SafeWork NSW v Richard Crookes Constructions Pty Ltd; SafeWork NSW v Prestige Form Group NSW Pty Ltd

Category: Procedural rulings

Parties: Proceedings 2025/127894
SafeWork NSW (Prosecutor)
Richard Crookes Constructions Pty Ltd (Defendant)
Proceedings 2025/127917
SafeWork NSW (Prosecutor)
Prestige Form Group NSW Pty Ltd (Defendant)

Representation: Proceedings 2025/127894
Counsel:
E Aitken (Prosecutor)
C Magee (Defendant) (written submissions only)
Solicitors:
SafeWork NSW (Prosecutor)
Seyfarth Shaw Australia (Defendant)
Proceedings 2025/127917
Counsel:
E Aitken (Prosecutor)
I Chatterjee (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
NY Lawyers (Defendant)

File Number(s): 2025/127894
2025/127917

Publication restriction: Nil

JUDGMENT

1. On 5 April 2023, Khalid Saado was working on the Level 3 formwork deck of a six-storey apartment building in Oran Park, New South Wales (NSW), when he fell approximately three metres down an uncovered penetration. He suffered serious neck and facial injuries.

Procedural background

2. On 3 April 2025, SafeWork NSW (SafeWork) filed a Summons charging Richard Crookes Construction Pty Ltd (RCC) with a breach of s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act). The Summons alleges offences under s 32 and s 33 of the WHS Act in the alternative.

3. Also on 3 April 2025, SafeWork filed a Summons charging Prestige Form Group NSW Pty Ltd (Prestige) with a breach of s 19(1) of the WHS Act. The Summons alleges offences under s 32 and s 33 of the WHS Act in the alternative.

4. Both RCC and Prestige have entered pleas of not guilty. RCC entered its plea on 15 September 2025 and on 13 October 2025 it was listed for hearing from 30 November 2026 to 11 December 2026 before Chin J. Prestige entered its plea on 2 March 2026 and was listed for hearing on that date before me from 19 July 2027 to 30 July 2027.

5. On 25 March 2026, SafeWork filed a Notice of Motion (Motion) seeking orders to the following effect:

6. Pursuant to s 29(2)(b) of the Criminal Procedure Act 1986 (NSW) (CPA) that the proceedings be heard and determined together.

7. The hearing of and case management orders for SafeWork v RCC listed on 30 November 2026 to 11 December 2026 be vacated.

8. Both matters be listed for hearing on 19 July 2027 to 30 July 2027.

9. Accordingly, the issue for present determination is whether there should be separate trials of the charge against RCC and the charge against Prestige, or whether there should be a joint trial. Both RCC and Prestige oppose the joinder of their trials. RCC contends that the offences do not arise out of the same set of circumstances, and therefore this Court does not have the power to join the two proceedings. Both defendants contend that the matters ought to be heard and determined separately in the interests of justice.

Factual background

7. RCC was the principal contractor for a construction project at 88 Podium Way, Oran Park, NSW, known as the Metro 2 development (the Site). The project on the Site involved the construction of a new six-storey residential apartment building with 66 units and 2 levels of basement carparks. RCC engaged Prestige to provide formwork and associated works at the Site.

8. Prestige was engaged by RCC in May 2022 and commenced work at the Site in December 2022. Prestige engaged Connect Form Pty Ltd (Connect) to provide form workers at the Site, on a labour hire basis. Prestige had approximately 30 workers undertaking formwork at the Site at any one time. Over the course of the project, Prestige engaged 125 workers to undertake formwork at the Site.

9. On the date of the incident, Mr Saado, who was employed by Connect as a formwork labourer and was assigned to work in RCC’s business, was laying out formply on the Level 3 formwork deck. While Mr Saado was undertaking work on the northside of the Level 3 formwork deck, he removed a piece of unsecured plywood that exposed an unguarded penetration. Mr Saado fell approximately three metres down the penetration to Level 2 of the building and sustained serious injuries.

RCC Summons

10. The RCC Summons alleges that workers, and in particular Mr Saado, were exposed to a risk of death or serious injury. In the alternative it alleges that RCC failed to comply with its duty under s 19(1) of the WHS Act.

11. Paragraph 12 of the RCC Summons is in identical terms for the primary and the alternative charge. That paragraph pleads particulars of RCC’s failure to comply with the duty under s 19(1) of the WHS Act. The introductory words of paragraph 12 allege that RCC failed to take one or more of four pleaded measures to eliminate, or alternatively minimise, the risk.

12. Paragraph 12(a)(i) and (ii) plead that RCC should have verified that Prestige had securely covered the penetrations on the Level 3 formwork deck with clearly marked material or surrounded the penetrations with guardrails, as soon as they were formed or cut out.

13. Paragraph 12(b) pleads that RCC should have prohibited Prestige and Connect from working on the Level 3 formwork deck until the above measures were in place.

14. Paragraph 12(c)(i) and (ii) plead that RCC should have directed form workers not to remove the handrail separating the exclusion zone from the area where works were permitted, and not to enter the exclusion zone.

15. Paragraph 12(d) pleads that RCC should have supervised the form workers to ensure that work was being done in accordance with the RCC SWMS and that the exclusion zone and other controls were being maintained.

Prestige Summons

16. The Prestige Summons alleges that workers, and in particular Mr Saado, were exposed to a risk of death or serious injury. In the alternative it alleges that Prestige failed to comply with its duty under s 19(1) of the WHS Act.

17. Paragraph 12 of the Prestige Summons is in identical terms for the primary and the alternative charge. That paragraph pleads particulars of Prestige’s failure to comply with the duty under s 19(1) of the WHS Act. The introductory words of paragraph 12 allege that Prestige failed to take one or more of five pleaded measures to eliminate, or alternatively minimise, the risk.

18. Paragraph 12(a)(i) and (ii) plead that Prestige should have directed form workers not to remove the handrail separating the exclusion zone from the area where works were permitted, and not to enter the exclusion zone.

19. Paragraph 12(b) pleads that Prestige should have provided translations of its SWMS in languages including Arabic and provided it to its workers and those employed by Connect.

20. Paragraph 12(c)(i) and (ii) plead that Prestige should have installed guarding on the penetrations on the Level 3 formwork deck by covering them with clearly marked material or surrounding them with guardrails, as soon as they were formed or cut out.

21. Paragraph 12(d)(i) and (ii) plead that Prestige should have verified that the “Works Supervisor” was enforcing the safe systems of work at the Site, including the Prestige SWMS and the RCC “Safety Standards”.

22. Paragraph 12(e) pleads that if it was identified that the “Works Supervisor” was not enforcing the safe systems of work at the Site, they should have been replaced with someone competent to perform that role.

Overlap between the RCC Summons and the Prestige Summons

23. Both the prosecutor and RCC put forward submissions based upon their helpful analyses of the differences and similarities between the RCC Summons and the Prestige Summons. Prestige made a general submission that “[m]uch of the evidence against RCC, the cross examination by RCC and oral arguments regarding RCC will be irrelevant to [Prestige].” In the interests of brevity, I reproduce the table provided by RCC as Annexure 1 to MFI [4] as an Annexure to this judgment. I accept that the table accurately reflects the overlap of the measures alleged in relation to each of RCC and Prestige. I also accept the prosecutor’s submission that the measure at 12(d) of each of the Summonses will require evidence about the supervision of compliance with the Prestige SWMS.

24. An examination of the measures which it is alleged that each defendant failed to implement reveals that the case against Prestige is somewhat wider than the case against RCC. It extends beyond the conduct of the formwork at the Site to include the provision of translations of documentation, the assessment of the competence of the “Works Supervisor”, and the steps required to replace that person if they were assessed as not competent to perform their role.

Evidence on the Motion

Prosecutor’s evidence

25. In support of the Motion, the prosecutor relied on two affidavits of Julian O’Connell, the solicitor with carriage of the matters on behalf of SafeWork. The first, sworn on 25 March 2026, primarily sets out the procedural history of the matters. Briefly, Mr O’Connell’s evidence is as follows:

26. Both matters were commenced by Summonses, as detailed at [2]-[3] above. SafeWork served a Brief of Evidence and a Statement of Facts (SOF) on RCC on 21 May 2025. SafeWork served a Brief of Evidence and a SOF on Prestige on 23 July 2025.

27. As at 25 March 2026, SafeWork had not indicated, nor was it required to indicate, which documents in the respective briefs of evidence it proposes to tender at the hearings of the matters. Consequently, neither defendant had been required to indicate whether they would consent to the tender of any documents. Similarly, neither defendant had, nor had been required to indicate whether any of the facts in the SOF are agreed.

28. For the purposes of this Motion, SafeWork prepared an indicative list of documents that it intends to tender in both proceedings which relate to SafeWork, the NSW Police’s response to the incident, Mr Saado’s medical records obtained from the Ambulance Service of NSW and the Western Sydney Local Health District, and guidance material taken from the respective briefs of evidence. SafeWork also prepared an indicative list of the witnesses that it intends to call, subject to any agreement reached by the parties as to the facts or the tender of documents. That list of witnesses, comprising of 2 SafeWork inspectors and 16 lay workers, is the same for both proceedings.

29. The second affidavit, sworn on 4 June 2026, annexes a record of interview between SafeWork inspectors and each of Mr Saado and Carlos Aruajo.

Prestige’s evidence

30. In opposing the Motion, Prestige relied on the affidavit of Omar Youssef, the solicitor with carriage of the matters on its behalf, affirmed on 5 June 2026. Briefly, that affidavit sets out the current estimated cost of the hearing and the cost of the hearing if the matter is joined with that of RCC. Based on a 15-day hearing, the additional costs for Prestige were estimated to be between $93,200 and $139,800. Mr Youssef stated that Prestige’s director, Firas El Charkaoui had expressed concern about his ability to meet the costs of a 10-day hearing. Mr Youssef also annexed correspondence which he received from SafeWork on 22 May 2026, enquiring about whether Mr El Charkaoui would be willing to provide a statement in the matter against RCC.

31. Prestige also relied on the affidavit of Mr El Charkaoui, director and secretary for Prestige, affirmed 18 June 2026, in support of its submission that it is not currently in a financial position to meet the costs associated with a hearing before this Court in 2026. Mr El Charkaoui stated that Prestige currently employs 32 staff, all of whom he manages, with assistance from his wife, Natahlia Santa, who serves as office coordinator and performs administrative tasks.

32. Mr El Charkaoui’s evidence was that Prestige had received a costs estimate of $184,000 plus GST from its solicitor based on a 10-day hearing scheduled in July 2027. Mr El Charkaoui further stated that this estimate was based on having only one counsel and that if a junior counsel were retained, as had been requested by the current counsel, the estimated costs would increase to $264,000 plus GST.

33. Mr El Charkaoui stated that Prestige is not in a financial position to pay the costs associated with a 10-day hearing in July 2027, but that he anticipated being able to meet those costs in the first quarter of 2027. Mr El Charkaoui stated that Prestige’s liabilities include several outstanding invoices owing to suppliers, insurers and consultants, for which it has entered payment plans over the next 6 to 12 months. He provided details of those liabilities to a cost of $519,729.94 plus GST, supported by tax invoices. He further stated that those costs do not include Prestige’s monthly running costs of $57,593.60.

34. Mr El Charkaoui gave details of two other court proceedings to which Prestige is also currently a party and stated that Prestige has outstanding legal fees of $40,000 which it is required to pay by the end of December 2026. He further stated that, to secure NY Lawyers’ ongoing services, Prestige must pay 50% of the estimated fees for the 10-day hearing in July 2027 by January 2027, with the balance to be paid by the end of March 2027. His evidence was that if these proceedings are listed for hearing in November 2026, Prestige will be required to pay the full amount of the estimated costs for a 15-day hearing by the end of July 2026. He stated that Prestige intends to reconcile its outstanding debts and will budget for the estimated fees associated with the 10-day hearing in July 2027.

35. Mr El Charkaoui stated that Prestige has four current projects, each at different stages of completion, with a total estimated contract value of $8,174,726 plus GST. All four projects are expected to be completed on or before 1 December 2026 and current projections are for Prestige to trade out of its current debts by the first quarter of 2027.

36. Mr El Charkaoui provided details of three new Prestige subcontracts for projects that have not yet commenced, with a combined estimated contract value of $3,761,438. He stated that there are orders for materials from suppliers in connection with those projects, totalling approximately $300,000, with a payment term of 60 days. He also stated that Prestige has outstanding aged debtors totalling $529,000 plus GST and that while Prestige will continue to pursue payment for these amounts, there is no guarantee that the monies will be received by November 2026.

37. In addition, Mr El Charkaoui gave details of eight projects completed by Prestige in the last 12 months, under which retention monies have been withheld by the builder to a value of $510,416.66 plus GST. His evidence was that less than half of those monies are payable between 7 July 2026 and 1 December 2026, with the balance payable between 1 March 2027 and 1 December 2027. He further stated that Prestige intends to use those funds to clear outstanding debts and pay for the current proceedings.

38. Mr El Charkaoui stated that upon the matter being listed for July 2027 in March 2026, he budgeted for those costs accordingly, and due to cashflow problems, will be unable to pay for a 10-day hearing if the matter is rescheduled to November 2026. He further stated that if the matter is listed for 15 days from 30 November 2026, Prestige will be unable to engage junior counsel, as presently intended, to assist with the large amount of documentary material and the large number of witnesses, but that such costs would be manageable for a 10-day hearing in July 2027.

39. Finally, Mr El Charkaoui detailed Prestige’s current assets which include at least six motor vehicles, power tools and office equipment, with an estimated total value of value of $415,000. However, three of the motor vehicles were said to be subject to finance agreements. A statement for a Westpac bank account in the name of Prestige showed a balance of $3,700 as at 18 June 2026.

RCC’s evidence

40. RCC did not file any evidence for the purposes of the Motion.

Relevant law and authorities

41. Section 29 of the CPA provides:

29 When more than one offence may be heard at the same time

…

(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.

42. The Court’s power to make an order under s 29(2) is discretionary: s 9 of the Interpretation Act 1987 (NSW).

43. The principles drawn from the authorities concerning the application of s 29(2) were not in contest between the parties. They were summarised by Strathdee DCJ in SafeWork NSW v Richard Crookes Constructions Pty Ltd; SafeWork NSW v Transform Formwork Contractors Pty Ltd [2025] NSWDC 303 (Transform) at [9]-[10] as follows:

"[9] The principles applicable to the determination of whether there should be joint or separate trials were considered by this court in the matters of Orr v Moolarben Coal Pty Ltd: Orr v Chaplin [2020] NSWDC 739 at [24]-[26]; SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252 at [15]-[17], and SafeWork NSW v Boral Cement Ltd; SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2025] NSWDC 154 at [61]-[63]. The principles that can be drawn from the authorities include that:

(1) The provisions are designed to promote and facilitate the fair and efficient disposition of criminal justice.

(2) They afford the court a broad power to hear and determine related offences.

(3) The expression ‘arise out of’ in s 29(1)(b) of the CP Act is of particularly broad ambit.

(4) 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.

(5) The interests of justice will often pull in different directions, involving consideration of the interests of an accused as well as the interests of the Crown and the community.

(6) 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.

[10] Whilst I accept that the interests of justice referred to in s 29(3) of the CP Act provides the court with a broad range of considerations, the focus in an application to have two sets of proceedings heard together is not on whether particular charges are related or bear a sufficient relationship to justify their joinder but, rather, on the consequences of joinder for the accused, and the impact which joinder would be likely to have on their ability to obtain a fair trial: Allen v R [2020] NSWCCA 173 at [52] (Bell P (as his Honour then was), Davies and Button JJ agreeing); DS v R [2023] NSWCCA 151 at [79]–[81]."

Submissions

Prosecutor’s submissions

The proceedings arise out of the same set of circumstances – s 29(2)(b)

44. In support of its submission that the proceedings arise out of the same set of circumstances, the prosecutor pointed to the fact that each defendant has been charged with the same offence concerning a breach of the same WHS Act duty by exposing workers to the same risk, arising from the same incident. The prosecutor further noted that the SOFs served on each defendant are substantially the same, the Brief of Evidence is identical in each matter and that it intends to call the same witnesses in both proceedings. The prosecutor accepted that although each defendant’s duty is the same, its scope is determined in each case by the capacity of each defendant to influence and control matters at the Site and contended that the need to determine the extent of each defendant’s s 19(1) duty weighs in favour of the proceedings being heard together.

Interests of justice considerations – s 29(3)

45. The prosecutor emphasised that the interests of justice extend beyond those of the accused. It pointed to the need for witnesses to be called twice if the matters were to be heard separately, potentially causing them trauma, in addition to inconvenience and additional costs. This was said to be particularly true for the injured worker and the witnesses to the incident. The prosecutor also pointed to the additional burden on the Court’s resources including, by way of example, the necessity for an interpreter to be engaged to facilitate the giving of evidence by the injured worker in both proceedings.

46. The prosecutor pointed to the desirability of avoiding the return of inconsistent verdicts and the fact that, if the two trials were heard together, the length of the combined trial would inevitably be shorter than the duration of two separate trials, although it was not in a position to predict the extent to which a combined trial would exceed the estimated two week duration of a single trial.

47. The prosecutor pointed to the requirement for the defendants to establish that the joinder of the proceedings would create a “positive injustice”, relying on McNamara v The King [2023] HCA 36 at [42] per Gageler CJ, Gleeson and Jagot JJ. On the basis that both matters could be heard at the time of the earlier fixture, in November 2026, the prosecutor submitted that the only prejudice identified by either defendant was one of the additional costs resulting from a combined trial that extended beyond their individual two-week fixture.

48. Finally, the prosecutor relied upon the fact that both defendants are bodies corporate and therefore privileges and protections afforded to criminal defendants who are natural persons have no application to them. It pointed to the availability of discretions to exclude and limit the use of evidence pursuant to ss 135 and 136 of the Evidence Act 1995 (NSW) to manage any prejudice that could arise.

49. In oral submissions, the prosecutor submitted that the burden of additional costs incurred by the defendants as the result of the joinder of their proceedings is outweighed by the interests of justice which it has identified (as set out above). It set out the procedural history of the matter and pointed to the fact that the prosecutor indicated on 2 March 2026, when Prestige entered a not guilty plea and was set down for hearing, that it may seek for the matters to be heard and determined together. It noted that the Motion was filed on 25 March 2026 and submitted that it could therefore not be said that there had been any undue delay in the making of the Motion and that Prestige did not point to any specific consequential prejudice. A submission that the prosecutor had made a forensic decision based on the outcome of Transform was said to be entirely speculative and deserving of no weight.

50. The prosecutor emphasised the broad ambit of the words “arise out of” in s 29(2)(b) of the CPA and contended that there could be no real challenge to the proposition that the proceedings arise out of the same factual circumstances, for the reasons articulated in its written submissions. The prosecutor pointed to the fact that the authorities upon which RCC relies were peculiar to the legislative provisions there in issue, which did not include a requirement to consider the interests of justice, the breadth of which has been repeatedly emphasised by the authorities. Further RCC’s submission that there was insufficient evidence upon which the Court could make such a determination was said to appear to assume that such an application could only be made after the prosecutor had complied with all of its pre-trial obligations. The prosecutor submitted that this could not be correct and that it had nonetheless provided specific evidence in support of its Motion.

51. As for the defendants’ submission that there was insufficient overlap in the measures pleaded against each defendant, the prosecutor acknowledged those differences but contended that much of the factual information underpinning them was the same or similar and was in any event sufficiently similar to justify witness not being required to give evidence a second time. Further, the need for the Court to grapple with the extent of each defendant’s duty was said to justify the matters being heard together, so that the Court has all the relevant evidence before it in order to make that determination. This was said to outweigh the fact that the case against Prestige was broader than that against RCC. Further, it was contended that evidence about what RCC knew about compliance with the Prestige SWMS was a matter that would be relevant in both proceedings, in that it would be relevant to the ability of the supervisor to perform the role charged.

52. The prosecutor submitted that little weight could be given to the cost burden on Prestige in retaining two counsel for a period in excess of two weeks in the absence of an explanation about why two counsel were necessary, noting that RCC had only one. Further, contrary to the defendants’ submissions, it was axiomatic that requiring witnesses to give evidence on a second occasion was both an inconvenience and had the potential to retraumatise them and that, so far as the injured worker was concerned, this was reinforced by both his medical records and his record of interview with SafeWork inspectors.

53. Finally, the prosecutor noted that there was an intention to call RCC’s director in the proceedings against RCC, so there was no prejudice occasioned to RCC by him agreeing to give evidence against Prestige in a joint trial. The prosecutor further submitted that the impact of delay on the RCC trial if it were to be listed jointly with the Prestige trial in July 2027 would be no different to the effects of delay that Prestige will have to contend with in any event, and that it was in the interests of justice that witnesses in Prestige’s trial were not able to be confused by evidence that they had given in the RCC trial some eight months earlier.

RCC’s submissions

The proceedings arise out of the same set of circumstances – s 29(2)(b)

54. RCC opposed the Motion and contended that the evidence before the Court is inadequate to determine whether or not it is in the interests of justice for the matters to be heard together. RCC submitted that the available evidence to inform the exercise of the Court’s discretion is limited to the respective Summonses issued in each matter. RCC contended that those Summonses demonstrate that there are material differences in the measures which form the basis of the alleged offending by each defendant. RCC pointed to the considerably more confined scope of the proceedings against it than those against Prestige, in respect of which distinct evidence will be required. RCC further submitted that the proceedings do not involve a common enterprise, in respect of which consistent verdicts are desirable.

55. RCC submitted that the ‘indicative list of witnesses’ which the prosecutor intends to call in any joint trial does not enable the Court to determine whether the evidence of all witnesses will be led in both trials, and if not, the intended evidence in relation to each defendant. It accepted that a degree of overlap can be inferred but contended that the Court cannot find that the evidence to be given by witnesses in each proceedings will be the same. RCC pointed to the costs that it will incur in respect of time taken for evidence to address matters relevant only to the measures specific to Prestige.

56. Similarly, RCC contended that the evidence does not enable the Court to determine the extent to which the documentary evidence in each trial is the same and therefore the extent to which RCC will incur costs for documentary evidence relevant only to Prestige. This difficulty was said to extend to the expert evidence to be led in each proceedings.

57. RCC submitted that the prosecutor has given no real consideration to the length of a joint trial and therefore the extent to which it would be shorter than the two separate hearings. RCC contended that a joint trial, which addressed circumstances and failures relevant only to Prestige, is likely to be considerably lengthier than the proceedings against it alone. RCC pointed to the absence of evidence that the injured worker, or any other witness, would be unable to give evidence in two trials or the likelihood that they will be retraumatised in the process.

58. Finally, RCC contended that the prosecutor’s proposal to vacate the 30 November 2026 listing of its hearing, and to instead have the matter heard in the second half of July 2027, would be contrary to principles promoting and facilitating the fair and efficient disposition of criminal justice. RCC contended that a delay of a further eight months, in proceedings commenced on 3 April 2025 in relation to an offence that is alleged to have occurred on 5 April 2023, would affect RCC’s ability to obtain a fair trial because it would increase the likelihood that the evidence of lay witnesses is unreliable.

59. In oral submissions, RCC emphasised that defendants in WHS Act prosecutions are not co-defendants. They are each charged with the breach of a separate duty. That the incident which occurred is no more than symptomatic of the alleged breach was said to be underscored in this matter by the fact that in each case the prosecutor has charged a s 33 offence in the alternative to the s 32 offence. RCC pointed to this as demonstrating a lack of confidence by the prosecutor that it will be able to prove a nexus between the alleged breach and the incident which occurred on 5 April 2023.

60. RCC pointed to the absence of particularisation in the pleadings as to what each party should have done in relation to the other, and submitted that such a consideration was therefore unable to form a basis for hearing the matters together. RCC accepted that the obligations of a third party may be relevant to factors within the control of a defendant but submitted that that is not a matter that impacts upon the reasonable practicability of measures with which it is alleged that a defendant failed to comply. RCC contended that the focus of a trial will be establishing those measures. RCC accepted that there will be some overlap in the evidence between the two matters but submitted that a significant amount of the evidence will be unique to one or the other defendant. RCC contended that there is insufficient evidence upon which the Court could find otherwise. In particular, RCC contended that the identical content of the Brief of Evidence in each matter did not assist the Court in making that assessment.

61. RCC disputed that the proceedings arise out of the same set of circumstances because the gravamen of the proceedings was said to be in the measures particularised against each defendant. Further, the extent of the overlap of the evidence in the two matters was said to be somewhat determinative of whether it was in the interests of justice for them to be heard together. In addition, RCC contended that it is not realistic for both matters to be heard within the 10-day timeframe currently allocated for its matter. RCC also pointed to the very real prospect of the agreed facts being different in respect of each defendant, which would add an additional layer of complexity to the proceedings.

Prestige’s submissions

62. Prestige also opposed the Motion. Prestige accepted that the Court has the power to make an order under s 29(2)(b) of the CPA but contended that to do so in this matter would not be a proper exercise of the Court’s discretion. In support of that submission, Prestige pointed to SafeWork’s unexplained delay in bringing this Motion some three weeks after the Prestige hearing was allocated separate hearing dates to the RCC hearing dates, which were allocated almost five months earlier. Prestige also pointed to the evidence that, prior to the filing of this Motion, it was unaware that proceedings had been commenced against RCC in respect of the same incident.

63. In addition, Prestige pointed to the different roles of RCC and Prestige at the Site and what were said to be significant differences between the measures with which it is alleged that each defendant failed to comply. This was said to make it difficult for the Court to assess the underlying commonality of the proceedings or the relevance to each matter of evidence that any witness may give. In that regard, Prestige contended that if the proceedings were to be joined, much of the anticipated evidence against RCC would be irrelevant to Prestige.

64. Prestige also contended that SafeWork had given insufficient consideration to the benefits of joining the two proceedings, in that there was no estimate of the length of the combined hearing or evidence of cost savings to be achieved. It was said that the one thing that the Court could be sure about was that a joint trial would be longer than the 10 days allocated for both matters heard individually.

65. In addition, Prestige pointed to the lack of evidence that SafeWork had canvassed with Mr Saado the prospect of him giving evidence twice, let alone whether this would add to any trauma occasioned by the requirement for him to give evidence in a joint trial. Prestige contended that other (unspecified) steps could be taken to minimise the repetition of his evidence. Finally, Prestige contended that this is not a matter where the risk of inconsistent verdicts arises in the event that the matters are heard separately.

66. Prestige contended that while the purported benefits of joining the proceedings are unclear, the prejudice that it would suffer in the form of incurring additional costs was obvious. Prestige contended that additional costs of between $93,200 to $139,800 plus GST for a 15 day hearing were not a reasonable burden to impose, pointing to the fact that in Transform, the Court rejected a joinder application which would extend the hearing by a week and impose a further $45,000 in costs on the defendant.

67. Finally, Prestige submitted that it is not in a position to be able to fund a trial in November 2026, pointing to evidence that it would cost between $276,000 and $462,000, depending on whether it retains one or two counsel and whether the preparation of the matter will take 15 days or 20 days. In any event, the likely cost to Prestige in advance of the hearing was submitted to be at least $300,000. Prestige pointed to evidence that it had made financial arrangements to fund a trial on the basis that it would take place in July 2027. In that regard, Prestige relied upon evidence of its cash position as at 18 June 2026, monthly operating costs, current liabilities and anticipated income, summarised at [32]-[39] above. Prestige also submitted that a July 2027 trial would give it the ability to fund proceedings conducted in the manner that it wishes, i.e. with two counsel appearing, and that this would not be possible if the matter were to be heard in 2026. This was said to assume relevance in circumstances where the matter has already been listed for hearing.

68. In oral submissions, Prestige adopted the submissions of RCC concerning the dissimilarity of the prosecution’s case against each of them. It contended that the substance of the trial would largely consist of evidence concerning the measures alleged against each defendant and that the factual circumstances surrounding the incident were likely to be largely agreed between the parties. Prestige’s central contention was that the Court has not been sufficiently appraised of the likely matters in contest to be able to determine whether the interests of justice favour the joining of these matters. In particular, the Court’s assessment that savings will be achieved by joining the matters without any ability to quantify those saving was said not to advance matters in determining whether the two proceedings should be joined. Against that, Prestige pointed to the real prejudice that it, being a far more modest entity than RCC, would suffer as a result of the additional costs, which had been quantified.

Prosecutor’s submissions in reply

69. The prosecutor contended that each Summons makes plain the obligation of the relevant defendant in respect of the duty about which a breach was alleged. The prosecutor stated that there had been no request for further and better particulars from either defendant. The prosecutor maintained that there was a significant degree of similarity in the measures pleaded against each defendant, and pointed by way of example, to the fact that both defendants were charged with a failure of supervision in respect of the Prestige SWMS. The differences in the measures were said to reflect what each defendant knew or ought to have known about the system and the ways in which they were required to supervise and ensure compliance with it.

70. At hearing, the prosecutor accepted that the ability of Prestige to fund a trial in late 2026 was a relevant consideration, but that it needed to be viewed in the context of proceedings which were commenced in April 2025. In written submissions addressing Prestige’s further financial evidence, the prosecutor reiterated that Prestige has been on notice of these proceedings, and therefore the possible costs involved since April 2025. It contended that the financial evidence provided by Prestige does not demonstrate that an injustice would be occasioned if the proceedings against it were heard together with the proceedings against RCC on and from 30 November 2026 or before July 2027. Firstly, this was said to be because the Court could not find, based on that financial evidence, (which included anticipated income and assets with a combined value in excess of $13 million) that Prestige has no capacity to fund legal proceedings commencing on 30 November 2026. In that regard, the prosecutor relied on the evidence that Prestige was solvent and that it expected cash from current and future projects over the next 12 months, together with the release of retention payments. Further, even if Prestige were unable to fund a joint hearing in November 2026, the financial evidence was said to demonstrate that such a hearing could be funded in March 2027.

71. The prosecutor submitted that this Court should place little weight on the fact that Prestige is named in other (civil) proceedings, in the absence of information about the status of either of those proceedings. In that regard, the prosecutor pointed to the 30 April 2025 date of the most recent invoice available to the Court. The prosecutor also pointed to the absence of evidence concerning steps taken by Prestige to arrange its finances, such as refinancing debt, selling assets to fund its legal representation or obtaining a company loan. The prosecutor submitted that other relevant interests of justice considerations should not be ignored to accommodate Prestige’s commercial preferences.

Prestige’s submissions in reply on its ability to find a trial in 2026

72. Prestige submitted that the prosecutor’s analysis of its financial capacity should not be accepted. Prestige contended that the contract value of a project is entirely meaningless and that it is the net profit margin which is relevant, together with the timeframe in which that profit might be realised. Prestige also pointed to the requirement for it to retain its capital assets in order to operate its business. It submitted that contrasting the $13 million figure with its outstanding liabilities (of approximately $650,000) and its approximate monthly $58,000 running costs misrepresented its true financial position and that at best, the financial evidence assisted the Court to find that it might be in a position to fund “adequate” legal representation at a trial before July 2027.

73. Prestige contended that any criticism of its lack of effort to secure alternative finance was unfair when the issue of the trial being brought forward was only raised by the prosecutor at the hearing of the Motion on 11 June 2026 and that the Court did not have a basis to find, based on the evidence of its accrued liabilities that the defendant would be able to secure such finance. While it accepted that these proceedings have been on foot since April 2025, it stressed that the matter has been listed for hearing in July 2027, and that what is being sought is to bring that date forward by eight months. Prestige maintained that the financial evidence before the Court demonstrates that there is “a real risk” that it would be unable to fund proceedings if that occurred and therefore that the administration of justice is served by any joint trial not being listed to commence before July 2027.

Consideration

74. The Court has a discretion to order that the charge against RCC and the charge against Prestige be heard and determined in a joint trial. Section 29(2)(b) of the CPA is satisfied in that the separate offences alleged against each of RCC and Prestige “arise out of the same set of circumstances.” Given the wide ambit of that provision, I reject RCC’s contrary submission. Both RCC and Prestige were working on the Metro 2 development and, as principal contractor, RCC had engaged Prestige to undertake that work. Accordingly, the question to be resolved is whether the Prestige prosecution and the RCC prosecution should be heard separately, in the interests of justice: s 29(3) of the CPA.

75. On that issue, RCC relies on Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (Pambula) in support of its submission that the prosecutor is inviting the Court to take into account considerations of a general character without adequately addressing the specifics of this case. In that regard, I accept the prosecutor’s submission that Pambula was decided in a different context, where the broader interests of justice were not required to be considered.

76. I accept the submission put by both RCC and Prestige that they are not accused of committing a crime jointly. However, the risk pleaded against RCC is identical to that pleaded against Prestige. RCC and Prestige are each alleged to have played a role in the creation of the risk to which their respective workers were exposed.

77. SafeWork submitted that it would be calling the same witnesses in both proceedings but provided no evidence about the evidence to be called from each witness in each trial or the documents to be tendered through each witness. The documentation which SafeWork identified as being common to both proceedings, being the medical records of the injured worker and the relevant guidance material, are likely to be matters about which agreement will be reached with the defendants. A substantial proportion of the evidence at trial will concern the measures which it is alleged that each defendant failed to take in breach of its WHS Act duty. Nonetheless, I accept that evidence about the nature of the construction work being undertaken at the Site, the work which was actually done, how the incident which was a manifestation of the risk occurred, and the steps taken after that incident to investigate and deal with the risk will be common to the case against each defendant. It will be necessary to call that evidence to establish the factual background to the allegations made about each defendant’s failure to take steps to manage the risk.

78. The main argument put forward by both RCC and Prestige was that, because the particulars of the charge against each of them is different, a joint trial will require each defendant to participate in a trial while evidence is given in respect of the other defendant. This was said to cause significant prejudice as to costs and convenience for each of them. In that regard, RCC placed emphasis on the significantly wider prosecution against Prestige. Prestige, which has given an estimated range of the additional costs that it would accrue, contended that the imposition of such a burden on a PCBU of its modest size would be unreasonable.

79. However, the contention of unfairness to both defendants was not confined to one of costs incurred in respect of the hearing time that would not be required for an individual trial. In addition, RCC contended that it would suffer prejudice if its trial were delayed a further eight months to join up with the present listing of RCC in July 2027. RCC pointed to the fact that the incident giving rise to the prosecution occurred on 5 April 2023, and submitted that witnesses’ evidence was less likely to be reliable in July 2027, more than four years after the subject incident than it would be in November and December of 2026, and that this would adversely impact its ability to get a fair trial.

80. I accept that deferring RCC’s trial, which has been set down to run from 30 November 2026 since 13 October 2025 for a further period of approximately eight months would not be in the interests of justice for either RCC or the community at large. That is a very significant further period of delay to impose upon both the defendant and the witnesses in that matter and will result in the trial running more than four years after the incident giving rise to it. That the hearing for Prestige will not take place any earlier than July 2027 is no answer to that submission. Rather it is an unfortunate reality of the current resourcing level of this Court.

81. That leaves the possibility of bringing the Prestige trial forward to join with the RCC trial commencing in November 2026. Prestige claimed that this would bring about unfairness because of its inability to fund a trial in November and December 2026. Prestige submitted that the running of the trial in late 2026 was “the worst possible outcome” in terms of its ability to manage the associated legal costs. In that respect, Mr El Charkaoui’s unequivocal evidence was that:

“Prestige will not be able to pay the estimated legal fees for a 10 day hearing if the date is rescheduled to November 2026.”

82. Mr El Charkaoui further stated that:

“Should the matter be listed for an estimated 15 day hearing in November to December 2026, with Richard Crookes Constructions, Prestige will not be able to engage [a second junior counsel]. However, Prestige can engage junior Counsel, should the matter remain listed for a 10 day hearing in July 2027. I am advised that it would assist Counsel…to have junior counsel engaged for the preparation of and attendance at hearing, firstly to be able to put Prestige in the best possible position to defend these proceedings, and secondly, to assist with the voluminous nature of the brief served by the Prosecutor and the number of witnesses.”

83. The interests of justice dictate that Prestige has adequate representation at trial to be able to present its case. This does not extend to putting it in the optimal financial position to fund legal representation at the expense of competing interests of justice. I nonetheless accept as genuine Mr El Charkaoui’s evidence that the listing of the Prestige trial in November 2026 would occasion financial hardship to Prestige, which is a significant consideration in determining the appropriate course in the interests of justice.

84. However, the real difficulty with bringing the Prestige hearing forward to join with the hearing for RCC is that there is no considered estimate of the duration of such a hearing. The RCC fixture is 10 days from 30 November 2026 to 11 December 2026. As submitted by RCC, it is unrealistic to expect both matters to be completed within that 10-day fixture. There are plainly issues in the Prestige matter which do not arise in the RCC matter. The estimate of the RCC hearing therefore cannot have been intended to accommodate evidence about those matters. The prosecutor accepts that a joint hearing may exceed that allotted timeframe. Accordingly, ordering the joinder of the trials to run from 30 November 2026 creates the very real possibility that on the first day of the hearing all parties would advise the Court that the matter cannot be completed within that timeframe. In that event, the matter would almost certainly be relisted with an appropriate timeframe, rather than be allowed to go part heard into the 2027 law term. Given the demands on the present resources of this Court, there is little prospect of a combined listing of the matter before the current Prestige hearing in July 2027.

85. That reality also deals with the submission by the prosecutor that both matters could be relisted together in March 2027. That is currently not possible, given that this Court is presently listing defended WHS Act prosecutions which are estimated to run for more than two weeks in November 2027.

Conclusion

86. For the above reasons I find that it would not be in the interests of justice for the trial of RCC and Prestige to be heard together. In coming to that conclusion, I accept that the running of two trials will require additional resources for the prosecutor and will inconvenience witnesses required to give evidence on a second occasion. However, the interests of justice will not be served either by listing the matters in a timeframe within which they are unable to be completed or by vacating RCC’s 2026 hearing dates.

Orders

87. In this matter I make the following orders:

88. I dismiss the Motion.

89. Costs of the Motion are reserved.

90. Proceedings 2025/127917 are listed before the Registrar at 9.30am on 13 July 2026 for directions.

91. Proceedings 2025/127894 are stood over to the readiness hearing at 10:00am on 2 November 2026 before Chin J.

Annexure 1 - Analysis of particulars alleged against RCC & Prestige (145 KB, pdf)

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