Kuypers v Ashton Coal Operations Pty Ltd

Judgment 1HIS HONOUR: Nature of proceedings and background The plaintiff has brought proceedings seeking damages for injuries which he suffered as a result of an incident which occurred on 12 August 2012 at a coal mine owned by the first defendant. At the time of the incident, the plaintiff was employed by the second defendant/first cross-claimant (hereafter referred to as SCD). 2At the time of the incident, SCD had a workers compensation insurance policy with the first cross-defendant (hereafter referred to as EML). Following notification of the claim by the plaintiff to SCD, EML accepted liability and made payments of compensation. 3When the plaintiff commenced these proceedings on 19 December 2012 SCD advised EML and on 23 January 2013 SCD received confirmation from EML that its solicitors would be acting on SCD's behalf in respect of the claim. 4Thereafter on 17 April 2013 SCD received notification from the solicitors for EML that indemnity would be no longer extended by EML. EML advised that the appropriate insurer for the plaintiff's claim was the second cross-defendant (hereafter referred to as CMI). 5On 22 April 2013 the solicitors for SCD wrote to CMI requesting confirmation that it would indemnify SCD in respect of the claim brought by the plaintiff. On 23 April 2013 CMI responded and denied that it was liable to indemnify SCD. 6SCD has issued a cross-claim against EML and CMI seeking a declaration that either EML or CMI was liable to indemnify it in respect of the plaintiff's claim. EML and CMI have filed defences denying liability. 7By notice of motion, dated 13 December 2013, SCD sought an order pursuant to UCPR r 28.2 for a separate determination of the question. 8On 10 March 2014 Justice Schmidt ordered that the following separate question be determined in advance of the trial of the issues in the plaintiff's statement of claim: Whether SCD is entitled to a declaration that either: (i) EML is liable to indemnify it against any legal costs and liability for damages and/or compensation arising from the plaintiff's claim; or (ii) CMI is liable to indemnify SCD against any legal costs and liability for damages and/or compensation arising from the plaintiff's claim. 9It is this separate question which is before the Court for determination. Factual background 10Except where otherwise indicated, I find the facts to be as follows. 11SCD was first registered on 19 May 2006 in New South Wales. In February 2011 the business of SCD was separated into two entities - Silver City Drilling (Qld) Pty Ltd which took over the Queensland contracts and SCD which held the New South Wales contracts. 12The evidence as to the business of SCD was given primarily by John Fletcher who at the time when he gave evidence was the Safety Co-ordinator of SCD and who had been employed in that position in October 2010. His evidence comprised an affidavit sworn 8 May 2014 in these proceedings and evidence which he gave under cross-examination on that affidavit. Part of that cross-examination was directed to apparent inconsistencies between a statement made by him on 12 March 2013 and the contents of the affidavit. 13The statement by Mr Fletcher on 12 March 2013 was prepared by an investigator retained by EML. In the light of subsequent events (i.e. the declinature of liability by EML) and the form of the statement, it is apparent that the investigator was seeking information which would enable EML to decline liability. When preparing the affidavit of 8 May 2014 Mr Fletcher had the benefit of the sales ledger of SCD between 2009 and 2013 with which to assist his recollection. Accordingly, to the extent that there is any conflict between the statement of 12 March 2013 and Mr Fletcher's affidavit, I prefer the affidavit and the evidence which Mr Fletcher gave in cross-examination. 14EML sought to read an affidavit of Rhys Dutton, sworn 17 June 2014. In that affidavit Mr Dutton purported to analyse the sales ledger of SCD for the period 1 January 2009 to 31 December 2012 with a view to identifying what work was performed by the company during that period in and about coal mines. Because Mr Dutton was not an accountant but an employee of the solicitors acting on behalf of EML, and because of the questionable nature of some of the methodology used by him, e.g. identifying whether some companies were engaged in the coal industry by reference to an internet search, I rejected the analysis carried out by Mr Dutton as evidence of the fact, but allowed it to be placed before me as a submission. 15Allowing for the limitations of the analysis by Mr Dutton I found the contents of the document, when taken with the evidence of Mr Fletcher, helpful in determining SCD's "character and business". 16On the basis of what he was told by Nathan Wilson (the Managing Director of SCD between 19 May 2006 and 12 March 2013), Mr Fletcher deposed that SCD commenced operations in 2006. It undertook exploration drilling in a variety of industries including the mining industry, gas and coal industry, oil industry and precious metals industry. He said that the company both then and now holds itself out as operating throughout Australia, with extensive experience in directional control drilling, deep diamond coring as well as air and mud drilling. 17"Directional drilling" is the intentional deviation of a well bore from the vertical. Although well bores are normally drilled vertically, it is sometimes necessary or advantageous to drill at an angle from the vertical. Controlled directional drilling makes it possible to reach sub-surface areas laterally, remote from the point where the bit enters the earth. SCD had carried out this type of drilling principally in the coal and gas industry. 18"Diamond coring" involves the use of a drill bit that has a steel body surfaced with a matrix and industrial diamond. Cutting is performed by the rotation of the very hard diamonds over the rock surface. SCD has carried out this type of drilling principally in the hard rock exploration drilling industry. 19"Air drilling" is a method of rotary drilling that uses compressed air as the circulation medium. The conventional method of removing cuttings from the well bore is to use a flow of water or drilling mud. Compressed air removes the cuttings with equal or greater efficiency. The rate of penetration is usually increased considerably when air drilling is used; however, a major problem in air drilling is the penetration of formations containing water, since the entry of water into the system reduces the ability of the air to remove the cuttings. SCD has carried out this type of drilling in the oil and gas and hard rock exploration drilling industries. 20"Mud drilling" involves liquid being circulated through the well bore during rotary drilling. In addition to its function of bringing cuttings to the surface, mud drilling cools and lubricates the bit and drill stem, protects against blowouts by holding back sub-surface pressures, and deposits a mud cake on the wall of the borehole to prevent loss of fluids to the formation. SCD has carried out this type of drilling in the oil and gas and hard rock exploration drilling industries. 21SCD initially started out as a hard rock driller, i.e. exploration drilling for minerals and precious metals. From 2006 the quantity of work which it performed for companies in the coal industry increased. From October 2010 until August 2012 when the plaintiff was injured, most of the work which SCD performed was for coal miners. The work performed by SCD at coalmines was exploration drilling, drilling service holes and drilling to enable dewatering of a site. Service holes are drilled for the introduction underground of materials such as aggregate, powerlines and whatever else is needed below ground to carry out mining. 22SCD over the years operated a fleet of drilling rigs and support vehicles. As of May 2014 the fleet of rigs included: (i) A Gallagher 660 Rack and Pinion Rig with automatic rod handling and 660,000 lbs pullback; (ii) A Schramm T130XD with auto rod handling system and 138,000 lbs pullback. (iii) A Schramm 685W with hands-free rod handler and 94,000 lbs pullback. (iv) A KWL1600 with hands-free rod handler; (v) A Hydco P1200 with hands-free rod handler; (vi) A LF90 track based rig. 23In May or June 2010 the head office of SCD moved to Port Macquarie. Clerical duties were carried out there. From 2010 the company had a workshop at Unanderra. From early 2012 the company also had a workshop at Port Macquarie. The work performed in the workshops was general maintenance, rig inspections and repairs to any of the rigs once they came off a particular job. That work would usually be completed at the workshop and then the rig would be transported to the next site. Each of the rigs in the SCD fleet can be used for hard rock exploration drilling or drilling in the coal and gas industry. 24The practice of SCD has been to set up a workshop and office in any location where it was carrying out substantial work. That office and workshop were only to be used by SCD and not by the entity for which the work was being performed. Otherwise the administration and the plant for projects were maintained out of the Unanderra or Port Macquarie workshops. 25Mr Fletcher said that although since 2006 SCD performed most of its work for coal mines, it was always looking for work beyond the coal industry. He said that SCD was available generally for any sort of drilling work which constituted an attractive contract. Such a contract could be anywhere in Australia for any type of drilling. He said that it just so happened that between 2009 and the present time, most of the work performed by SCD was for coal mines. 26By reference to the SCD sales ledger, during the year 2009 out of 151 contracts, 50 were for entities other than coalmines. Those contracts accounted for just over 50 percent of the company's earnings. In 2010 out of 165 contracts, 5 were for entities which were not coal mines and those contracts accounted for less than 1 percent of the company's earnings. During 2011 all of the contracts entered into by SCD were with coal mines. In 2012 out of 65 contracts which SCD entered into, 7 were with entities other than coalmines and the earnings from those contracts amounted to approximately 12 percent of the earnings of the company. 27In December 2012 SCD undertook water bore drilling activities at the Pandi Pandi pastoral lease in north-eastern South Australia. This work was performed for Mr Oldfield, who in March 2013 became the Managing Director of SCD. In early 2013 SCD carried out gas drilling for Metgasco in the north-eastern corner of New South Wales. During 2013 substantial work was performed for Armour Energy Ltd involving drilling for shale gas and associated liquid resources in northern Queensland. Work was performed for CTR Constructions in 2013 involving exploration drilling for the expansion of a gravel quarry at West Port Macquarie. 28The records of SCD show that since 1 August 2010 until 2013, 7 of its employees suffered injuries performing work in and around a coal mine and that EML accepted liability in relation to each claim and paid it. Despite denying this claim, EML has renewed SCD's insurance. SCD has not at any time sought insurance from CMI. Submissions 29SCD submitted that the indemnity question related only to whether or not it was at all material times an employer in the coal industry. It submitted that this issue was resolved by the evidence of Mr Fletcher as to the nature of SCD's business. 30SCD submitted that the indemnity question was to be determined upon the test established by the NSW Court of Appeal in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348. In that case Allsop P (with whom Giles and Bell JJA agreed) held at [52]: "52 Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company's character and business." 31SCD submitted that if because of its character and business it is found that SCD was not an employer in the coal industry, pursuant to ss7A and 9A of the Workers Compensation Act 1997 and Workplace Injury Management and Workers Compensation Act 1998 respectively, then EML is and was liable to indemnify SCD. If, on the other hand, because of the nature and character of its business SCD is found to be an employer in the coal industry, then CMI is and was liable to indemnify it. 32SCD submitted that it was therefore entitled to a declaration that one or other of EML or CMI was liable to indemnify it against any legal costs and liability for damages and/or compensation arising from the plaintiff's claim. Consequent upon such a declaration it sought orders for the costs of the determination of the separate question. EML 33EML accepted that if the Court determined that at the relevant time SCD was an employer in the coal industry then CMI was liable to indemnify it. If the Court determined that SCD was not an employer in the coal industry, then EML was liable to indemnify it. EML submitted that the central issue would be determined by an examination of the "substantial character and business' of SCD. 34EML submitted that from the time that SCD restructured its business in February 2011 until the beginning of 2013, the nature of its business was "in the coal industry". EML submitted that its business during that period was to provide drilling services which were an integral part of the coal operations being carried out by its customers. The cases which EML relied upon to establish that proposition were: King v Central Reference Board & Ors; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; 77 CLR 123; R v Moore & Ors; Ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; 140 CLR 470, R v Coldham & Ors; Ex parte The Australian Workers Union [1983] HCA 35; 163 CLR 415 and Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [1948] HCA 9; 77 CLR 123. 35In Thiess EML relied upon the dissenting judgment of Dixon J at [141] where his Honour said: "As a matter of reason, it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open-cut mining so as to form an indivisible element in the undertaking or may be relegated to separate and independent engineering operations outside the undertaking. In the one case I should have thought that they might quite well be considered part of the industry. In the other case I do not think they ought to be so considered. The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment. It must in the end come down to a matter of degree. It is not like the cases of Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598 where the distinction rested upon the character of the operations, upon function. There we thought that the transport of coal in distribution was to be distinguished from coal-mining as an industry. In the present case the prosecutor has not satisfied me that the major repair and overhaul of the machines is conducted otherwise than as an integral part of the mining undertaking, because of the following factors. The operations, although carried on by a distinct company, are under one control and management with the mining operations. The distinct company is a subsidiary. The works are situated close to the open cut, about three-quarters of a mile away, and the site was obviously chosen for that reason. The site is variously described as "upon" the open cut, as adjacent to but outside the area of the open cut and as upon the mine-owner's land but outside the fence. Although some other work has been done, the repair and overhaul of the mining machinery was the purpose of setting up the engineering shop and substantially, it has no other present purpose. It was set up because of the inconvenience, and I would assume cost, of having the work done by outside engineering establishments. Another workshop for minor repairs and adjustments is in the open cut. Though that belongs to the mining or excavating company there is an interchange of tools and spare parts. The major repair and overhaul of the machines doing the mining is of course essential to the mining operation and to do it as part of the same undertaking may be considered to give all the advantages of expedition, co-ordination and reduction of cost that are supposed to arise from unity of control and proximity. The fact that the operations of mining and of major mechanical repair are divided between distinct legal entities ought not, where the question is whether they form a main and an incidental part of the same undertaking, to weigh against the facts that they are under one control and management and conducted in the same interest." 36EML also relied on the cases of Moore and Coldham where the analysis of Dixon J was relied upon rather than that of the majority in Thiess. In Moore EML cited the analysis of Jacobs J where his Honour said at 477: "It is abundantly clear that the four mining companies each wish to have constructed a mine or mines with all ancillary works. It is equally clear that the other companies propose to engage in the work of constructing the mines and all their ancillary works. Nothing could be more closely related to metalliferous mining than constructing or having constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation. See Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union per Barwick C.J., (1976) 51 ALJR, at p 268 . The facts in the last-mentioned case were quite different. Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case. The decision does not assist the present applicant. The argument of the applicant has the extraordinary result that the metalliferous mines and their ancillary works would be constructed without anybody engaged in that construction being engaged on work in or in connexion with metalliferous mining. It seems to me that the proposition has only to be stated in order that it may be seen how untenable the argument is. Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works." 37EML accepted that SCD was an independent contractor who would drill for anyone who wanted a hole drilled. It submitted that even allowing for that fact, it could not be said that just because all that it did was provide a service, it could not also be part of the industry for which that service was provided. EML submitted that if the service which it provided was integral to the coal industry, then the statutory test was satisfied. It submitted that the three forms of work carried out by SCD were each integral to the coal mining industry, i.e. exploration, providing service holes and dewatering. CMI 38CMI submitted that the principle to emerge from Central West Group Apprentices and Thiess was that "if an employer of a worker provides services to a coalmining company, but is not actually engaged in the extraction, treatment, marketing and transport away of extracted coal, the conclusion that the entity is "in the coal industry" as distinct from the relevant service industry is an unlikely one. 39CMI submitted that while the source of the income of SCD, both before and after the plaintiff's accident was not irrelevant, it was not determinative. It submitted that SCD's source of income at any given time was no more than one factor which was far from conclusive. 40CMI submitted that the following indicia made it clear that SCD was not "in the coal industry" at the time when the plaintiff was injured: (i) Historically SCD was a drilling company which accepted drilling work from a variety of sources including those in the coal industry. (ii) The evidence is that SCD has and will continue to accept drilling contracts from such a variety of sources. (iii) SCD has consistently held itself out as a general drilling company, not as one confined to doing drilling work for coal mining companies. (iv) Before this claim by the plaintiff and since his injury, EML has sent renewal notices to SCD for it to renew its insurance. SCD has in fact renewed its insurance with EML. EML has paid claims by injured workers employed by SCD. EML has therefore elected to continue its insurance arrangements with SCD, notwithstanding that it has declined liability for this claim in a fashion inconsistent with such an election. (v) There is no evidence that SCD at any time sought insurance from CMI. 41CMI submitted that except for Central West Group Apprentices Ltd and Thiess, the cases relied on by EML were of only marginal relevance. CMI accepted that those cases adopted the statement of Dixon J and applied the test of "integral to the industry". It submitted that the danger in doing so was that one lost sight of the wording of the statute which used the terminology of being "in the coal industry". It submitted that Thiess was the only decision which applied a regulation which used the word "in". The other cases applied the words "in or in connection with". CMI submitted that this was a more expansive concept than the word "in". The effect was to render those cases largely irrelevant to the matters under consideration here. 42CMI submitted that properly read, the minority opinion of Dixon J supported its approach. In that regard, CMI stressed the words at p141.3: "The difference must depend upon circumstances the chief of which must be separateness of establishments in point of control, organisation, place, interest, personnel and equipment. It must in the end come down to a matter of degree." Consideration 43The relevant legislation was set out in Central West Group Apprentices Ltd and it remains unchanged as of the present time. As Allsop P pointed out in that case, the liability of the insurers for payments to the plaintiff depended upon the proper construction of the legislation. Section 7A of the Workers Compensation Act 1997 (NSW) is in the following terms: "(1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company: (a) Division 6 of Part 4, (b) Sections 156 and 156B, (c) Divisions 1A, 2-5, 6A and 7 of Part 7. (3) For avoidance of doubt: (a) an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and (b) a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)." 44It was common ground that for EML to be successful, the section would have to be construed so that the "workers compensation company" and "the insurer under this Act" was CMI and that SCD was "an employer in the coal industry". The central issue before this Court is whether SCD was in fact "an employer in the coal industry". 45Section 9A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is in the following terms: "1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company: (a) Sections 146 and 146A, (b) Parts 3, 4, 5, 6, 7, 8 and 9 of Chapter 5. (3) For avoidance of doubt: (a) an employee of an employer in the coal industry is not eligible to make a claim under Part 9 of Chapter 5, and (b) a person who is taken, under Schedule 1, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)." As can be seen, the same construction issue arises. 46When construing those sections in Central West Group Apprentices Ltd Allsop P said: "37 Recognising ultimately that the enquiry as to meaning is text based, the task is to give context to the phrase "employers in the coal industry". It is not the employee that is to work in the industry, but the employer must be "in" the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be "in" the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term "coal industry"; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is "in" the latter." 47In view of the emphasis which was placed on the decision in Thiess, the treatment of that case by Allsop P is of assistance: "38 Whilst they cannot be taken to govern or legally bind this Court since they concern different provisions and different words, a number of cases give assistance in the resolution of the problems by the consideration of similar expressions. In The King v Central Reference Board; Ex parte Thiess (Repairs) Pty Limited [1948] HCA 9; 77 CLR 123 a question arose whether a company whose sole business was the repair of machinery could be said to be engaged in, or to be in, the coal mining industry. Its business was situated not far from a coal mine operated by a sister company (all the shares in the two companies being owned by the one person). The question was relevant because the Central Reference Board had authority only to deal with disputes "in the coal mining industry". After discussing the meaning of the phrase "coal mining industry" at 130-131, and the factual circumstances at 131-134, Latham CJ turned, at 135, to the question whether the company was "engaged in the coal mining industry" where he said: "Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry. In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contacting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty Ltd did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar." 48Allsop P referred only briefly to the judgment of Dixon J in dissent and said: "39 Dixon J at 140-141 (in dissent) looked at the question of the separateness (or not) of the activity." 49Having referred to Coldham and Moore, Allsop P summarised their effect as follows: "42 These cases are some support for the proposition that one approach to the question of whether an employer is "in the coal industry" is to assess the substantive character of the industrial enterprise in which the employer is engaged and its connection with the coal industry." 50Allsop P set out his conclusions as follows: "50 In my view, CMI is correct in its submissions that the phrase "employer in the coal industry" requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition "in", beyond merely being the employer of a person who works in and about a mine. 51 ... Rather, in its notice of contention CMI submitted that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that it was "in" the coal industry. I agree with that approach. It accords with the notion of the employer, as an entity, being in the industry. It also accords with the authorities to which I have referred dealing with similar questions. 52 Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company's character and business. ..." 51What emerges clearly from Central West Group Apprentices Ltd is that one has to go to the text of the legislation and that it is unhelpful to apply it by the use of glosses which have been placed on words which are similar, but not identical, in other cases. Accordingly, there are dangers in applying concepts such as "integral to the industry" to resolve this issue, rather than focusing upon the text of the legislation. I agree with the submissions of CMI to that effect. 52EML placed substantial weight on the dissenting judgment of Dixon J in Thiess and in its submissions went perilously close to taking as the relevant test whether the activities of SCD were "integral" to the coal industry, rather than whether it was an employer "in" the coal industry. In any event, a proper reading of the reasoning of Dixon J does not compel the result for which EML contends. 53As CMI submitted and as Allsop P noted, the difference between the two alternatives identified by Dixon J at p141, was the "separateness" of the two companies in point of "control, organisation, place, interest, personnel and equipment". In line with that approach, the matters particularly identified by Dixon J as leading to his conclusion were that both companies were under one control and management and that the engineering company was a subsidiary. Dixon J noted that the works of the engineering company were situated close to the open cut and that the site had obviously been chosen for that reason. He noted that the repair and overhaul of the mining machinery was the reason for setting up the engineering shop in that location. Dixon J observed that the co-location of the engineering works with the open cut occurred because of the inconvenience and cost of having work done by an outside engineering establishment. 54None of these important factual matters which were identified by Dixon J and which clearly contributed to his decision apply in this case. SCD was completely independent of any of the mining companies for which it performed work. It was not associated with any particular coalmining enterprise but performed work for many. Most importantly and uncontroversially it held itself out as providing drilling services for any entity be that entity in the coal industry or not. The fact that for a period of two years almost all of the drilling work which it performed was for coalmining companies is indicative of the commercial reality of the availability of drilling work during that time, rather than demonstrating that SCD by reference to its character and business was an employer in the coal industry. 55Of the five factors which CMI identified as establishing that SCD was not an employer in the coal industry, it is the first three (which in reality raise the same issue) which are important, although the other factors are relevant. It follows that I am satisfied by reference to the character and business of SCD that it was not an employer in the coal industry at the time when the plaintiff was injured. At all relevant times it remained independent of those coalmining companies which retained its services. It held itself out and acted as a general drilling company whose services were available to all those wishing to use them, whether that entity was a coalminer or not. Just because exploration drilling, drilling service holes and drilling holes for dewatering purposes were important, and in some cases essential functions within the coal industry, did not make an independent contractor such as SCD which employed workers to perform those functions, an employer in the coal industry. Conclusion 56As agreed between the parties I make the following orders: The Court declares that: