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[2025] QCA 177
respondent. The appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal.
3 cited instruments linked from this judgment.
The Court of Appeal dismissed BMA's appeal against safety directives governing heavy mobile equipment during lightning alerts. The Industrial Court had required the equipment to stop at Level 3 alerts, while allowing it to continue through Level 2. The appeal focused on whether the Industrial Court wrongly treated the legislation as excluding consideration of commercial interests, and whether it ignored evidence about operational and commercial impacts. The Court of Appeal held that the Industrial Court had decided whether the risk was within acceptable limits, not whether it was as low as reasonably achievable. Since the latter question did not arise, the alleged failure to consider evidence relevant to that question did not establish an error affecting the result. The Court noted that costs are likely relevant to the as-low-as-reasonably-achievable assessment, but did not decide the full legal test.
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1,963 words · generated 07/10/2026
BM Alliance Coal Operations Pty Ltd (BMA) operates Peak Downs Mine in Queensland's Bowen Basin. The respondent, Jacques Le Roux, was the Chief Inspector of Coal Mines, Resources Safety and Health Queensland. On 25 October 2023, the Chief Inspector issued BMA two directives under ss 166 and 168 of the Coal Mining Safety and Health Act 1999 (Qld) (the Act) [2]. The directives concerned, among other matters, how heavy mobile equipment (HME) operating on large rubber tyres should be managed during lightning activity.
The dispute involved two identified hazards. First, a lightning strike could expose an HME occupant to electrical charge. The evidence accepted by the Industrial Court was that an HME has a partial Faraday cage effect, but is not a true Faraday cage, and that conductivity pathways into the vehicle could not all be identified [20]. Second, air-filled tyres could explode if lightning current passed through them. The parties accepted that nitrogen-filled tyres would not explode in that way [10], [19].
BMA's Lightning Trigger Action Response Plan (TARP) allowed HME with tyres at 95 per cent nitrogen purity or above to continue operating during Level 2 and Level 3 alerts, subject to supervisory directions in the circumstances described in the judgment [12]. The 166 Directive required HME operators at Level 2 to park up, leave the cabin and relocate to a safe building [13]. The Industrial Court varied the directives. Its ultimate outcome was that operations could continue through Level 2, but HME had to be parked at Level 3, with workers remaining inside until the alert lifted [21], [34].
BMA appealed on two grounds. It said the Industrial Court had wrongly construed s 29 by saying the Act did not suggest balancing safety and commercial interests, and that this error led it to disregard evidence of commercial and operational effects relevant to whether risk was as low as reasonably achievable [5]-[6]. The Court of Appeal dismissed the appeal and ordered BMA to pay the respondent's appeal costs [36].
The central point was the structure of s 29. It requires risk from coal mining operations to be both “within acceptable limits” and “as low as reasonably achievable” [22]. The parties accepted that these are distinct limbs [23], [26]. The first asks whether the risk exceeds the acceptable limit. The second concerns whether the risk has been reduced as far as is reasonably achievable.
The appeal was resolved by identifying which limb the Industrial Court had actually decided. The Court of Appeal said the matters in issue below concerned whether the risk was within acceptable limits [29]. The Chief Inspector had raised the “lowest reasonably achievable” question only as an alternative, to be reached if the Industrial Court first found the risk under BMA's TARP to be within acceptable limits. That finding was not made [29]. Accordingly, the alternative issue did not arise.
The Industrial Court's factual conclusions were directed to acceptability. For operation during Level 3 alerts, the President relied on conductivity pathways, the greater likelihood that a worker would touch a metal surface while operating the HME, and the possibility of injury or death [31]. For parked HME, the President relied on the absence of reported serious injury or death in the evidence described, the vehicle's Faraday cage effect, and the reduced need to manipulate conductive controls [32]. The Court of Appeal treated those conclusions as addressing whether the risk was within acceptable limits, rather than whether it was as low as reasonably achievable.
This distinction disposed of both grounds. Even if the Industrial Court's broad statement about safety and commercial interests required qualification, that statement was not necessary to its conclusion or orders [35]. Nor could an alleged failure to consider evidence relevant to the second limb establish an error in a decision made on the first limb. The Court therefore dismissed the appeal without determining the proper construction or application of s 29(1)(b) [35]-[36].
The judgment describes the statutory position through s 29 and the parties' shared construction of it. Section 29(1) requires the risk to satisfy two conditions: it must be within acceptable limits and as low as reasonably achievable [22]. The relevant mandatory considerations under s 29(2) are the likelihood of injury or illness and the severity of injury or illness [22]. The parties agreed that the two limbs are separate, and accepted that assessment of the second limb may involve further relevant considerations, including implementation costs and opportunity costs [26].
The judgment's most useful clarification is that the factors listed in s 29(2) do not exclude other considerations that are otherwise relevant. The Court said this in relation to costs and observed that it was difficult to see how costs would not be relevant to determining whether risk was as low as reasonably achievable [28]. But the Court did not decide the full content of that assessment. Its observation arose in a case where the second limb was not reached, and the Court expressly stated that the proper construction of s 29(1)(b) did not fall to be considered [35].
So, in terms of what changed after this decision, the judgment did not establish a complete test for s 29(1)(b), nor did it decide whether or how safety must be balanced against commercial interests in a case requiring that assessment. It confirmed the analytical separation between the two statutory limbs for the purposes of resolving this appeal. It also explains why evidence about costs and operational impacts may matter to the second limb, without deciding whether such evidence must be considered on any particular facts.
At [28], the Court said that the mandatory considerations in s 29(2) “do not exclude any otherwise relevant consideration, such as relevant costs.” In plain English, the statute's express list of risk factors is not necessarily a complete checklist for every question under s 29. Other matters can be considered if they are relevant to the particular statutory assessment.
Also at [28], the Court said it was “difficult to see how costs would not be relevant” to assessing whether risk was as low as reasonably achievable. This indicates that cost is likely to matter to that assessment. It is not a holding that any particular cost must prevail, or that commercial considerations override safety. The Court did not apply that observation to the evidence in this case.
At [29], the Court explained that “the only matters in issue” in the Industrial Court concerned whether risk was within acceptable limits. This is the procedural and analytical hinge of the appeal. The Court did not treat the appeal as an opportunity to decide the second statutory limb in the abstract.
At [35], the Court said that the proper construction of s 29(1)(b), and evidence relevant to the “as low as reasonably achievable” assessment, “did not fall to be considered in this case.” In plain English, the judgment deliberately leaves that question open. It also says the challenged reference to “any balancing of safety and commercial interests” was not essential to the decision. These passages caution against reading the dismissal as a final ruling that commercial impacts are irrelevant, or as a complete endorsement of a particular balancing test.
The judgment is most directly relevant where a statutory risk test has two distinct components, one requiring risk to remain within an acceptable limit and another requiring it to be reduced as far as reasonably achievable. A dispute may turn on identifying which component the decision-maker actually applied. Here, the Court treated the first question as dispositive and the second as an alternative that never arose [29]-[32].
It is also relevant where an appellant alleges that a decision-maker failed to consider costs or operational consequences. The decision shows the importance of connecting the allegedly omitted evidence to the statutory issue that was actually determined. The Court did not decide whether the Industrial Court should have weighed BMA's commercial evidence under s 29(1)(b), because that assessment was not reached [29], [35].
In a practical legal analysis, the distinction may matter in regulatory decisions involving layered risk duties. The judgment does not establish that its result applies to every such statute, or that costs have identical relevance under other legislative schemes. Its reasoning is tied to the text and issues before the Court, including s 29 and the parties' concessions [22]-[28].
The operational facts remain important to the particular outcome: lightning strikes and HME strikes were relatively common during storm season; HME offered partial protection; conductivity paths and their effects were uncertain; and operating the equipment could increase the chance of contact with conductive controls [20]-[21]. But the appeal court's central legal reasoning was about the statutory limb in issue, not a general rule that a particular response to lightning is required at every mine.
The supplied judgment does not identify any later judicial treatment of this decision. It was delivered on 19 September 2025, and the material provided contains no subsequent cases applying, distinguishing, approving or criticising it. A source-grounded account therefore cannot say how later courts have treated the decision.
The judgment itself refers to the Industrial Court proceeding, BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] ICQ 20, as the source of the reasons under appeal [4]. That is the lower-court proceeding, not later treatment of the Court of Appeal's decision. The Court of Appeal considered the Industrial Court's findings and orders but dismissed BMA's appeal [29]-[36].
For research purposes, the decision's express limits matter when assessing its future significance. The Court left open the proper construction of s 29(1)(b), while indicating that costs are likely relevant to that assessment [28], [35]. Any later court considering that question would need to be examined directly before attributing a settled or expanded rule to this case.
The most explicit open question is the proper construction and application of s 29(1)(b). The Court said it did not need to decide whether, or how, safety and commercial interests should be balanced when assessing whether risk is as low as reasonably achievable [35]. Its observation that costs are likely relevant is informative, but it is not a complete formula for weighing costs against reductions in risk [28].
The judgment also does not determine what evidence is required to assess the second limb, how opportunity costs should be measured, or how much weight a decision-maker may give them. The parties accepted that costs and opportunity costs were likely relevant considerations under s 29(1)(b), but the Court did not apply those propositions to the facts [26], [28]-[29].
Nor does the appeal decide the broader reach of s 29(2) in other contexts. The Court stated that the listed mandatory considerations do not exclude otherwise relevant considerations, but it did not exhaustively identify what those additional considerations might be [28]. It also did not decide whether other legislation, including the Work Health and Safety Act 2011 (Qld), should be construed in the same way. The mention of that statute appears as part of the submissions described at [27], not as a separate ruling on its meaning.
Finally, the appeal did not re-evaluate the Industrial Court's detailed factual findings about lightning, electrical conductivity, or worker behaviour. The Court noted that key findings were accepted by the parties on appeal and used them to identify the statutory question actually resolved [19]-[20], [30]-[34]. The decision's value lies principally in that distinction and in its careful reservation of the unresolved s 29(1)(b) issue.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: BM Alliance Coal Operations Pty Ltd v Le Roux [2025] QCA 177
PARTIES: BM ALLIANCE COAL OPERATIONS PTY LTD / (appellant) / v / JACQUES LE ROUX, CHIEF INSPECTOR OF COAL MINES, RESOURCES SAFETY AND HEALTH QUEENSLAND / (respondent)
FILE NO/S: Appeal No 532 of 2025 / ICQ No 44 of 2023 / ICQ No 45 of 2023
DIVISION: Court of Appeal
PROCEEDING: Appeal from the Industrial Court (Qld)
ORIGINATING COURT: Industrial Court at Brisbane – [2024] ICQ 20 (Davis J, President)
DELIVERED ON: 19 September 2025
DELIVERED AT: Brisbane
HEARING DATE: 13 June 2025
JUDGES: Bond, Brown and Bradley JJA
ORDERS: The appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal.
CATCHWORDS: INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – DUTIES – RISK ASSESSMENT AND SAFE SYSTEM OF WORK – where the appellant operates a coal mine located in the Bowen Basin – where the respondent is the chief inspector of Coal Mines, Resources Safety and Health – where the chief inspector issued two directives to the appellant under sections 166 and 168 of the Coal Mining Safety and Health Act 1999 (Qld) (the Act) – where the appellant appealed the decision of the respondent to issue the directives to the Industrial Court of Queensland (ICQ) – where the ICQ made final orders varying each directive by deleting certain parts and substituting different provisions – where the appellant contends the President of the ICQ wrongly construed section 29 of the Act in concluding it was not necessary to balance safety and commercial interests – where the appellant contends the President of the ICQ failed to consider evidence before the Court that was relevant to the assessment required by subsection 29(1)(b) of the Act – whether the President of the ICQ erred in law by wrongly construing section 29 of the Act – whether the President of the ICQ erred in law by failing to consider the evidence before the Court with respect to the determination required by subsection 29(1)(b) of the Act / Coal Mining Safety and Health Act 1999 (Qld), s 29, s 166, s 168 / Work Health and Safety Act 2011 (Qld), s 18
COUNSEL: P J Dunning KC, with B I McMillan, for the appellant / J D McKenna KC, with N J Derrington and P H Nevard, for the respondent
SOLICITORS: Herbert Smith Freehills Kramer for the appellant / Gadens for the respondent
THE COURT: The appellant (BMA) operates the Peak Downs Mine, a coal mine located south-east of Moranbah in the Bowen Basin. The respondent (the chief inspector) is the chief inspector of Coal Mines, Resources Safety and Health under the Coal Mining Safety and Health Act 1999 (Qld) (the Act).
On 25 October 2023, the chief inspector issued two directives to BMA: one under s 166 of the Act (the 166 Directive); and the other under s 168 of the Act (the 168 Directive).1 A subject of the directives was the management during lightning activity of certain Heavy Mobile Equipment, which operate on 24″ or larger rubber tyres, (HME).
BMA appealed to the Industrial Court of Queensland against the directives. The Industrial Court stayed the directives pending a decision on BMA’s appeal. On 16 January 2025, the Industrial Court made final orders, including orders lifting the stays of the directives and varying each directive by deleting certain parts and substituting different provisions.
By its appeal to this Court, BMA challenged those orders. The appellant relied on parts of the reasons published on 13 November 2024,2 following a four-day hearing de novo before the President of the Industrial Court.
Grounds of appeal
BMA advanced two grounds of appeal:First, that the Industrial Court erred in law by wrongly construing s 29 of the Act and finding, at paragraph [27] of the reasons, that nothing in the Act was suggestive of any balancing of safety and commercial interests; andSecond, that the Industrial Court erred in law by failing to consider or take into account evidence that was before the Industrial Court as to the commercial and operational impacts of the directives in assessing whether risk was “as low as reasonably achievable” for the purposes of s 29(1)(b) of the Act.
The two grounds were not independent. BMA contended that the error of law alleged in Ground 1 led the Industrial Court into the error alleged in Ground 2, by infecting the Industrial Court’s approach to the evidence before it.
The submission in the appeal
The chief inspector’s power to issue the 166 Directive depended on the chief inspector reasonably believing “a risk from coal mining operations may reach an unacceptable level”. By the 166 Directive, the chief inspector could require BMA to “take stated corrective or preventative action to prevent the risk reaching an unacceptable level.”3
The chief inspector’s power to give the 168 Directive depended on the chief inspector believing “the safety and health management system or a principal hazard management plan for a coal mine” was ineffective. By the 168 Directive, the chief inspector could require BMA to “review the safety and health management system or the principal hazard management plan and make it effective.”4
In the Industrial Court, BMA accepted that if the 166 Directive was not set aside, then the 168 Directive would also remain. The chief inspector accepted that if the 166 Directive was set aside, then the 168 Directive would also fail. Both parties accepted that if the 166 Directive was varied by the court, then the 168 Directive would also be varied to require changes consistent with the varied 166 Directive.
Most of the factual and expert opinion matters were not in dispute in the Industrial Court. As the President noted:
“[57] It is common ground that HMEs may be struck by lightning when they are operating in coal mines in the Bowen Basin. It is also common ground that as a matter of physics, a metal vessel (such as a truck), when struck by lightning, operates (not necessarily perfectly) as a Faraday cage so that lightning which hits the HME will tend not to pass into and through the occupant of the vehicle but will pass across the metal surfaces of the vehicle into the earth.
…
[59] … It is common ground that if a truck suffers a lightning strike, there is a danger that air-filled tyres will explode as the electric current passes through them to earth. It is also common ground that nitrogen-filled tyres will not explode.”
“The first is the prospect of the HME being struck by lightning and some of that electrical charge passing into a person within the vehicle. Secondly, it is common ground that a HME operating on air-filled rubber tyres is in danger if struck by lightning, as the tyres are vulnerable to explosion, leading to a loss of control of the vehicle. The answer to this problem is to fill the tyres with nitrogen rather than air which contains oxygen. This avoids the tyres exploding.”5
BMA had addressed these concerns, in a Trigger Action Response Plan (the Lightning TARP) within its Severe Weather Policy, by prescribing actions to be taken in the event of lightning. The Lightning TARP required the operator of an HME with tyres filled with nitrogen to a purity of 94.5% or less (or filled with air) to “park up” in a safe location when lightning strikes were detected within 30km-16km from the mine (Level 2 alert conditions). However, the operator of an HME with tyres filled with nitrogen to a purity of 95% or more was to continue to operate at Level 2 and, subject to a supervisor’s or open-cut examiner’s direction to do otherwise, the operator was to continue to operate when lightning strikes were detected less than 16km from the mine (Level 3 alert conditions).
The 166 Directive required at Level 2 alert conditions that the operator of an HME “park up”, exit the cabin, relocate to a safe building, and remain there until the Level 2 alert has been lifted.
The President noted:
“The critical difference between the Lightning TARP as instigated by [BMA] and the 166 Directive is that:
by the Lightning TARP, HME with tyres filled to 95% nitrogen may continue to operate through both a Level 2 and Level 3 event; and
by the 166 Directive, work must cease at Level 2.”6
“[The chief inspector] formed the view that, notwithstanding the operation of the Severe Weather Policy and the associated TARPs, risk of injury to a person may reach an unacceptable level. Upon forming that view, [the chief inspector] gave the directives which effectively alter the operation of the Lightning TARP.”7 (footnotes omitted)
“(a) whether the belief was reasonable; and
whether the 166 Directive was a directive which prevented the risk reaching an unacceptable level.”8
“(i) form the view that risk to coal mine workers is greater if they continue to operate the subject HME during Level 3 [alert] conditions than it is if they are parked up – a view the Court ought readily form given it is a matter about which the lightning experts are agreed; and
as a consequence of forming [that] view …, form the requisite reasonable belief that by continuing to operate subject HME during Level 3 [alert] conditions risk may reach an unacceptable level; and
conclude that ceasing operation of the subject HME during Level 3 [alert] conditions is reasonably achievable; but
form the view that parking up and entering a safe building prior to Level 3 [alert] would not reduce risk, or could not be reasonably complied with – a matter about which the lightning experts are not agreed”.9
“In practical terms, there are two questions which are related to each other:
assuming the lightning strike on a HME may cause the tyres of the vehicle to explode, and thereby risk harm to the occupant, is the operation of those vehicles at Level 3 of the TARP an acceptable risk when the tyres are filled with nitrogen (the exploding tyres issue); and
assuming that HMEs with rubber tyres may be struck by lightning but the tyres can’t explode, does the prospect of them operating at Level 3 of the TARP otherwise constitute an unacceptable risk to workers within the vehicle (the Faraday cage issue).”
The President resolved the first question by considering the evidence of the experts tendered by the parties on HME tyres exploding in lightning strikes, the evidence adduced by BMA about its systems, and the evidence of two inspectors called by the chief inspector. His Honour concluded that there was agreement among the experts “that nitrogen-filled tyres will not explode upon lightning strike”10 and that the systems BMA had in place achieved the aim of ensuring that nitrogen levels in the HME tyres are at 95% in vehicles operating at Level 3.11 Neither party disputed these findings in this Court.
The evidence, expert and factual, relevant to the second question was less satisfactory. However, the President made the following deductions, which were accepted by both parties in this appeal:
“(a) lightning strikes at Peak Downs Mine are relatively common during storm season;
lightning strikes upon HMEs at Peak Downs Mine during storm season are also relatively common;
HMEs have a Faraday cage effect so that the energy of a lightning strike which hits them is disbursed across the surface of the vehicle;
that Faraday cage effect gives partial protection to those inside the HME from the strike;
given the construction of HMEs, they do not act as a true Faraday cage;
there are lines of conductivity into different HMEs;
it is not possible to identify all lines of conductivity;
it is not possible therefore to calculate what charge may enter a particular HME;
many of the controls (pedals, levers etc.) within an HME have low levels of resistance to conductivity;
injury or death of a passenger to a metal topped passenger vehicle is all but unheard of; and
(k) there is no identified case of death or serious injury to a coal mine worker who was inside a vehicle at the time of a lightning strike, although that must be qualified in that it has not been general practice to operate HMEs in Level 3 conditions.”12
“[124] In my view, risk to the safety of coal mine workers operating HMEs at Peak Downs Mine in Level 3 conditions may reach unacceptable levels. This is because:
the lines of conductivity into the vehicle include metal controls such as pedals and levers etc.;
the prospect of a coal mine worker touching a metal surface within the HME must be greater if the coal mine worker is busy within the cabin driving and otherwise operating the HME than if it is parked up; and
there is a possibility of death or injury.
[125] I do not consider that the risk to a coal mine worker in a parked up HME in Level 3 conditions may reach unacceptable levels. I form this view because:
there is an absence of anecdotal evidence of injury or death to coal mine workers in HMEs struck by lightning;
the Holle Report shows that metal topped passenger vehicles have significant Faraday cage effect, and a case of death or serious injury to a passenger actually within a vehicle (as opposed to standing near it) has not been rendered; and
it is the pedals and other controls within the HME which have low levels of conductivity resistance and those controls will not need to be manipulated if the vehicle is parked up.
[126] True it is that the safety of the coal mine worker is dependent, to a point, upon them not touching levers and metal surfaces. True also it is that that is dependent upon the discipline of the coal mine worker, but in my view, education and protocols ought to be able to be developed to meet that concern.
[127] In conclusion, the TARP should operate so that operations continue through Level 2 but upon Level 3 being reached, the vehicles must be parked up and the coal mine workers remain in the vehicles until Level 3 conditions have lifted.”
Consideration of the submissions
“29 What is an acceptable level of risk
For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is—
within acceptable limits; and
as low as reasonably achievable.
To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to—
the likelihood of injury or illness to a person arising out of the risk; and
the severity of the injury or illness.”
“The risk must be ‘within acceptable limits’ and ‘as low as reasonably achievable’. Those two considerations are quite different. Some operations may be such that whatever safety measures are taken, the risk cannot be brought ‘within acceptable limits’ and therefore operations must cease. … [If operating] is within acceptable limits of risk, provided [certain steps are taken,] then the question becomes, by reference to all precautions taken, whether ‘the risk is as low as reasonably achievable’.
Provided risk can be brought to an ‘acceptable level’ then some risk is accepted. The [Act] recognises that coal mining operations may not be risk free.”
“Again, it can be seen that in determining whether the ‘risk’ (defined in s 18) is ‘within acceptable limits and as low as reasonably achievable’ regard is to be had to likelihood and consequences. Nothing in the [Act] is suggestive of any balancing of safety and commercial interests.”
As the President noted, s 18 of the Act provides that risk means “the risk of injury or illness to a person arising out of a hazard” and is “measured in terms of consequences and likelihood.”
In this Court, it was common ground that on the proper construction of s 29 of the Act:A decision about whether the level of risk to a person from coal mining operations is “within acceptable limits”, for the purposes of s 29(1)(a), is to be made having regard to the absolute measure beyond which the relevant risk is unacceptable. The mandatory considerations in s 29(2)(a) and (b), namely “the likelihood of injury or illness to a person arising out of the risk” and “the severity of the injury or illness” may be all that is required to assess whether a particular risk exceeds the maximum risk acceptable to the community.A decision about whether the level of risk to a person from such operations is “as low as reasonably achievable”, for the purposes of s 29(1)(b), is to be made having regard to relevant considerations. In addition to the mandatory considerations, the cost and expense of implementing measures that could further reduce the risk, and any opportunity cost arising from implementing such measures, are likely to be relevant considerations.
The part of the Reasons with which BMA took issue seems to have originated in a written submission on behalf of the chief inspector put to the President below. It was that the Act was “notably different to several other protective statutes” in that the Act “does not by its objects seek to strike a balance between its protective intent and the advancement of commercial enterprise.”13 For the chief inspector it was submitted that the “purpose” of the Act was “unconcerned with striking such a balance” due to “the sheer scale of coal mining operations and the sums of money that flow.” This lack of concern with “striking a balance” was said to be “reflected in the terms of s 29(2)” of the Act. A contrast was drawn with s 18 of the Work Health and Safety Act 2011 (Qld) (WHSA), said to be otherwise analogous to s 29(2) of the Act. The Act did not include a provision like s 18(e) of the WHSA, which requires consideration of:
“the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.” (underlining added in the chief inspector’s written submission)
As the chief inspector’s appropriate concession in this Court shows, the prescription of mandatory considerations in s 29(2) does not exclude any otherwise relevant consideration, such as relevant costs. That concession and the concession in 26(b) above were correctly made in the context of s 29(1)(b). It is difficult to see how costs would not be relevant to the assessment of whether the level of risk from the operations was as low as reasonably achievable.
In the present appeal, the scope of the President’s rejection of “any balancing of safety and commercial interests” is of no consequence. This is because, as the parties’ respective cases developed in the Industrial Court, the only matters in issue before his Honour were matters concerning whether the relevant risk was within acceptable limits. The chief inspector had raised whether the relevant risk was the “lowest reasonably achievable” only in the alternative to his main case below. It was to be considered only if the Industrial Court found that the relevant risk under the BMA Lightning TARP was within acceptable limits. That finding was not made. The alternative case did not arise.
The conclusions at [19] above and the deductions at [20] above concerned matters that were relevant to whether the identified risks were within acceptable limits.
In [124] of the Reasons, the President concluded that whether the relevant risk from BMA operating HME in Level 3 alert conditions under the Lightning TARP may reach unacceptable levels, turned on matters relevant to whether the risk was within acceptable limits, namely: the lines of connectivity into the HME; the greater prospect of a coal mine worker touching a metal surface in the HME if driving or operating the vehicle; and the possibility of death or injury.
The President’s conclusion in [125], that his Honour did not consider that the relevant risk from BMA parking up HME in Level 3 alert conditions under the Lightning TARP may reach unacceptable levels, also turned only on matters relevant to whether the risk was within acceptable limits. Counsel for the chief inspector confirmed in this Court that the chief inspector did not contend that the level of relevant risk from parking up HME in Level 3 alert conditions under the Lightning TARP was not as low as reasonably achievable.
In [126] of the Reasons, the President left scope for education and protocols to be developed to meet concern about the conduct and discipline of coal mine workers that might affect their safety, in respect of not touching levers and metal surfaces.
In the circumstances, the orders made by the Industrial Court on 16 January 2025 gave appropriate effect to the President’s final conclusion expressed in [127] of the Reasons, that:
“the [Lightning] TARP should operate so that operations continue through Level 2 but upon Level 3 being reached, the vehicles must be parked up and the coal mine workers remain in the vehicles until Level 3 conditions have lifted.”
Final disposition
The appeal is dismissed.
The appellant is to pay the respondent’s costs of the appeal.
The directives were issued pursuant to the Act as at 4 December 2023. ↩
BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] ICQ 20 (the Reasons). ↩
Act, s 166(1) (as at 4 December 2023). ↩
Act, s 168 (as at 4 December 2023). ↩
Reasons at [7]. ↩
Reasons at [13]. ↩
Reasons at [8]. ↩
Reasons at [55]. ↩
Reasons at [14]. ↩
Reasons at [64] ↩
Reasons at [82]. ↩
Reasons at [123]. ↩
The written submission cited the Environment Protection Act 1994 (Qld) and the Planning Act 2016 (Qld), as examples. ↩
BM Alliance Coal Operations Pty Ltd
Le Roux [2025] QCA 177
The appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal.