case against Kellogg.
The defendant did not accept that the inclusion of those matters in the SOF was a factor that would entitle them to include it in the pleadings at this point. The defendant pointed to the fact that there was no explanation given by the prosecutor as to why these measures were not pleaded earlier and that a further review of the evidence should not permit them to expand the scope of the charge after the limitation period had expired.
The defendant submitted that the inclusion of the word “appropriately” in paragraph 17(a) introduced ambiguity into the charge but ultimately accepted that it would be implied in any event. The defendant submitted that adding the word “including” in paragraph 17(a)(ii) left it open to the prosecutor to continue to expand upon the pleadings, particularly if the view was taken that the prosecutor could continue to add details to the particulars at this point in proceedings.
Finally, the defendant submitted that the Court’s consideration was not limited to whether the amendments prejudice the defendant’s right to a fair trial. The defendant contended that a consideration of the interests of justice required the Court to take into account the prejudice occasioned to the defendant by the proposed amendments. That prejudice was said to be an expansion of the scope of the charge by the prosecutor after the defendant pointed out the problems with the charge as drafted during the Conference.
The defendant initially sought its costs of the Motion, relying on the decision in Customconstruction. At hearing, the defendant instead sought its costs of the Motion pursuant to s 257F of the CPA. The defendant contended the requirement to deal with the Motion gave rise to an adjournment of the proceedings and the conduct of the prosecutor in seeking to amend the Summons was unreasonable. The costs of the Motion were therefore said to be the costs of the adjournment.

Kirk made clear that the pleaded measures are essential to the charge, as it is the acts or omissions there pleaded which give rise to the offence. As noted at [28] above, s 232 of the WHS Act provides a two year limitation period for the bringing of a charge. I agree with the decision of Scotting DCJ in Western NSW LHD at [62], that changes to the pleaded measures which clarify the allegations against a defendant and “better expose the case to be met by the defendant” should be allowed. Measures which “introduce a number of new and expanded allegations” should be rejected: Western NSW LHD at [63].
I also agree with Scotting DCJ that the SOF can be considered in determining the meaning and scope of the pleadings: Western NSW LHD at [51]. However, that does not give a prosecutor carte blanche to introduce new measures after the expiry of the limitation period, to include matters contained in the SOF which did not previously form part of the charge. Consideration should still be given to the materiality of the changes in respect of which leave is sought.
The trial is listed to commence on 3 December 2026. That is a circumstance to consider in determining whether it would be appropriate to grant leave to the prosecutor to file the Amended Summons. Subject to what follows, changes permitted more than five months in advance of the start of the trial will not prevent the defendant from having a fair trial. In that regard, I note that the prosecutor’s proposed changes were notified to the defendant in September 2025, before the defendant entered its plea of not guilty.
The prosecutor provided no explanation for why the proposed amendments were not included in the Summons, when the proceedings were commenced. I therefore assume that any evidence going to that issue would not assist the prosecutor’s application: Browne v Dunn (1893) 6 R 67.
The measures pleaded were intended to eliminate or minimise the pleaded risk, which is set out above at [7], arising as a result of the incident described in paragraphs 14 and 15 of Annexure A to the Summons, set out above at [8].

It was apparent from both the pleaded risk and the SOF served with the Brief of Evidence in March 2025 that the charge relates to an incident involving a semi-trailer colliding with an EWP. The pleaded measure concerning the separation of workers from “mobile plant” should be interpreted consistent with the risk which it was intended to address in light of the SOF. The proposed amendment simply makes explicit what should already have been obvious.
I reject the defendant’s submission that the Summons which commenced proceedings against Kellogg demonstrates that the prosecutor made a conscious choice to confine the charge against the defendant to matters concerning the EWP. The measure concerning the separation of workers from mobile plant makes little sense in that context. The workers were required to stand on the EWP to perform works at height. I reject the proposition that the measure was directed to a risk of workers being injured by a moving EWP such that a control measure was required to separate them. Such a scenario has no connection either with the incident pleaded in paragraphs 14 and 15 of the Summons or the SOF.
Similarly, the measure concerning the erection of barricades and signage needs to be read in the context of the incident pleaded in paragraphs 14 and 15 of the Summons and the SOF, and not in isolation. There is nothing in either the Summons or the SOF which relates to a risk posed to workers such that barricades and signage were required to separate workers from the EWP, particularly as the EWP was required to enable workers to safely install the air curtains.
This characterisation of the charge as concerning the EWP was at the core of the defendant’s submission that the amendments materially change the nature of the charge. It was this characterisation of the charge which underpinned the defendant’s submission that the risks, as originally pleaded, dealt with matters inside the loading dock whereas the amended charge extended to matters outside it. As I reject the submission that the prosecutor had originally intended to confine the charge to the EWP, and only after meeting with the defendant decided to extend it to the operation of the truck, the defendant’s claim about the material alteration of the charge largely falls away.
In particular, this addresses the complaint that the amendment to include a definition of “mobile plant” in the Amended Summons followed the disclosure by the defendant at the Conference of what was said to be an inconsistency between the pleaded risk and the measures required to control it. The defendant pointed to the expanded nature of the proposed charge arising from those disclosures as the unfair prejudice that would be occasioned to it by permitting this proposed amendment. However, it has always been plain that the real matter in issue in these proceedings is whether the defendant had reasonably practicable safety systems, supervision and training in place to eliminate or minimise the risk posed by moving vehicles in the workspace.
That the proposed amendment arose from a disclosure made by the defendant at the Conference is a relevant circumstance which the prosecutor failed to disclose. The amendment was presumably designed to eliminate the characterisation that the defendant sought to make of the prosecution case. Loss of a tactical advantage is not a reason to refuse to grant leave to the prosecutor to make this amendment. Allowing the amendment, to clarify the scope of the measure, will create efficiencies at hearing in that it will eliminate the need for argument about whether delivery trucks come within the term “mobile plant”.
I find that the change is one that clarifies the case against the defendant and better exposes the case against it and should be allowed. It is clear when the Summons and the SOF are viewed together that the measure was intended to address the separation of the workers from delivery trucks. It is in the interests of justice that the substance of charges brought in connection with an incident where two workers were seriously injured be dealt with by the Court, and that this occurs in the most efficient manner possible. I grant leave to the prosecutor to make this amendment.

The position with paragraphs 17(a)(ii)(B) and 17(a)(ii)(C) is less clear. There is no doubt that these proposed amendments introduce additional requirements to be addressed by the defendant’s safety system for separating workers from mobile plant to those contained in the Summons. However, the nature of the allegation remains broadly the same, in that the additions go to the content of that safe system of work in place at the time of the incident. In that respect, they do not introduce entirely new allegations as was the case in Western NSW LHD*,* or the defendant’s hypothetical of introducing measures associated with electrical or psychosocial matters.
Further, the Summons as originally drafted provided little information about how the safe system of work should have addressed risks associated with the work to be performed. These proposed amendments better expose the case to be met by the defendant in that they provide clarity to the defendant and the Court about the requirements that the defendant is expected to meet. They will therefore assist in the efficient conduct of the trial. They incorporate control measures expressly raised in the SOF.
The defendant has accepted that, in the event that these amendments were to be permitted, there is sufficient time between now and the trial for the defendant to address the additional measures as part of its case. It is difficult to see that it could be otherwise, as the defendant’s safe system of work to perform the work giving rise to the incident was already a matter in issue. That system of work is unchanged. Accordingly, I grant leave to the prosecutor to make the amendments sought.
The insertion of the word “including” before paragraph 17(a)(ii)(A) is proposed as a consequence of the addition of paragraphs 17(a)(ii)(B) and 17(a)(ii)(C). As I have allowed leave for the prosecutor to include those paragraphs in its Amended Summons, I grant leave to the prosecutor to make this amendment also. This should not be interpreted as an invitation to the prosecutor to add further to the requirements of the safe system of work which the defendant was required to have in place at the time of the incident. Any such proposed amendments will not have the same capacity to provide clarity to the measure and therefore efficiency to the conduct of the trial.

SafeWork NSW v Chess Engineering Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

JUDGMENT

Amendments sought by the prosecutor

Procedural history

Evidence on the Motion

Prosecutor’s evidence

Defendant’s evidence

Relevant law

The power to amend

Whether amendments should be permitted

Submissions

Prosecutor’s submissions

Defendant’s submissions

Prosecutor’s reply

Consideration

Insertion of the word “appropriately” in paragraph 17(a)

Insertion of the words “(including trucks)” in paragraph 17(a)(ii)

Addition of paragraphs 17(a)(ii)(B) and 17(a)(ii)(C)

Amendment to paragraph 17(c)

Costs

Orders

Endnote

Parties

Legislation Cited (5)

Cases Cited (28)