SafeWork NSW v Boral Cement Ltd; SafeWork NSW v Fenner Dunlop Australia Pty Ltd

Catchwords: CRIMINAL PROCEDURE – alleged offences committed by two accused persons arising out of the same circumstances – whether there should be separate trials or a joint trial – joint trial does not give rise to injustice or forensic unfairness – separate trials increase inconvenience to witnesses – separate trials increase costs upon the prosecutor and court – competing considerations of cost and inconvenience to defendants – separate trials are not required in the interests of justice

Legislation Cited: Criminal Procedure Act 1986 (NSW) s 29
Work Health and Safety Act 2011 (NSW) s 19(1)

Cases Cited: McNamara v The King [2023] HCA 36
Roach v R [2019] NSWCCA 160
Symss v The Queen [2003] NSWCCA 77

Category: Procedural rulings

Parties: Proceedings 2024/54403
SafeWork NSW (Prosecutor)
Boral Cement Ltd (Defendant)
Proceedings 2024/54418
SafeWork NSW (Prosecutor)
Fenner Dunlop Australia Pty Ltd (Defendant)

Representation: Proceedings 2024/54403
Counsel:
J Stratton SC / B Docking (Prosecutor)
A Moses SC / C Magee (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Ashurst Australia (Defendant)
Proceedings 2024/54418
Counsel:
J Stratton SC / B Docking (Prosecutor)
N Read (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2024/54403; 2024/54418

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.

Procedural Background

2. On 9 February 2024 SafeWork NSW (SafeWork) filed a Summons charging Boral Cement Ltd (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 has pleaded guilty and a sentencing hearing is listed before me on 13 August 2025.

5. The broad allegations are that Boral:

6. engaged Nepean to perform work on a conveyor belt replacement on bucket elevator EL013, and refurbishment or replacement of the buckets on EL013.

7. engaged Fenner to provide conveyor maintenance services, including assisting with the changing of the conveyor belt, and refurbishment or replacement of the buckets on EL013.

8. Boral and Fenner have pleaded not guilty. The issue for present determination is whether there should be separate trials of the charge against Boral and the charge against Fenner, or whether there should be a joint trial.

9. Boral entered its plea of not guilty first. On 19 December 2024 I made orders that the matter was provisionally listed for a hearing of four weeks before me commencing on 27 October 2025. Directions were made to get the matter ready for hearing, including an order that the matter was listed for a preliminary hearing on 10 July 2025 to confirm the trial dates. When Boral entered its plea, Fenner was still considering its position and had not yet entered a plea.

10. The Fenner proceedings were listed before me on 11 February 2025. A plea of not guilty was entered. Orders were made in accordance with Short Minutes of Order agreed between SafeWork and Fenner. The matter was provisionally listed for a hearing of four weeks commencing on 27 October 2025. Orders were made, similar to those previously made in SafeWork v Boral, to get the matter ready for hearing.

11. On 11 February 2025 I enquired of SafeWork and Fenner whether they knew the attitude of Boral to a joint trial. I made an order directing both parties to speak to representatives of Boral to see whether it had any objection to a joint trial.

12. Boral does object to there being a joint trial. Fenner has changed its position and now also objects to there being a joint trial.

13. In both matters I made an order on 5 March 2025 listing the matter before me on 30 April 2025 to determine whether there should be a joint trial. All affidavits were to be filed and served by 19 March 2025.

Factual Background

12. The Boral Summons and the Fenner Summons both annex a Statement of Facts in nearly identical terms. To understand the factual background for the purposes of the present issue I will summarise the Statement of Facts.

13. Boral operated the cement plant at New Berrima. During an annual shutdown Boral engaged Nepean to provide engineering services in relation to bucket elevator conveyor EL013 at the site. The task to be performed was to remove the old conveyor belt of EL013, complete the installation of a new conveyor belt and refurbish the buckets on the belt.

14. Boral engaged Fenner to provide services associated with the replacement of the belt for EL013, including the joining of the conveyor belt, as part of the work being conducted during the annual shutdown. Fenner sent Mr Bennett to do the job.

15. WGC Cranes Pty Ltd (WGC) was engaged to provide crane services to Boral, to lift the old conveyor belt from EL013 and then lift the new conveyor belt into position.

16. Beumer Group Australia Pty Ltd (Beumer) was engaged by Boral to provide advice in relation to the work being performed on EL013, as Beumer was the original equipment manufacturer.

17. EL013 was used at the site to transport raw material as part of the process of making cement. The EL013 conveyor ran from ground level to level 7, a height of approximately 60 metres. It had a rubber conveyor belt with a steel wire core which was 120 metres long. There were 229 buckets on the conveyor belt of EL013, each weighing approximately 24 kilograms.

18. The drive motor for EL013 was located on top of a 2.2 metre high platform. The drive mechanism consisted of a large 3-phase electrical motor with a Voith Turbo manufactured Fluid Coupling. The coupling was used to transfer rotational power from one shaft to another by the use of transmission fluid.

19. Mr Bennett had been employed by Fenner for 20 years. He was a Level 3 conveyor belt technician. He was engaged to complete the joint in the new conveyor belt for EL013. He was present on site to verify the position of the belt joint, which was scheduled to occur on the day after the incident.

20. In the days prior to 13 February 2022 the old conveyor belt was cut and removed from EL013 using a mobile crane supplied by WCG. On 13 February 2022 the new conveyor belt was to be installed on EL013. Once it was installed a temporary joint was to be made on the belt on the bottom. The conveyor would then be run slowly to locate the joint at the top of the head roller to complete the joint.

21. Initially it was intended that the new conveyor belt was to be lifted into position with all 229 buckets attached. However the weight of the belt with all of the buckets attached was determined to be heavier than the estimate originally provided. As a result, 116 buckets were removed from the conveyor belt so that the weight of the conveyor belt and the head pulley could be lifted. The buckets were not removed in an even order along the length of the belt. The effect of having only half the buckets on the belt was that once the belt was turned over the head pulley of the conveyor, one side of the belt would be weighted while the other side would be empty.

22. The belt was started with the intention that it would move slowly (a process known as “inching and barring”). However, within 30 seconds the conveyor belt began to speed up excessively. The buckets were rotating over the head pulley and speeding up once their weight went to the other side in free fall. A stop button was pressed but the conveyor would not stop. It picked up speed leading to an uncontrolled free run. The coupling started making a very loud noise.

23. The workers ran away from the belt. The coupling exploded and Mr Bennett was hit by a piece of shrapnel. He suffered severe injuries.

24. Investigation reports were created after the incident by SafeWork, Beumer, Boral and Fenner.

The Boral Summons

25. The Boral Summons alleges that seven workers were exposed to a risk of death or serious injury. Two of those workers were engaged by Boral. The other five workers were allegedly engaged by Boral, in that they were engaged by subcontractors at the site. One of those was Mr Bennett. All of the seven workers were in the vicinity of the conveyor belt when the fluid coupling exploded.

26. Paragraph 13 of the Boral Summons pleads particulars of Boral’s failure to comply with the duty under s 19(1) of the WHS Act. The introductory words of par 13 allege that Boral failed to take one or more of 11 pleaded measures to eliminate, or alternatively minimise, the risk.

27. Paragraph 13(a) of the Summons pleads that Boral should have installed, or taken steps to confirm that Nepean installed, the new belt of EL013 without any buckets mounted to it.

28. Paragraph 13(b) of the Summons pleads, as an alternative to par 13(a), that Boral should have used an appropriately weight-rated and sized crane to lift the new belt with all the buckets attached to it.

29. Paragraph 13(c) of the Summons pleads, in the alternative to both par 13(a) and par 13(b), that Boral should have taken steps to confirm that Nepean was providing, maintaining and implementing a safe system of work.

30. Paragraph 13(d) of the Summons pleads that Boral should have prepared and enforced a Safe Work Method Statement (SWMS) or taken steps to confirm that Nepean had prepared and enforced a SWMS for the work on EL013.

31. Paragraph 13(e) of the Summons pleads that Boral should have confirmed that Nepean and/or Fenner was following the instructions for installation provided by Beumer.

32. Paragraph 13(f) of the Summons pleads that Boral should have confirmed that the conveyor belt was in balance before removing or permitting the removal of isolation locks for EL013.

33. Paragraph 13(g) of the Summons pleads that Boral should have taken steps to confirm that Nepean was using chain blocks to prevent free running.

34. Paragraph 13(h) of the Summons pleads that Boral should have confirmed that the coupling and the main drive motor had been uncoupled from the conveyor gear box prior to inching and barring of the belt.

35. Paragraph 13(i) of the Summons pleads that Boral should have implemented and enforced a requirement that where a change in work process led to new potential hazards or risks, work was stopped and an updated risk assessment was conducted.

36. Paragraph 13(j) of the Summons pleads that Boral should have consulted with the mechanical engineer from Beumer (Mr Gill) or confirmed that Nepean had so consulted.

37. Paragraph 13(k) of the Summons pleads that Boral did not adequately take heed of concerns raised by workers regarding: the installation of the new belt on EL013 with some but not all buckets mounted; and what would occur when EL013 was turned on.

The Fenner Summons

38. The Fenner Summons pleads that Fenner exposed its employee Mr Bennett alone to a risk of death or serious injury.

39. Paragraph 12 of the Summons pleads particulars of Fenner’s failure to comply with the duty under s 19(1) of the WHS Act. The allegation is that Fenner failed to take one or more of seven pleaded reasonably practicable measures.

40. Paragraph12(a) of the Summons pleads that Fenner should have confirmed with Boral and/or Nepean that a safe system of work was in place for the work at the site.

41. Paragraph 12(b) of the Summons pleads that Fenner should not have permitted the belt of EL013 to be bump started and/or inched or barred, until confirmation that there was a safe system of work in place.

42. Paragraph 12(c) of the Summons pleads that Fenner should have confirmed with Boral and/or Nepean that the Beumer instructions for installation were being followed.

43. Paragraph 12(d) of the Summons pleads that Fenner should have confirmed with Boral and/or Nepean that the coupling and the main driver motor had been uncoupled from the gear box prior to inching and barring the belt of EL013.

44. Paragraph 12(e) of the Summons pleads that Fenner should have undertaken an adequate risk assessment, or made reasonable enquiries of Boral and/or Nepean to confirm that a risk assessment had been undertaken.

45. Paragraph 12(f) of the Summons pleads that Fenner should have consulted with Mr Gill, the Beumer mechanical engineer, and should have enquired about or otherwise confirmed specific information, instructions and guidance.

46. Paragraph 12(g) of the Summons pleads that Fenner should have taken heed of and listened to concerns raised by Mr Bennett regarding: the installation of the new belt of EL013; and what would occur when EL013 was turned on.

Overlap Between the Boral Summons and the Fenner Summons

47. All three parties put forward submissions based upon their analysis of the differences and similarities between the Boral and Fenner Summonses. I have provided my own summary of the various paragraphs in each summons above. The clearest analysis, with respect, is that put forward by counsel for Fenner in a document marked as MFI 4 entitled “Overlap in Particulars of Boral and Fenner Summonses”. That document said:

“OVERLAP IN PARTICULARS OF BORAL AND FENNER SUMMONSES

Parts Boral of 13(a) to (c) and Fenner 12(a) and (b)

1. Confirming with Nepean that, a safe system of work was in place for the work at site whereby if buckets are mounted to the conveyor belt of EL13, prior to the belt's joining, that:

a. the buckets are mounted and distributed on the belt evenly so that the belt is in balance; and

b. until the belt is in balance, the belt is not inched or barred;

Parts of Boral 13(e) and Fenner 12(c)

2. Confirming with Nepean that the instructions for installation in the Beumer Group Bucket elevator Installation Instructions sections 5.3.8 and 5.3.9 of document BA- 619080046-en dated 2019-08-05 were being followed, namely, how to mount the buckets to ensure the belt is in balance;

Part of Boral 13(j) and Fenner 12(f)

3. Consulting, enquiring or otherwise confirming with mechanical engineer Jagdeep Singh Gill Gurcharan Singh aka Mr Jack Gill, specific information, instruction and/or guidance regarding the following prior to lifting the new belt into position:

a. ...

Part of Boral 13(k) and Fenner 12(g)

4. Adequately taking heed of, listening to and/or addressing concerns raised by Mr Bennett [to it] regarding the installation of the new belt of EL13 with some buckets mounted, and what would occur when EL13 was turned on.”

48. I accept the analysis in MFI 4 as accurate. It can be seen straight away there are many allegations against Boral in the Boral Summons which are not made against Fenner in the Fenner Summons.

Evidence for SafeWork

49. SafeWork relied upon the affidavit of its solicitor Ms Hu dated 19 March 2025 (PX 1).

50. Ms Hu said that the prosecutor would be calling against each defendant:

51. 23 or 24 lay witnesses (depending upon whether one worker could be located).

52. One inspector from SafeWork.

53. One independent mechanical engineering expert.

54. The affidavit annexed a copy of a table headed “Prosecutor’s List of Witnesses as at 19 March 2025”. The list provided the name of each prospective witness, and the organisation from which that witness came. The list also indicated where the person was located and how far they lived from Sydney. The list contained details of the “indicative purpose” in calling the witness. The list said that all witnesses were to be called against both defendants.

55. The lay witnesses are from the following organisations:

56. One (Mr Gill) from Beumer

57. Ten from Boral

58. Three from Fenner

59. Three from WGC

60. Seven from Nepean.

61. Ms Hu indicated that the number of prosecution witnesses might increase if there was a dispute about the provenance of documents or the actual injuries suffered by Mr Bennett.

62. Ms Hu annexed to her affidavit the following documents, which are said by SafeWork to be relevant to both prosecutions, because they directly relate to the incident in which Mr Bennett was injured:

63. The discharge records of South Western Sydney Local Health District relating to Mr Bennett.

64. A copy of the Boral HSEQ Alert dated 13 February 2022 dealing with the incident.

65. A copy of a 15-page Beumer Group Travel Report dated 15 March 2022 by Mr Gill, mechanical engineer, concerning the incident.

66. A copy of the Beumer Group Bucket Elevator Installation Instructions dated 5 August 2019.

67. A colour copy of the Factual Inspection Report dated 14 February 2022 created by SafeWork Inspector Williams.

68. A copy of the Fenner Factual Report dated November 2022 in relation to the incident.

Evidence for Fenner

55. Fenner relied upon the affidavit of Ms L Schafer-Gardiner dated 18 March 2025 (DX 1). Ms Schafer-Gardiner is the solicitor for Fenner. She set out a history of the proceedings, and annexed copies of requests for particulars made to SafeWork and the responses sent by SafeWork. Ms Schafer-Gardiner said that a separate trial was sought firstly because “the issues in the proceedings against Fenner are significantly narrower than those in the proceedings against Boral”.

56. In par 16 of her affidavit Ms Schafer-Gardiner pointed to the following:

57. the different number of workers alleged to have been put at risk in the Boral Summons as opposed to the Fenner Summons.

58. the different allegations of breach of duty against Boral as opposed to the allegations against Fenner.

59. the allegations against Boral being broader and involving a consideration of a wider set of circumstances than those contained in the charge against Fenner.

60. the evidence being led by SafeWork against Boral and Fenner was likely to be different.

61. evidence led by SafeWork in relation to the allegations in pars 13(a), 13(b), 13(c)(iii), 13(f), 13(g) and 13(i) of the Boral Summons would not be relevant to any of the allegations made against Fenner.

62. Ms Schafer-Gardiner said that additional legal costs would be incurred by Fenner and this “would give rise to unfairness and injustice”. Fenner held the view that the proceedings against it could be completed within two weeks of hearing time. It was expected that SafeWork would call fewer witnesses and many of the facts could be agreed. It was said that a separate trial could be run more efficiently and focus on the issues relevant to the charge against Fenner.

63. Ms Schafer-Gardiner pointed out that the hearing length predicted by Boral when its trial was set down was four weeks, which was not an estimate based upon a joint trial. Ms Schafer-Gardiner made a global estimate of additional costs exceeding $200,000 if Fenner should be dealt with by a joint trial.

Joint or Separate Trials

59. Section 29 of the Criminal Procedure Act 1986 (NSW) (the CP Act) deals with when more than one offence may be heard at the same time. Section 29 provides as follows:

“(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances—

(a) the accused person and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—

(a) the accused persons and the prosecutor consent,

(b) the offences arise out of the same set of circumstances,

(c) the offences form or are part of a series of offences of the same or a similar character.

(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.”

60. SafeWork relies upon s 29(2)(b) of the CP Act, submitting that the alleged offences “arise out of the same set of circumstances”. If s 29(2)(b) does apply, the proceedings may not be heard together, if the court is of the opinion that the matters ought to be heard separately “in the interests of justice”: s 29(3).

61. In Roach v R [2019] NSWCCA 160 the court said:

“80 Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression “arise out of” in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165.

81 Section 29(3) Criminal Procedure Act is also important:

‘Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.’

82 In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614; [32].”

62. In Symss v The Queen [2003] NSWCCA 77, the Court of Criminal Appeal said at [68]-[76] that usually those charged with essentially the same offences will be tried together. The court said that relevant considerations include conserving costs, avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.

63. The High Court has recently considered the principles concerning joint trials (admittedly in the context of jury trials) in McNamara v The King [2023] HCA 36. The joint judgment of Gageler CJ, Gleeson and Jagot JJ said:

64. Important reasons of principle and policy which had been recognized to support a joint trial include the avoidance of inconsistent verdicts and the delay in the administration of justice, the increased public expense, and the increased trauma and inconvenience to witnesses, associated with the conduct of separate trials - at [40]

65. To justify the ordering of a separate trial, the particular prejudice to a co-accused must rather be shown to be such as would occasion positive injustice – at [42]

66. In a joint trial, as in any other trial, a fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused – at [42].

Submissions for SafeWork

64. Senior counsel for SafeWork handed up an expanded version of the witness list which was annexure “A” to the affidavit of Ms Hu. The document repeated, the name of each witness to be called by the prosecutor and the indicative purpose in calling that witness. A column which was new was headed “Indicative Overview of Common Documents for Purpose of Joint Trial Interlocutory Hearing”. Against the name of each witness, there were recorded particular documents from the prosecution brief which would be tendered through that witness, or about which that witness could give evidence. It was still the intention of SafeWork to call each witness in the list in the trial against Boral and the same witnesses in the trial against Fenner.

65. Senior counsel for SafeWork made the following submissions (more fully set out in MFI 1):

66. Both proceedings arose from a work-related incident which occurred on 13 February 2022 at the Boral Cement Facility at New Berrima when a fluid coupling exploded leading to a number of workers being exposed to the risk of death or serious injury.

67. The charges against both defendants are essentially the same, in that each is charged with a breach of s 19(1) and s 32 of the WHS Act.

68. Both Boral and Fenner are charged in relation to the same risk, being the risk of suffering serious injury or death as a result of being struck, hit, burnt or otherwise coming into contact with the exploding coupling or its components, or hot hydraulic fluid, while working in the vicinity of conveyor belt EL013 during the work. The difference is that Fenner is charged with creating a risk to Mr Bennett (who was a Fenner employee) whereas Boral is charged with creating a risk not only to Mr Bennett, but to a number of other workers at the site.

69. The evidence in the case against Boral and in the case against Fenner was expected to overlap to a very large degree. It was pointed out that the Statements of Facts attached to each Summons is almost identical.

70. If separate trials are granted, nearly all of the witnesses who will be called in the case against Boral will also have to attend a second time to give evidence in a trial against Fenner. Most witnesses reside in regional NSW or are interstate. There would be inconvenience and disruption for those witnesses being required to give evidence twice. This would include the injured worker Mr Bennett, who suffered a traumatic brain injury, having to be called as a witness twice.

71. Separate hearings would necessarily require expenditure of additional costs by the prosecutor and by the court. Such additional expenditure is not in the public interest.

72. There is no consideration that would require the two matters to be heard separately so as to meet the interests of justice.

73. The prosecutor does not know if there will be a “cut-throat” defence. However, there may be such a defence as Boral may rely on engaging specialist contractors to perform work in relation to the conveyor belt.

74. Contrary to the submissions put for Fenner (see below), it would not be efficient to call more than 20 witnesses twice to give essentially the same evidence.

75. While some of the evidence would relate only to Fenner and some only to Boral, all of the witnesses would necessarily be called to explain the events leading up to the incident, the incident itself and any relevant post incident events, including reports created as a result of the incident.

Submissions for Boral

66. Senior counsel for Boral submitted firstly that neither Boral nor Fenner were accused of committing a crime jointly. Further, there was no suggestion in the evidence that there would be a “cut-throat defence” run by either Boral or Fenner. As pointed out by senior counsel for Boral, the defendant does not have to say what its defence is until the close of the prosecution case.

67. It was also submitted for Boral that the court could not have regard to matters universal to joint trials generally, but must only have regard to the evidence relevant to the charges presently before the court.

68. Senior counsel for Boral took the court through the particulars in the Boral Summons and the Fenner Summons and drew attention to the fact that most of the particulars are not the same. It was submitted that there was no explanation contained in PX 2 as to how the evidence to be led from each witness would fit into, and refer to, each particular in the Summons. Senior counsel submitted that Boral really needed to know why such evidence was being tendered.

69. It was submitted that there was not sufficient information for the court to come to the view that there should be a joint trial.

70. Boral drew attention to the fact that it pleaded not guilty first, and that a trial against Boral alone was set down for four weeks. It was submitted to be highly unlikely that adding the Fenner trial so as to make the proceedings a joint trial, would allow the case to finish in four weeks. There could well be a need to vacate the provisionally allocated hearing dates.

Submissions for Fenner

71. Counsel for Fenner adopted the propositions advanced by senior counsel for Boral. It was submitted that the principles in relation to joint criminal enterprise trials did not apply, as these two parties have not been charged with a joint crime. The primary consideration was the cost and convenience in running a joint trial.

72. As previously recited counsel for Fenner put forward a helpful document marked as MFI 4, which drew attention to the fact that there was little overlap between the steps which it was alleged Fenner should have taken to manage the risk, as compared to the more extensive steps alleged in the Boral Summons. It was submitted that the charge against Fenner was of a much narrower focus and that a Fenner trial, if run separately, could be completed within two weeks.

73. Counsel for Fenner characterised the charge against Fenner as one involving Fenner having an obligation to do checking and assisting. It was put that Fenner was “checking and not doing”. This would mean that Fenner would have to sit by, listening to extensive evidence concerning Boral, which had no relevance to the case against Fenner.

74. It was submitted that costs would actually be saved by having separate trials as the evidence called would have to be limited to the allegations in the relevant Summons.

Consideration

75. The court has a discretion to order that the charge against Boral and the charge against Fenner be heard and determined together, ie in a joint trial. Section 29(2)(b) of the CP Act is satisfied, in that the separate offences alleged against Boral and Fenner “arise out of the same set of circumstances”. Boral, Fenner and Nepean were all involved in the shutdown work to be done on the EL013 conveyor.

76. The question to be resolved is whether the Boral prosecution and the Fenner prosecution should be heard and determined separately in the interests of justice: s 29(3) of the CP Act.

77. At the outset it is important to note that neither Boral nor Fenner submits that they could not have a fair trial if the proceedings were heard jointly. This is not a case where any unfairness to the defendants, except in relation to costs and convenience, would arise.

78. The main argument put forward by both Boral and Fenner for separate trials is that, the particulars of the charge against each defendant being different, if they have a joint trial then each defendant may be sitting idle from time to time, while evidence is given affecting the other defendant. I am presently of the view that most of the evidence would be relevant to both defendants. SafeWork will need to establish just how the incident came about, and then establish which party had responsibility for particular steps and events. Given that there were multiple entities performing work on EL013 at a large industrial complex, most of the witnesses will be giving evidence to establish the necessary narrative background to both prosecutions, rather than giving evidence confined to the role of one defendant as opposed to the other defendant.

79. I accept the submission put for both Boral and Fenner that they are not accused of committing a crime jointly. However, both Boral and Fenner are alleged to have played a role in the creation of the risk. The risk pleaded against Boral and the risk pleaded against Fenner is the same risk, save that in the case of Fenner the allegation is only that Mr Bennett (an employee of Fenner) was exposed to risk, whereas in the case of Boral, there are a number of workers at the Boral Cement Facility who were near the coupling when it exploded and who were exposed to risk. The difference in the identity of persons exposed to risk is of little importance, and the different allegations as to the identity of the persons put at risk only arise because of the legal relationship between Fenner and Mr Bennett as opposed to the legal responsibility of Boral towards a wider number of persons.

80. SafeWork submitted that it would be calling the same witnesses in the Boral proceedings as it would call in the Fenner proceedings. The detailed schedule marked as PX 2 sets out the evidence which SafeWork would be called from each witness and identifies the documents which are relevant to the evidence of each witness, or which would be tendered through each witness. True it is that not all of the evidence called from each witness will be relevant to both Boral and Fenner. However, a large part of the evidence from the 24 proposed lay witnesses will go to establish the nature of the work to be performed on the conveyor belt, the work which was actually done, how the incident which led to the risk occurred, and what steps were taken after the incident to investigate and deal with the risk. In other words, the lay witnesses will be giving evidence about events at the Boral Cement Facility surrounding the shutdown work on the conveyor belt, and that evidence will be common to the case against Boral and the case against Fenner. It will be necessary to call of that evidence to establish the factual background to the allegations made about the alleged failures of each defendant to take steps to manage the risk.

81. Further, some of the particulars against Boral overlap with the particulars against Fenner. These are identified in MFI 4. There will be issues in the case as to which defendant had a particular responsibility for the various stages of the shutdown work on the conveyor belt and whether what was done was a failure to take reasonably practicable steps to eliminate or minimise the risk.

82. The list of common witnesses in PX 2 also sets out where each witness lives, and how far each witness lives from Sydney. Only two of the witnesses live in Sydney. Two live in Victoria. Most of the witnesses come from the Southern Highlands or the Illawarra. I must take account of the inconvenience which will undoubtedly be caused to each of these witnesses if they had to attend two separate trials and give their evidence twice. I must also take account of the doubling of witness expenses involved in such a procedure.

83. The parties provided their own estimates of the length of a joint trial or two separate trials. With some confidence I could predict that a joint trial would take up a shorter length of time than the total of two separate trials. Experience shows that trials do not always proceed seamlessly. Sometimes the prosecutor runs out of witnesses on a day, because cross examination is shorter than expected. On other days witnesses are kept overnight and have to continue their evidence on the next day, either because the witness starts late in the day or because cross examination is longer than expected. These are also relevant considerations concerning costs and inconvenience to witnesses.

84. Two separate trials would impose additional public expense upon SafeWork, and upon the court.

85. I take into account that Fenner in particular, if there is a joint trial, will be sitting through some evidence which is not tendered against it and which is not relevant to the prosecution of Fenner. The solicitor for Fenner has made an estimate that the Fenner trial could complete in two weeks as opposed to the four weeks set down for the Boral trial. Of course, if there is a joint trial it could well take longer than four weeks. I have no reason to doubt the broadbrush estimate made by Fenner’s solicitor for additional legal costs involved. To a lesser extent Boral will also be incurring legal costs for listening to some evidence relevant only to Fenner, but not relevant to Boral. The level of inconvenience, and the level of additional legal costs, could well be cut down if the parties turn their minds to shortening the case by the reception of evidence which is not genuinely in dispute.

86. Unlike some other cases where a clear injustice would be visited upon one party to a joint trial, and that defendant could not have a fair trial, such a submission was not made either by Boral or by Fenner. There is no impediment to the forensic fairness of any trial, if it is conducted as a joint trial.

87. I must take into account competing considerations of cost and inconvenience to Boral and Fenner. However, if the prosecution fails to prove its case against either defendant, then that defendant would have a reasonable expectation of a costs order in its favour. Since SafeWork is the party advocating for a joint trial, it could not be heard at that point to argue that the proceedings had taken longer than if there had been separate trials. A costs order would go some way towards ameliorating the additional costs arising out of a joint trial.

88. Senior counsel for Boral raised the spectre of the trial dates, already provisionally allocated provisionally, being vacated if an order is made for a joint trial. The parties will be at liberty to make such application they see fit in that regard. Any application can be made when both proceedings are listed before me on 10 July 2025, to review the progress of preparation and to confirm the trial dates, if both matters are on track.

Conclusion and Orders

89. For the reasons set out above, I have come to the view that there should be a joint trial of Boral and Fenner in relation to the charges against them. The offences arise out of the same set of circumstances within the meaning of s 29(2)(b) of the CP Act.

90. While there are factors pulling in both directions, I am not of the opinion that the proceedings should be heard and determined separately in the interests of justice, a matter I must take into account under s 29(3) of the CP Act.

91. The orders of the court in both matters are:

92. Order that the charges brought by SafeWork NSW against Boral Cement Limited and Fenner Dunlop Australia Pty Ltd be heard and determined together.

93. Confirm that both matters are provisionally listed for hearing for four weeks before me commencing on 27 October 2025, and are to be heard together.

94. Confirm the interlocutory orders made in relation to Boral Cement Limited on 19 December 2024 and in relation to Fenner Dunlop Australia Pty Ltd on 11 February 2025.

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