SafeWork NSW v Transform Formwork Contractors Pty Ltd

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:

3. The defendant will be prejudiced.

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

5. 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.

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

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

8. 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

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

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

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

7. 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.

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

9. On 19 February 2025, the defendant entered a plea of not guilty. I accept that the plea was based on the evidence contained in the Brief of Evidence served by the prosecutor.

10. The matter is tentatively listed for hearing commencing on 9 September 2025 until 18 September 2025 (8 days) before me.

11. In addition to the appearances in this matter, there has been correspondence between the prosecutor and the defendant. A copy of the substantive correspondence is found in exhibit 1.

12. Both parties have provided helpful written submissions to which they spoke.

The Practice Note

13. One of the matters that the court should take into consideration in determining this matter is the application of the case management principles (Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97 at [68]).

14. The District Court Criminal Practice Note 16 - Work Health and Safety Prosecutions (Practice Note) applies to these proceedings, which requires the prosecutor to serve a Brief of Evidence within 28 days of service of the Notice of Appearance.

15. Clause 17(e) of the Practice Note provides that the prosecution Brief of Evidence is to include “any expert reports to be relied on by the prosecutor at the hearing”. No expert reports have been served.

16. I accept that s 247G(2) of the Criminal Procedure Act 1986 (NSW) provides that the discretion of the court is very broad and extends to “may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings”.

17. In my view it follows from the Practice Note that any expert report should have been served with the Brief of Evidence. The defendant asserts that it is too late for the prosecutor to serve an expert report at this stage of the proceedings.

18. Further, the defendant asserts that prosecutor has failed to provide any evidence of the reason why the proposed expert report was not served with the Brief of Evidence, and the prosecutor has failed to provide any evidence why the expert report has not been served since the service of the brief of evidence. This remains a mystery.

Proposed Expert Technical Evidence

19. The report that has been served is a technical report of Assistant State Inspector Shishier (Mr Shishier), which is annexure B to exhibit B, who holds a Bachelor of Engineering, and is part of the SafeWork NSW Technical Team.

20. A brief outline of the proposed expert evidence is set out in pars 9 to 12 of the prosecutor’s Written Submissions. The defendant submits that no one has yet been briefed to provide the expert evidence as the expert has not been named.

21. I accept that the prosecutor has the evidence of the facts in this matter for over two years and the defendant submits that for the prosecutor to commence these proceedings it ought to have had sufficient evidence to support the charge. No evidence is provided by the prosecutor to explain why this proposed expert technical report is now necessary to support the charge. Moreover, the defendant asserts that par 9 of the prosecutor’s Written Submissions purports to set out the issues that the evidence is supposed to deal with.

22. The particular issues about which expert technical evidence is sought to be given relate to the use of the Alufort system manufactured by Faresin which is a type of formwork. In particular, the placements of boxed panels as part of the system of formwork and the method by which those panel boxes should be installed. This will encompass the correct method of attachment of plywood to the box when the formwork deck is formed. A further question that may well arise is does a person have the ability to physically lift a piece of plywood that is secured to a box ie what force would be necessary to do so?

23. I accept that this issue arises from the circumstances of the method of construction and contradictory evidence given to the prosecutor as to whether the relevant piece of plywood was attached and secured to a box on the day of the incident. This is a matter upon which I will be required to make a finding after having received and heard all of the evidence.

Purpose of the Proposed Expert Technical Evidence

24. The expert technical evidence is to be provided to assist the court in understanding the technical aspects of the system of formwork used and what is required for that system of formwork, to properly give effect to its safe application. Further, I accept that the expert technical evidence is to be provided to ensure that I have sufficient information before me to help in my task of determining which is the correct statement of evidence, assisted by the expert technical evidence as to the proper operation of the formwork system.

25. From the defendant’s point of view, the evidence on this issue is not contradictory. Further the defendant asserts that it seems impossible for an expert to give any evidence on whether the piece of ply was attached and secured to a box on the day of the incident unless the expert was there at the time, saw the ply being attached and then examined the ply. It is alleged that this was not so.

26. This argument to my mind is critical. The defendant has entered a plea of not guilty, and as the trier of fact I must determine what actually happened with regard to the subject incident. There is no evidence at all as to what actually did happen.

27. This is so for two reasons. Firstly, no-one saw Mr Liam Doronzo fall, and he has no recollection of what happened. Secondly, the site where the incident occurred was altered after the fall, but before the site was inspected by an appropriately qualified SafeWork NSW employee.

28. In assessing the totality of the evidence, I will have to work out what is likely to have occurred. Given that there is no direct evidence, I believe that an expert opinion would be of assistance to the court in coming to a conclusion as to the guilt or otherwise of the defendant.

Prejudice

29. Prejudice to both the prosecutor and the defendant are matters relevant to my considerations.

30. The defendant asserts that what is more significant is the ability of the defendant to respond to the expert technical report. The prosecutor has proposed that the defendant have four weeks to provide expert evidence in response. This is prejudicial, it is said, to the defendant especially in the situation where the prosecutor has had more than two years to put on its expert technical evidence.

31. It is the defendant’s proposition that the prosecutor proposes to include in the expert technical report evidence of “the ability of a person to lift a piece of plywood that is secured to a box ie what force would be necessary to do so” (prosecutor’s Written Submissions at [9]). This seems to be scientific-type evidence which is not within the knowledge of the defendant. Nor is it within the knowledge of the prosecutor.

32. Finally on the issue of prejudice, the defendant submits that there may be some employees who could be called as witnesses by the defendant, but have left their employment with the defendant. I acknowledge that the defendant may have increased difficulty in calling a particular witness if the witness is no longer an employee, as they may choose not to co-operate or provide instructions. If the expert technical report causes delays, it is possible that other employees who may be called as witnesses could also leave their employment with the defendant, which may prejudice the defendant. However, that is not the only consideration that I must have regard to, as the same may occur with prosecution witnesses.

33. This matter has been tentatively set down for trial by me for the days 9 to 17 September 2025 before me. The expert technical report will have been served on the defendant for more than five months by the time of trial.

34. As set out above, the expert technical report is of narrow scope and deals with matters that should already be in the knowledge of the defendant.

35. In the circumstances of this matter, it is difficult to see how any prejudice can fall upon the defendant by the prosecutor relying upon the proposed report.

Discretion

36. His Honour Judge Russell SC in the matter of SafeWork NSW v Mark Duffin [2023] NSWDC 272 dealt with an interlocutory matter of similar effect to the one before the Court. At pars [42] through to [45], his Honour refers to, in detail, the Land and Environment Court judgment in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 and the later judgment in Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) in the following terms:

*“*42 Pursuant to leave granted to both parties, the prosecutor provided a short note concerning the decision in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121. A defendant had objected to the prosecutor being allowed to serve additional evidence, in the form of supplementary affidavits, after the defendant had served its Notice of Defence Response in accordance with the case management provisions of the CP Act. The defendant argued that it was not the purpose of the disclosure orders “to permit the defendant’s disclosure to then be used by the prosecutor as a springboard to file additional evidence”.

43 The court rejected this argument and granted leave for the prosecutor to file the additional evidence. The court said at [28]:

‘By analogy, it may be said that, subject to the Court’s control and supervision, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant’s objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings.’

44 The court also said at [33] and [34]:

‘33. The legislative scheme by which each party gives early notice of objections to the admissibility of evidence, gives the other party the opportunity, by filing timely supplementary evidence-in-chief, to meet the objections (if it can), thereby avoiding disruption at, and possible adjournment of, the trial if such objections were not taken until the trial. The prosecution cannot impermissibly split its case by calling such evidence after the defence case: The Queen v Chin [1985] HCA 35, (1985) 157 CLR 671 at 684-685.

34. On discretion, it is true that the prosecutor is taking advantage of the defendant's disclosure to, as the defendant puts it, ‘patch up’ the prosecution case. But it is not doing so because its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is the product of the statutory scheme. The proposed evidence is supplementary to that already filed. Although it is substantial and the defendant has not yet had the opportunity to analyse it in detail, the defendant can and should be protected in that regard by a timetable that gives it a fair opportunity to analyse it in detail. The defendant will incur additional costs, but the defendant can and should be protected by an order, which the prosecutor proposes, that protects it in respect of costs thrown away.’

45 Senior Counsel for SafeWork, in the same note, gave reference to Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97 at [68] where the court said:

‘From the available caselaw, it would appear that the touchstone for the exercise of the court’s discretion to grant leave to rely on further evidence under the Division 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave [and] application of case management principles, having regard to the efficient dispatch of court business.’ “

37. As can be seen from his Honour’s judgment, his Honour determined to follow the approach of the Land and Environment Court as set out in the cases.

38. Of particular note is the quote set out in par [45] above which in short form describes the exercise of the court’s discretion being that of fairness or justice as between the parties. The court goes on to deal with a variety of factors which will point towards that issue of fairness or justice.

39. In Director of Public Prosecutions v West [2000] NSWCA 103, 48 NSWLR 647, the Court of Appeal considered s 66F of the Justices Act 1902 (NSW) (now repealed). That section of the Justices Act created a discretion for magistrates to allow for matters such as late service of evidence by a prosecutor. At par [24] the Court of Criminal Appeal states in part:

“(h) However (and subject to s66F(3)), the magistrate may, and on the application of or with the consent of the defendant must, dispense with the requirements of subs (1) on such terms and conditions as appear just and reasonable (s.66F(2)). The judicial discretion is a broad one, but is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur.

…

(m) It is possible to conceive of situations where it would not be just or reasonable to grant to a non-complying prosecuting authority an adjournment and extension of time pursuant to s66G. However, the general thrust of 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised; Ridgeway v The Queen (1995) 184 CLR 19 at 32 and 75.”

40. It is submitted that by granting the prosecutor leave to rely upon the proposed expert technical report, the court is acting in accordance with the purposes of the Practice Note as described in cl 4(b) of the Practice Note:

“(b) Set out the case management procedures and process for the preparation and for the conduct of trials and sentence hearings to ensure the criminal proceedings are dealt with in a just and timely way…”

Orders

41. I order that:

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

43. 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.

44. I reserve the question of costs of this application.

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