Inspector Stephen McMartin v Oakbridge Pty Limited; Inspector Stephen McMartin v Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady

HEARING DATES: 05/29/2003; 07/03/2003 EXTEMPORE JUDGMENT DATE : 07/10/2003

PROSECUTOR: Mr S Crawshaw SC Mr M Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co

DEFENDANTS: Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke Mr S Rothman SC LEGAL REPRESENTATIVES: Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal

DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea

JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 10 July 2003

Matter No's IRC 3207/00, 3208/00, 3209/00 Inspector Stephen McMartin v Oakbridge Pty Limited

Prosecutions pursuant to s16(1) of the Occupational Health and Safety Act 1983

Matter No's IRC 3219/00, 3220/00, 3221/00, 3225/00, 3229/00, 3233/00, 3237/00, 3241/00, 3245/00, 3249/00

Inspector Stephen McMartin and the following personal defendants:

3219/00, 3220/00, 3221/00: Richard Porteous; 3225/00: Phillip Pritchard; 3229/00: Michael Alston; 3233/00: Mark Robinson; 3237/00: Jonathon Romcke; 3241/00: Michael Coffey; 3245/00: Christopher Nicholls; 3249/00: Terence Shacklady.

Prosecutions arising under s50(1) of the Occupational Health and Safety Act 1983 as associated charges. Interlocutory Judgment NSWIRComm 214

1 The specific matters before me are part of a total of 52 Summonses laid by the prosecutor against two corporate defendants - the Newcastle Wallsend Coal Company Pty Ltd (NWCC) and Oakbridge Pty Ltd (Oakbridge) and eight personal defendants alleging offences arising under ss15(1), 16(1) and 50(1) of the Act. The matters currently before me and the issues requiring my consideration and judgment do not touch upon the offences alleged against the NWCC as a defendant in the substantive proceedings.

2 The prosecutions taken in totality arise from a mining accident that occurred at the Gretley Colliery in the Hunter Valley on 14 November 1996.

3 By way of a short description of the relevant events on that day, four miners were killed and a number injured when mining operations broke into former mine workings of the Young Wallsend Colliery that were full of water under high pressure. The resulting inrush of water under high pressure caused the deaths and injuries earlier referred to.

4 Following the accident, an inquiry was undertaken before the Court of Coal Mines Regulation. A Coroner's Inquest was also held. Both of those inquiries were presided over by the Honourable Justice J H Staunton AO CBE QC who was formally appointed as a Coroner for the purposes of the coronial proceedings.

5 In handing down his Report as Coroner with accompanying findings and recommendations, Justice Staunton recommended that an assessment with a view to prosecutions be considered and recommended specifically as follows: In respect of the Newcastle Wallsend Coal Company Pty Ltd that the papers be referred to the Crown Solicitor with a view to his determining whether offences have been committed under sections 15 and 16 of the Occupational Health and Safety Act 1983.

6 As a consequence, prosecutions have been initiated by Inspector Stephen McMartin resulting in the laying of the 52 charges embracing the defendants I have earlier identified in para [1] above.

7 It is apparent that the s50(1) charges involving the eight personal defendants arise as associated charges to the primary offences alleged under ss15(1) and 16(1) of the Act with respect to the two corporate defendants. 8 On 6 December last year, following earlier interlocutory proceedings before Wright P concerning a number of threshold matters involving all of the alleged offences, the matters were set down for hearing before me to commence on 7 July this year.

9 I now have before me an application on behalf of the defendant Oakbridge and the personal defendants, that those charges that are the subject of this judgment are barred in time and ought to be dismissed. Before I turn to consider the issues canvassed in that application, a brief explanation as to the way in which the prosecutions have been broken down into specific time periods is necessary.

10 The 52 charges laid by the prosecutor allege offences covering three distinct time periods, i.e.: (i) on 13 and 14 November 1996 (ii) between about 16 September 1996 and about 13 November 1996; and (iii) between about 22 March 1994 and about 14 November 1996;

11 That break up of the alleged offences respectively reflects Matter No's 3207/00, 3208/00 and 3209/00 involving the defendant Oakbridge. Each of those charges allege offences by Oakbridge pursuant to s16(1) of the Act over the three specific periods. It is alleged that particular persons not in the defendant's employment during or at the specified periods were exposed to risk arising from the conduct of the defendants undertaking. The particular persons identified differ as between the three alleged offences as do the alleged particularised failures (with some commonality between them).

12 The associated s50(1) charges involving the personal defendants are likewise identified relevant to one or all of the three specified time periods. The correlation between them and the three s16(1) charges involving Oakbridge is that with each of the s16(1) charges, there is a corresponding s50(1) charge alleged with respect to one or more of the personal defendants identifying similar particularised persons and failures and adding the necessary additional element for an offence under s50(1), that is, that the named defendant being a person concerned in the management of the relevant Corporation is deemed to have contravened the same section.

13 In the matter numbers I have before me and given the time periods I have identified for the purposes of the charges laid, the breakdown as between Oakbridge and the personal defendants is as follows:

Time Period Matter No of s16(1) offence citing Oakbridge as defendant Associated personal defendant matter numbers

(i) On 13 November 1996 and 14 November 1996 3207 3219 - Richard Porteous 3220 - Richard Porteous 3225 - Phillip Pritchard (ii) Between about 16 November 1996 and about 13 November 1996 3208 3229 - Michael Alston 3241 - Michael Coffey 3245 - Christopher Nicholls 3249 - Terence Shacklady 3221 - Richard Porteous (iii) Between about 22 March 1994 and about 14 November 1996 3209 3233 - Mark Robinson 3237 - Jonathan Romcke

14 It was submitted on behalf of the personal defendants that if the offences alleged against Oakbridge are found to be statute barred in time then it must follow the associated charges against the individual defendants are also barred in time - given that for an offence to be made out under s50(1) of the Act it is necessary for the prosecution to establish that an offence was committed by the corporation for which the defendant is deemed liable. I accept that as a proper application of s50(1) insofar as the matters before me are concerned.

15 The institution of proceedings in all of the 52 alleged offences before me were validly commenced on 5 July 2000: Workcover Authority of New South Wales (Inspector McMartin) v Newcastle Wallsend Coal Company Pty Ltd and ors (2002) 116 IR 283 at para [61]. They have been laid pursuant to the 1983 Act then in force.

16 The arguments raised by the parties before me were addressed by reference to the 1983 Act and s49, as then expressed, in particular. For the purposes of this judgment I will refer to s49 of the 1983 Act noting that those provisions are now contained (with some modification) in s107 of the Occupational Health and Safety Act 2001 (the 2001 Act) which was proclaimed to commence on 1 September 2001.

17 While the provisions of s49(1) of the 1983 Act are repeated in s107(1) of the 2001 Act, there is a minor change to the provisions of s49(4) as provided in the counterpart provision in s107(3) of the 2001 Act. S107(3) of the 2001 Act reads: If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified) , proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (emphasis added)

18 As a quick comparison between s49(4) of the 1983 Act and s107(3) of the 2001 Act will disclose, the provisions of s49(4) have been added to by clarifying the issue as to whether there was an implicit requirement for the offender to be identified within the Coroner's report or proceedings for the purposes of an offence appearing to have been committed. This was not an issue before me, the defendant's conceding that point relying on the decision of Schmidt J in WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks (2003) NSWIR Comm 28 at para [22]. The amendment to s107(3) of the 2001 Act only adds weight to the view expressed by her Honour in AGL Gas Networks with which I concur.

19 The primary contention of the defendant's before me is that time for institution of proceedings generally is as provided in s49(1) of the Act that states: Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence.

20 On behalf of the defendants, it was submitted the prosecutor was clearly out of time as the accident giving rise to the alleged offences arose in November 1996 and proceedings were not validly commenced until July 2000. I do not need to consider s49(1) further as the prosecutor relies on the exception provisions of s49(4) to overcome the time limitations of s49(1). S49(4) provides: If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

21 The Coroner's Report was handed down on 7 July 1998. Proceedings in relation to the prosecutions before me were commenced on 5 July 2000.

22 The defendants raise, on one view, a relatively narrow issue in seeking to have the particular charges dismissed as barred in time. The defendants submitted that it did not appear from the coronial material relied upon by the prosecution that the mining at Gretley Colliery was Oakbridge's undertaking as alleged in the offences charged, for the following reasons: (i) Newcastle Wallsend Coal Company was a subsidiary and separate corporate entity to Oakbridge and cannot be taken to be " one and the same person ." (ii) A parent company does not commit an offence against the Act merely because one of its subsidiaries commits an offence. (iii) The material does not show that the development of C heading was Oakbridge's " undertaking ." (iv) The material does not show there was any causal connection between any undertaking of Oakbridge and the risk.

23 The prosecutions submissions and the documentary material I was taken to were to the effect that Oakbridge has been identified in such a way in the coronial report and material as to negative any suggestion that it is not a proper defendant in relation to the s16(1) charges - likewise the personal defendants.

24 As earlier stated, the accident that occurred at the Gretley Colliery on 14 November 1996 has already been the subject of two prior inquiries - one under the Coal Mines Regulation Act 1982, followed by a Coroners Inquiry pursuant to the Coroners Act 1980. In relation to the evidence and material that was before the Coroners Court, the Coroner had this to say in his Report: After receiving evidence on 15 October, proceedings were adjourned and resumed on 25 November when additional evidence was tendered being a CD disk of the evidence before the Court of Coal Mines Regulation which was admissible before this Court. Accordingly, the references in these reasons and findings to particular parts of evidence are references to the evidence given to the Court of Coal Mines Regulation. (p2) and: In determining the manner and cause of death, reference will be made to those parts of the evidence given to the Court of Coal Mines Regulation but without the detail considered necessary to enable that Court to report to the Minister for Mineral Resources under Section 98 of the Coal Mines Regulation Act, 1982 . Nevertheless, the importance of the inquest requires that considerable detail be entered into as the purpose of the Coroner's findings is necessarily different to the Court's findings under the Coal Mines Regulation Act . (p3)

25 Given the nature of the accident and the need to try to ascertain how known abandoned mine workings full of water and gases was able to be mined into with the tragic consequences that followed, extensive inquiries were undertaken and evidence given before the Court of Coal Mines Regulation and a voluminous amount of documentary material produced. That documentary material ranged from original mining maps to those of more recent origin, reports, memoranda and business related newsletters and correspondence, employee records, statements and such like. The material placed before the Court of Coal Mines Regulation was tendered before the Coroners Court. The Coroners Court is not bound by the rules of evidence and procedure (s33 Coroners Act) and some of that material may ultimately prove inadmissible in the substantive proceedings before me. Nonetheless, it all formed part of the material arising from 'the Coroner's report or proceedings' and as such it is available for my consideration as to whether, on an objective consideration of it, the offences as alleged under s16(1) of the Act (as well as the personal defendants) appear to have been committed.

26 In coming to the conclusions that I do and because of the extensive nature of the material, I will rely only on that documentary material specifically identified by the parties in support of their submissions before me. 27 The elements of an offence arising under s16(1) of the Act were not in dispute and are well known: WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (1995) 100 IR 248. That is, with specific reference to Oakbridge: (i) Oakbridge is an employer; (ii) persons who were not employees of Oakbridge were exposed to risks to their health and safety; (iii) the risk arose from the conduct of Oakbridge's undertaking; (iv) the exposure to risk was at Oakbridge's place of work.

28 In relation to those elements, the defendants did not take issue and conceded that it appeared that elements (i), (ii) and (iv) above had been made out as far as the matters before me are concerned. That concession by the defendants was qualified in these terms: For the purposes of the hearing of this preliminary s49(4) issue only and without admissions, no issue is raised by the defendants as to whether or not it "appears" from the coronial material that

· Persons not in the employ of Oakbridge were exposed to risk;

· Gretley Colliery was a place of work for Oakbridge insofar that some of its employees worked for Newcastle Wallsend Coal Company. The defendants do not, however, concede that this Court would make the same or similar findings in respect of those elements at a final hearing.

29 It was acknowledged by counsel for the prosecution and the defendants that prior single instance decisions of this Court had determined that the test as to whether or not it 'appears' an offence has been committed by reference to the coronial material is an objective test: see decision of Kavanagh J in WorkCover Authority of New South Wales (Inspector Maltby) and anor v Abigroup Contractors Pty Ltd and Luis Bustamante (2003) NSWIR Comm 35 at paras [24] and [25].

30 The prosecution submitted that, on one view, under s49(4) of the OHS Act the person to whom it must 'appear' is the prosecutor. In support of that submission counsel for the prosecution submitted that in each affidavit in support of the summons, the prosecutor states: The proceedings in respect of the offence are instituted pursuant to s49(4) of the Occupational Health and Safety Act 1983 . From the proceedings of the Inquest into the deaths of … and/or from the Coroner's report handed down on 7 July 1998, it appears that an offence has been committed against this Act.

31 Accordingly, the prosecution submitted, if on the proper construction and application of s49(4) of the OHS Act 1983 the test is a subjective one, this test has therefore been satisfied by the affidavits of Inspector McMartin.

32 That is, in my view, a submission that is deserving of closer consideration. Nevertheless, in putting it forward, counsel for the prosecution, while not abandoning the subjective test, accepted the objective test, stating: However, having said that, we are content in these proceedings to submit that, even on an objective test, that has been satisfied and we are content to run the case on the basis that we do not have to have the evidence from the prosecutor and the cross-examination which is what was envisaged from the defendant to pursue that line. We are quite happy to say the material looked at objectively, alone, is sufficient to satisfy the test.

33 Given that submission on behalf of the prosecution I will proceed on the basis of applying the objective test to the material before me.

34 Submissions were made as to the proper interpretation to be applied to "appears" in the context in which it is expressed in s49(4). Counsel for the defendants submitted that it should be considered as analogous to that as understood legally as being at a prima facie level such that it is more probable (than not) that an offence has occurred. I do not agree.

35 In the criminal law the meaning of a prima facie case is clear. A finding that a prima facie case has been made out is a finding of law that on the evidence as it stands the defendant could lawfully be convicted of the offence charged. Whether the defendant ought to be convicted depends upon the tribunal being satisfied beyond reasonable doubt on the whole of the evidence before it that the defendant is guilty: May v O'Sullivan (1955) 92 CLR at 654 and see Zanetti v Hill (1962) 108 CLR 433 particularly Kitto J at 442.

36 In the proceedings before me to date, I have not yet got to the stage of considering evidence as understood for the purposes of applying the prima facie test in criminal proceedings. I have the Coroner's report and proceedings before me, some of which may ultimately prove to be inadmissible in the substantive proceedings. In considering that material I am not required to apply any preliminary test to determine its ultimate admissibility as evidence. I am required to consider it and objectively determine whether it 'appears' that an offence has been committed.

37 It is abundantly clear to me that the meaning of the word 'appears' in s49(4) is clear and unambiguous and is able to be intelligibly applied to the subject matter with which it deals if it is given its ordinary and grammatical meaning: Metropolitan Gas Company v Federated Gas Employees Industrial Union (1925) 35 CLR 449 at 305. That decision was referred to in the decision of the Full Bench of the Court in Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286 when considering this issue. The view expressed by the Full Bench in Walco at 292 is one that binds me but it is also one with which I agree. That is, that the Coroner's report of inquest proceedings make it appear or seem from the materials presented or found by the Coroner that an offence has been committed.

38 The defendants do not dispute that Oakbridge was an undertaking at all relevant times.

39 I turn now to consider the Coroner's report and the material to which I was directly referred to by the parties before me relevant to the conduct of Oakbridge as an undertaking and a causal connection with the risk of inrush.

40 The Coroner identified the causes of the tragedy on 14 November 1996 as follows: Causes of the Tragedy The evidence before the Court has demonstrated serious shortcomings in the performance of the Department of Mineral Resources, in the context of Gretley, and that of the mining company, The Newcastle Wallsend Coal Company Pty Ltd. In the case of the mining company, the shortcomings were widespread. They affected every level of management, namely successive mine managers, mine surveyors and certain undermanagers. Those which appear to the Court to be the most important and clearly linked, directly or indirectly, to the tragedy are as follows: · First, the Department was responsible for the creation of RT 523, sheets 2 and 3, which misinterpreted sheet 1. The failure properly to interpret sheet 1 was the consequence of a lack of care on the part of the Department. These plans were potentially dangerous, available and intended to be distributed by the Department from time to time to mining companies. A potential problem would become an actual problem, unless it were recognised beforehand.

· Second, there was a failure by the then mine surveyor (the late Mr Murray) properly to research the Young Wallsend Colliery before depicting the colliery on the mine plan, and in the section 138 application to the Department. · Third, there was a failure by the mine manager, Mr Romcke, to determine the basis upon which the colliery has been depicted, and to recognise that the task had not been properly performed.

· Fourth, there was a failure by Mr Porteous, who succeeded Mr Romcke as mine manager, to discharge the same obligation, namely to determine the basis upon which the old colliery had been depicted, and recognise that it had not been properly researched. · Fifth, there was a failure by both Mr Romcke and Mr Porteous to prevent inrush by devising an appropriate strategy, and in failing to use the technique of risk assessment to assist them in determining that strategy. · Sixth, there was a failure by the Department properly to appraise and evaluate the application by the company under s138. A flawed system was approved. · Seventh, there was a failure by the new mine surveyor, Mr Robinson, to investigate the basis upon which his predecessor had depicted the Young Wallsend colliery, and to recognise that the issue had not been properly researched. · Eighth, Mr Robinson in November 1996 did recognise that there was an issue concerning the depiction of the Young Wallsend colliery, but failed properly to investigate that issue. · Ninth, in early November 1996 Mr Alston, the undermanager in charge, failed properly to investigate reports of water in 50/51 panel made to him by at least two deputies.

· Tenth, that on 13 November 1996, the day before the inrush, Messrs Coffey and Shacklady, both undermanagers, failed properly to investigate the issues raised by the report of Mr McLean, a mine deputy, and failed to inform the undermanager in charge, Mr Pritchard, of the contents of that report. 41 By way of emphasis, the Coroner found that there were demonstrated serious shortcomings by the mining company and, in the case of the mining company, those shortcomings were widespread and affected every level of management, namely successive mine managers, mine surveyors and certain undermanagers. Counsel for the defendants made much of the fact that in the context of that finding no mention was made of Oakbridge and that there was scant reference to Oakbridge in the Coroners Report and relevant materials to which I was referred to by them. The defendants do accept that, for the purposes of an offence appearing to have been committed in accordance with s49(4), the offender does not require to be identified but rather the elements constituting the offence. Notwithstanding that, the defendants submitted, the absence of any mention of Oakbridge within the statement of the Coroner, in pointing to the causes of the tragedy, as well as in other parts of the material, is evidence to show that there was nothing in the conduct of Oakbridge that caused the risk of inrush that exposed persons not in its employment to risks to their health or safety.

42 Further, counsel for the defendants submitted, just because the Newcastle Wallsend Coal Company is a wholly owned subsidiary of Oakbridge does not, of and by itself, make it appear that Oakbridge has committed an offence under s16(1). I agree. What I have to look at in totality are the facts and circumstances in the material from which it would appear that Oakbridge has committed an offence under s16(1) of the Act.

43 To begin with, the fact that the Coroner made no specific reference to Oakbridge in addressing the overall causes of the tragedy does not, in my view, exempt Oakbridge from consideration within the 'demonstrated serious shortcomings' within every level of management, namely successive mine managers, mine surveyors and certain undermanagers. In my view, on any objective consideration of the Coroner's report and the exhibit material that was before him, it would appear that Oakbridge as an undertaking, including its employees, were very much part of 'every level of management' in the day to day operations of the Gretley Colliery.

44 In denoting the relevant facts and circumstances as they appear on objective consideration I refer in the first instance to those parts of the Coroners Report as follows:

· The plans relied upon to mine in the vicinity of C heading in the 50/51 panel were inaccurate (Coronial Report (CR) p1)

· Abandoned mines were recognised as a potential source of danger from inrush (CR p3)

· The location and extent of abandoned mines must be properly researched (CR p3)

· The depiction of the old workings of the colliery (Young Wallsend) are now known to have been wrong (CR p7)

· The inaccurate workings of the Young Wallsend Colliery were depicted by Gretleys surveyor upon the Gretley mine plan (CR p9)

· The Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 Part 3 re Prevention of Inrushes identifies a research and analysis phase that involved a duty on the mine manager in absolute terms (CR p10)

· The responsibilities of the mine surveyor relevant to Gretley and Young Wallsend Colliery required him to have taken account of a number of factors (CR p15)

· Steps found not to have been undertaken by the mine surveyor for Gretley to accurately depict the Young Wallsend Colliery (CR pp 18-19)

· The mine surveyor at Gretley was responsible for the depiction of the Young Wallsend Colliery when it first appeared on the mine plan. That person (Mr Murray) was also responsible for the plan submitted to the Department when the mine sought approval for the development which included the area of the inrush (CR p17)

· The basis on which Mr Murray depicted the Young Wallsend Colliery was manifestly inadequate (CR p20)

· The mine manager in September 1994, Mr Romcke submitted the application under s138 of the Coal Mines Regulation Act 1982 (CR p20)

· Matters that it appears that Mr Romcke did not do to review the completeness and reliability of the information collected by Mr Murray (CR pp20 - 21)

· Mr Porteous appears to have failed to uncover or give sufficient weight to the same issues as Mr Romcke (CR p22)

· No risk assessment undertaken by Mr Porteous or Mr Romcke in respect of the Young Wallsend Colliery (CR p26)

· The technique of risk assessment had been the subject of a discussion paper circulated by Oakbridge pre inrush (CR p 28)

· May 1995 - Mr Robinson appointed as mine surveyor at Gretley replacing Mr Murray (CR p 35)

· Mr Robinson failed independently to investigate the basis upon which Mr Murray depicted the Young Wallsend Colliery workings on the Gretley mine or performed that task inadequately (CR p 36)

· Coal Mines Regulation Act 1982 establishes a regime whereby reports of conditions in the mine are passed from one level of management to the next (CR p 36)

· Water problems in 50/51 panel were reported in the first week of November 1996. Findings of reports by deputy and undermanager in relation to that and that Mr Robinson did refer to a water problem at Gretley to Mr Hartley prior to inrush (CR pp 37 - 40)

· Mr Robinson's checks in relation to water in the mine pertinent to the depiction of the Young Wallsend Colliery in the mine plans did not go far enough (CR p 41)

· No follow through by undermanagers of report by Mr McLean re water seepage at C face heading prior to inrush (CR pp 41- 44)

45 In tracing the history of facts and circumstances leading to the inrush on 14 November 1994, the Coroner identified the specific failures that ultimately caused the inrush. While some of those failures relate to the Department of Mineral Resources, the majority of them go to the corporate undertakings involved in the research, planning, development and operation of the Gretley Colliery. It would appear that those corporate undertakings, taken together, were, at all relevant times, Oakbridge and the Newcastle Wallsend Coal Company. The Coroners Report identified the root cause of the inrush on 14 November 1996 as the failure by mine managers and mine surveyors at Gretley to be alert to the defects in the original mine plans upon which the mine plans accompanying the application for the lease by the Newcastle Wallsend Coal Company was based and, it would appear, decisions as to ongoing mining activities at Gretley were based on. Those management persons and the mine surveyors appear at all relevant times to be employees of Oakbridge. On the material before me it does not appear that those employees were simply supplied by Oakbridge to Newcastle Wallsend Coal Company in a situation akin to a labour hire company. In my view, on the material before me, it would appear that the overall mining operations that ultimately gave rise to the incident of potential risk were so connected with the business and activities of Oakbridge that they occurred in the course of the undertakings of Oakbridge. In support of that assertion and bearing in mind the cumulative causes of the inrush as identified in the Coroners Report, I refer to the following facts and circumstances as they appear relevant to Oakbridge and its conduct as an undertaking in relation to the s16(1) offences: (i) The Newcastle Wallsend Coal Company Pty Ltd is a wholly owned subsidiary of Oakbridge. In numerous exhibit materials before me, particularly on letterhead, the Newcastle Wallsend Coal Company is described as a unit of Oakbridge Ltd: Incorporated in New South Wales. (ii) The Gretley Colliery is owned by Oakbridge Ltd. Numerous exhibit letterheads and pre inrush mine maps in the exhibit material before me would appear to attest to that fact as well as document 6.29 and 6.37 in exhibit P1 before me. While the letterheads and logos on mine maps as depicted may not of and by themselves be ultimately determinative as far as Oakbridge's criminal liability is concerned, what they do give every appearance of portraying is an undertaking, namely Oakbridge, actively participating in the mining activities at Gretley - and utilising their name on letterheads and other mine maps as indicators of their corporate identity to assert that active role. (iii) The Newcastle Wallsend Coal Company Pty Ltd was the unit (or wholly owned subsidiary) of Oakbridge granted the lease to operate the mine at Gretley. Oakbridge as an undertaking owned and operated mines other than Gretley Colliery, for example, Ellalong Colliery. As well, see part of document 6.39 in P1 which are extracts from a staff newsletter for Gretley employees that appear to emanate from the Human Resources Manager for Oakbridge, Ms Lorraine Sturgeon. Apart from any other information contained in those extracts, there is a Safety Alert entry drawing the attention of Gretley employees to a safety issue that had occurred at Ellalong in October 1996 with recommendations arising from the incident. That Safety Alert appears to indicate that Oakbridge took an active role in overseeing safety issues at its collieries, including Gretley. Also, in 6.39 there is a statement from Ms Sturgeon that: Oakbridge Audit Team to carry out safety audit at Gretely Colliery in late November (more information later) (iv) As part of its overall undertaking in mining activities, Oakbridge employed and appointed mine managers to its mines. At Gretley the successive mine managers that are identified are Mr Pala, Mr Romcke and Mr Porteous. Successive mine managers and mine surveyors at Gretley were employed by Oakbridge covering the three specific periods of the alleged s16(1) offences before me. Those employees of Oakbridge, particularly the mine surveyors at Gretley, were directly involved in researching and drawing up the initial and ongoing relevant mine maps - particularly those that formed part of the submission by Newcastle Wallsend Coal Company Pty Ltd to the Department of Mineral Resources seeking the grant of lease for operations at Gretley. That application for the grant of the lease included, by necessity, depiction of the old Young Wallsend workings - the source of the inrush on 14 November 1966. That depiction had been undertaken by the mine surveyor at Gretley, an employee of Oakbridge, as a result of the research undertaken by him. In my view, the activities of the mine surveyor at Gretley appear to be activities undertaken by Oakbridge in order to facilitate the application for the mining lease made by NWCC. (v) Oakbridge as an undertaking and its management employees were involved in the day to day management of Gretley Colliery at all relevant periods of the alleged s16(1) offences before me. Those employees include Mr Romcke and Mr Porteous. As well, Ms Lorraine Sturgeon, Human Resources manager employed by Oakbridge, was involved in disseminating information to persons working at Gretley Colliery concerning human resources issues, safety audits and ongoing mining activity reports including MW 50/51, the point of inrush on 14 November 1996. (see 6.39 in exhibit P1 already referred to) (vi) In the overall management and operation of mines within the Oakbridge Group, Oakbridge appointed managers at its collieries. At those collieries those persons had positions and responsibilities under the Coal Mines Regulation Act 1982 to establish and maintain a regime to address the question of inrush and to ensure that there was a regime in place that ensured that reports of conditions in the mine were passed from one level of management to the next. That regime by way of an overall system of work would appear not to have been adequately followed at Gretley having regard to the Coroner's shortcomings of management as expressed by him. (vii) Reference to document 13.18 in exhibit P1 is a letter under the letterhead of Oakbridge Pty Ltd - Gretley Colliery, which is an application dated 18 October 1996 to the Department of Mineral Resources under the Coalmines Regulation Act , s138(2)(d), seeking permission to: Drive the installation roadway of MW48 and MW49 to a width of 6.0m. This width is required so that the miniwall equipment can be installed in these roadways. The accompanying plan A3-1996-47 shows the position of these roadways. Further, document 3.07 in exhibit P1 is a letter dated 5 November 1996 under the letterhead of Oakbridge Pty Ltd - Gretley Colliery to the Mine Subsidence Board which states: RE: GRETLEY COLLIERY - PROPOSED WORKINGS With reference to your recent request for information regarding our proposed workings in the next 5 years, please find enclosed a copy of our plan A3-1996-49. These proposed workings are an indication only and actual mine workings may vary from this plan. Both of those letters were signed by Mr Porteuos as the Mine Manager. The accompanying map referred to in the letter of 18 October 1996 outlines MW50/51 and identifies the roads to be installed in that area. I emphasise again that MW50/51 are the panels which were the site of the inrush on 14 November 1996. Those items of correspondence add strongly to the appearance that Oakbridge as an undertaking was an active player in decisions taken in relation to actual day to day mining activities at Gretley as well as future mining proposals. They support, in my view, the appearance of Oakbridge as an undertaking being inextricably caught up in relevant decisions about mining operations at Gretley. (viii) In furtherance of the appearance arising from material before me as to Oakbridge's conduct in its activities at Gretley, it would appear that Oakbridge as an undertaking and its management were engaged in the most simple of tasks of appointing certain persons to be drivers of specified machinery at the Gretley Colliery (see document 43.03 in exhibit P1) as well as overseeing, as I have already stated, many of the management decisions and consequent activities of the Gretley Colliery. (ix) Management employees and the then mine surveyor were, it appears, on notice in the period leading up to the inrush that there was an issue with water MW50/51 to the extent which was not clear but should have been followed through. 46 Overall, from the material I have considered, taken in its totality, it appears to me that Oakbridge as an undertaking was relevantly involved in the research, development and ongoing operation of the Gretley Colliery at all relevant times. In short, as an undertaking, Oakbridge's fingerprints appear all over the Gretley Colliery in all respects relevant to the s16(1) offences before me.

47 As an undertaking, its conduct in relation to the Gretley Colliery would appear to be part of those serious shortcomings identified in the Coroners Report affecting 'every level of management, namely successive mine managers, mine surveyors and certain undermanagers' that went directly to creating the risk of inrush that exposed persons not in its employment to risks to their health and safety as particularised.

48 To the extent that Oakbridge as an undertaking was actively involved in events post the inrush maintains the appearance of an undertaking actively involved as part of a continuum of events and not, as has been submitted, a parent company rushing to assist a subsidiary at a difficult time.

49 For all the above reasons and having considered the material relied upon, I am satisfied it would appear that the conduct of Oakbridge as an undertaking gave rise to the risk of inrush relevant to the s16(1) offences as charged.

50 For the same reasons I am satisfied that, having considered the material relied upon, the associated s50(1) charges in respect of the above-named personal defendants should stand as charged.

51 The applications by the defendants in relation to matters before me is dismissed.

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