NSW court decision offers guidance on when WHS charges can be amended

The decision provides guidance on when work health and safety (WHS) charges can be amended, particularly where new control measures are introduced late in proceedings.

Pinsent Masons acted for Chess Engineering Pty Ltd in successfully opposing the substantive amendments, with Ryan Coffey briefed as counsel.

In this case, the Industrial Court of New South Wales (NSW) refused SafeWork NSW leave to make further substantive amendments to its WHS prosecution against Chess Engineering, finding that the changes introduced new allegations after the statutory limitation period had expired and would prejudice the defendant. The amendments were proposed approximately 11 weeks before trial.

The decision followed an earlier contested amendment application in SafeWork NSW v Chess Engineering Pty Ltd [2026] NSWIC 21 (Chess No 1), in which the court permitted SafeWork to amend the charge.

In that earlier application, the court held that the proposed amendments did not change the nature of the allegation or introduce new allegations, but remained broadly consistent with the existing charge. In considering prejudice, the court also placed weight on the timing and circumstances of the application, including that the amendments had been communicated before Chess entered its plea and that more than five months remained before trial.

The court found that the second application arose in materially different circumstances.

SafeWork sought to introduce further reasonably practicable measures concerning consultation with the operator of a site at which the incident occurred, verification of information provided to security workers, and notification of ongoing work.

Those proposed measures differed from the existing allegations, which mainly concerned physical safety measures designed to separate workers from mobile plant, including barricades, isolation of roller doors and the use of a spotter.

Chess opposed the second application on two grounds:

• First, the proposed amendments introduced new allegations after expiry of the statutory limitation period; and
• Secondly and in the alternative, leave should be refused in the exercise of the court's discretion because of prejudice to Chess.

The significance of the statutory limitation period

Section 20 of the Criminal Procedure Act 1986 (NSW) confers a broad power to permit amendments. However, that power must be considered within the statutory framework governing the particular prosecution.

The judge observed that the principles discussed in two earlier cases, SafeWork NSW v Solveco Pty Ltd (No 1) and SafeWork NSW v BSA Ltd, were drawn substantially from authorities concerning indictable offences, to which no limitation period applies.

Those authorities had not expressly considered the interaction between statutory limitation periods, the nature of the proposed amendments, and the requirement to identify the acts or omissions said to constitute a WHS offence, as addressed in Kirk v Industrial Court of New South Wales (2010).

The judgment indicates that, in summary regulatory proceedings, the power to permit amendments must be considered alongside any applicable statutory limitation period. The critical question is whether the proposed changes simply clarify the existing charge or introduce new allegations that are subject to the statutory time limit.

Whether the proposed control measures constituted new offences 

The court considered whether the additional measures simply provided more detail about the existing charge or substantially changed its nature.

It accepted that the proposed requirements were different in character from the physical precautions previously pleaded. The court distinguished the proposed consultation obligations from the measures already pleaded and concluded that the amendments would expand the scope of the allegations.

In reaching that conclusion, the court also considered SafeWork's expert evidence and found that the consultation, verification and notification requirements amounted to new control measures.

The court held that each measure could amount to a separate offence capable of being charged together under s 233(1) of the Work Health and Safety Act 2011 (NSW). However, the ability to charge multiple contraventions together did not displace the limitation period in s 232.

In the absence of an application for leave to commence proceedings outside that period under s 232(2), the additional measures could not be introduced through the amendment application before the court.

The decision reinforces the importance of the principle established in Kirk: the acts or omissions alleged to constitute the breach of a work health and safety duty are central to identifying the offence charged.

Accordingly, where a prosecutor seeks to introduce additional control measures through an amendment, it will be necessary to consider whether those measures merely further particularise the existing allegation or instead introduce additional alleged acts or omissions forming part of the offence.

The court's consideration of prejudice

The court separately considered whether leave should be granted as a matter of discretion. The amendments were proposed approximately 11 weeks before a ten-day trial, after Chess had entered its plea and undertaken substantial preparation.

The court accepted that the additional measures would require further preparation and that the practical constraints facing Chess and its legal team gave rise to prejudice relevant to the company’s right to a fair trial.

Although an adjournment could provide additional preparation time, the court noted that the trial could not be relisted before mid-November 2027, approaching five years after the incident. Such a delay could itself adversely affect the defence, including through deterioration in witness recollection.

The court's reasoning illustrates that an adjournment will not necessarily address prejudice arising from a late amendment. The availability of an adjournment is only one factor to be considered alongside the consequences for the defendant and the proper administration of criminal justice.

Implications for regulatory prosecutions

The decision does not suggest that prosecutors cannot amend regulatory charges or identify additional reasonably practicable measures. Rather, it highlights three important considerations for amendment applications in summary regulatory proceedings.

First, the characterisation of the proposed amendment as a further particular is not determative. The court will consider whether it clarifies an existing allegation or introduces additional acts or omissions said to constitute the offence.

Secondly, the timing of the amendment remains important. The procedural power to amend must be considered alongside the statutory limitation regime, particularly where the amendment concerns additional acts or omissions said to constitute the offence.

Thirdly, prejudice matters. the court will closely examine whether the amendment would unfairly disadvantage the defendant. It will consider the practical effect of the amendment, including the stage of the proceedings, preparation already undertaken, any additional evidence required and the consequences of an adjournment.

There is also an important qualification to the decision. SafeWork had foreshadowed a possible application under s 232(2) for leave to proceed outside the limitation period. That application was not before the court and was not determined.

The court ultimately refused leave to introduce the additional substantive measures, while permitting limited formal amendments. Costs were reserved.

The judgment highlights that a procedural power to amend charges must be considered within the wider statutory framework governing the prosecution.

For WHS and other summary regulatory proceedings, proposed amendments may require careful consideration of the nature of the alleged breach, any applicable time limits, the timing of the application and the practical impact of the amendment on the conduct of the case.

Co-written by Sophie Ray of Pinsent Masons.