SafeWork NSW v Boral Cement Limited (No.1)

Category: Procedural rulings

Parties: SafeWork NSW (Prosecutor)
Boral Cement Australia Limited (Defendant)

Representation: Counsel:
J Stratton SC / B Docking (Prosecutor)
A Moses SC / C Magee (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Ashurst Australia (Defendant)

File Number(s): 2024/54403

JUDGMENT

Introduction

1. On 13 February 2022 Mr Douglas Bennett was working at the Boral Cement Facility located at Taylor Avenue in New Berrima. Work was being done on a conveyor. The conveyor belt went into free run, over sped and a fluid coupling exploded. Mr Bennett suffered severe injuries when he was struck by metal from the exploding coupling.

2. On 9 February 2024 SafeWork NSW (SafeWork) filed a Summons charging Boral Cement Limited (Boral) with a breach of s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act).

3. On 9 February 2024 SafeWork filed a Summons charging Fenner Dunlop Australia Pty Ltd (Fenner) with a breach of s 19(1) of the WHS Act.

4. On 9 February 2024 SafeWork filed a Summons charging Nepean Engineering and Innovation Pty Ltd (Nepean) with a breach of s 19(1) of the WHS Act. Nepean pleaded guilty and was sentenced by me on 21 October 2025: SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411 (the Nepean Judgment).

5. Boral and Fenner have pleaded not guilty. A joint trial is listed to commence before me on 27 October 2025, with an estimate of four weeks.

Application For Disqualification

6. On 23 October 2025 Boral made an oral application for me to disqualify myself from sitting as the trial judge. The application arose out of the Nepean Judgment. The application was made on the basis of apprehended bias, not actual bias.

Legal principles concerning disqualification for apprehension of bias

7. Senior Counsel for Boral handed up written submissions (MFI 8) which helpfully summarise the principles applicable to an apprehension of bias application. I respectfully adopt that summary (MFI 1, par 3.1). Omitting citations, those principles are:

8. It is fundamental to the common law system of adversarial trial that the trial is conducted by an independent and impartial tribunal.

9. So important are the principles of independence and impartiality that even the appearance of departure from those principles is prohibited, lest the integrity of the judicial system be undermined.

10. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge, the governing principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Justice should be done and be seen to be done.

11. The fair-minded lay observer is not assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge. The fair-minded observer is not conceived of as a lawyer, but rather a member of the public that is served by the court.

12. The fair-minded observer test is an objective test and does not require an assessment of the state of mind of the judge, as is necessary in an inquiry about actual bias. The test is essentially a question of fact to be decided in accordance with the circumstances of a particular case and it is necessary to consider it in the context in which the decision-maker exercises power.

13. The question is of possibility (real and not remote) not probability. No attempt need be made to inquire into the actual thought processes of the judge. It is the court’s view of the public’s view, not the court’s own view, which is determinative.

14. The test has two limbs. Firstly, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

15. The apprehension of bias principles admits the possibility of human frailty. Its application is as diverse as human frailty. Each case must be considered by reference to the totality of its own circumstances.

16. While there are no set categories of what will amount to an apprehension of bias, the four main categories are: interest, conduct, association or extraneous information. Boral relies on the second category. The High Court has said (MFI 8 par 3.2) that:

“The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias.”

9. In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 153 the majority judgment said at [23]

“How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.”

The nature of the Nepean Judgment and the context in which it was made

10. As previously recited, Nepean pleaded guilty and came before the Court for a sentencing hearing. The hearing was a “paper” hearing in that the evidence consisted of a sentence tender bundle prepared by SafeWork, and unchallenged affidavit evidence given by the National Safety Manager of Nepean. No person gave oral evidence.

11. The facts upon which Nepean was to be sentenced were set out in a Statement of Agreed Facts, which formed part of the prosecution sentence tender bundle.

12. The agreed facts were reproduced in pars 7 – 114 of the Judgment. Subject to some minor corrections made to grammar and syntax, the agreed facts were simply reproduced in the Nepean Judgment, as the findings of fact made to enable the court to sentence Nepean.

13. In GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30] the High Court said that the sentencing judge must decide the sentence to be imposed, and for that purpose must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence or formally admitted, as in an agreed statement of facts.

14. In the Nepean Judgment, all of the facts which were found came from the agreed facts which were put forward, effectively by both parties, rather than by contested evidence. There was no need, in preparing the Nepean Judgment, to assess the credibility of witnesses, or to choose between competing versions of events.

15. The Nepean Judgment recognised that while SafeWork and Nepean had agreed on a set of facts, those facts, and the submissions based upon them, had no role to play in the forthcoming joint trial of Boral and Fenner. Paragraph [6] of the Nepean Judgment said:

“The parties presented an Agreed Statement of Facts and this material is summarised below. It must be emphasised that these facts are agreed between SafeWork and Nepean for the purposes of the sentencing of Nepean after its guilty plea. These facts cannot and will not have any significance in the later trial of two other corporations charged by SafeWork with offences under the WHS Act. Both those corporations have pleaded not guilty. It goes without saying that the same principle applies to any submissions made by counsel in these proceedings.”

16. There was further recognition that the sentencing was based upon facts agreed between the parties, rather than contested evidence heard and determined by the sentencing judge, at [164] (2) and (10).

Submissions for Boral

17. The written submissions for Boral listed certain findings of fact made by the court in the Nepean Judgment (MFI 8, pars 4.4 and 4.5). The ultimate submission for Boral was that these findings in the Nepean Judgment could cause a fair-minded lay observer to have the concern that I might decide the Boral trial other than on its legal and factual merits.

18. It was submitted that it is “self-evident that a fair-minded lay observer might reasonably apprehend that the trial judge may not bring an impartial mind to the resolution of the findings of fact which the judge will be required to decide in the trial” (MFI 8, par 4.7).

19. I do not accept that submission. If there had been a contest between witnesses and I had been required to decide who I believed and who I disbelieved, or if there had been contested submissions as to the inferences to be drawn from facts as found, there could well be disquiet in the mind of a fair-minded lay observer that I might not bring an impartial mind to the resolutions of the findings of fact in the Boral trial.

20. However, given the nature of the decision and the context in which it was made (a sentencing judgment in which the findings of fact were presented to the court as a fait accompli) I do not think that the hypothetical fair-minded observer would have any qualms about the ability of any judge to bring an impartial and independent mind to the task of making findings of fact in the Boral trial. The findings of fact in that trial will be made after hearing many witnesses and receiving into evidence many folders of documents. The parties will have every opportunity to make full and complete submissions as to the findings of fact which should be made, based upon the evidence presented at the contested trial.

21. Boral also submitted that it assumed that SafeWork would invite the court to make the same findings of fact relating to Boral and its employees, which SafeWork and Nepean had agreed should form the basis for the imposition of the sentence upon Nepean (MFI 8, par 4.7).

22. That is speculation, and I would expect SafeWork, at the conclusion of a lengthy trial, to base its submissions about fact finding upon the facts presented at the trial, rather than upon an irrelevant statement of agreed facts to which neither Boral or Fenner were a party. The facts which emerge at the Boral trial may well be different to the agreed facts in the Nepean Judgment. Indeed, it would be surprising if no differences emerged.

23. The task of the court in the Boral trial will be to impartially and independently consider the evidence called, and come to factual findings based upon that evidence, and that evidence alone. The agreed facts presented in the Nepean sentencing hearing will form no part of the evidence put before the court in the Boral trial. No fair-minded lay observer would think that the trial judge, hearing four weeks of evidence, is going to make factual findings based upon a long forgotten list of agreed facts in a previous sentencing hearing. In any event, to quote John Maynard Keynes:

“When the facts change, I change my mind – what do you do, sir?”

24. If it were the case that self-evidently a fair-minded lay observer would apprehend bias, where a judge had sentenced a co-offender based upon agreed facts, then there could never be sentencing hearings conducted, in relation to two co-offenders, by the same judge. Yet it happens every day of the week. A fair-minded lay observer would understand that judges, by training and long experience, exclude irrelevant matters from their consideration and deal with a case based upon relevant evidence and upon the merits of that evidence.

25. For the above reasons I will refuse the application for me to disqualify myself from hearing the trial of Boral due to start next Monday.

Orders:

1. Refuse the application made by Boral Cement Limited for me to disqualify myself from sitting as the trial judge in the matter of SafeWork NSW v Boral Cement Limited, a trial due to start on 27 October 2025.
2. Reserve the costs of the application for disqualification.

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