Morrison v Milner and Baldwin

Morrison v Milner and Baldwin - [2009] NSWIRComm 57 - NSWIRComm 2009 case summary — Zoe

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A B Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298; (2005) 145 IR 61 Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Berwin v Donohue (1915) 21 CLR 1 Blatch v Archer (1774) 1 Cowp 64 Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292 Bugg v Director of Public Prosecutions [1993] QB 473 Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189 Cheney v Spooner (1929) 41 CLR 532 Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 Country Energy v Malone [2005] NSWIRC 78; (2005) 138 IR 221 Fabio Benjamin Garcia v R (1996) 85 A Crim R 151 Flynn v Director of Public Prosecutions [1998] 1 VR 322 Gelzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61 Gilmour v Midways Springwood Pty Limited (1980) 49 FLR 36 Hartmann v Commissioner of Police (1997) 91 A Crim R 141 Hood (1997) 91 A Crim R 526 Jacobs v Onesteel Manufacturing Pty Ltd & WorkCover Corporation of SA [2006] SASC 32 Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor (2006) 66 NSWLR 151 Maccarron v Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets & Ors (2001) 23 WAR 355; [2001] WASCA 61 Meng Developments Pty Ltd v Victorian WorkCover Authority and anor (2005) 149 IR 148 Moore-McQuillan v WorkCover Corporation and ors [2005] SAWCT 14 CASES CITED: Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; 137 IR 8 Morrison v United Collieries Pty Limited [2005] NSWIRComm 259; (2005) 146 IR 154 Ousley v The Queen [1997] HCA 49; 192 CLR 69 Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131 Price v Humphries [1958] 2 QB 353 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Quietlynn Ltd v Plymouth City Council [1988] QB 114 Re Williams Bros. Ltd (1928) 29 SR (NSW) 248 R v Bacon (1973) 1 NSWLR 87 R v Brewer (1942) 66 CLR 535 R v Cain [1976] 1 QB 496 R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 R v JS [2007] NSWCCA 272 Rex v Bates [1911] 1 KB 964 at 965; Berwin v Donohoe (1915) 21 CLR 1 Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S Act 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77 T & R (Murray Bridge) Pty Ltd v Gelzinis [2008] SAIRC 35 The Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 The Queen v Cawthorne; ex parte Public Service Association of South Australia Incorporated (1977) 17 SASR 321 Thompson v The Queen (1989) 169 CLR 1 Traveland Pty Ltd v Doherty (1982) 41 ALR 563 United Transport Services Pty Ltd v Evans [1992] 1 VR 240 Walsh v Tattersall (1996) 188 CLR 77 Weisser v Spur Group Pty Limited [2003] NSWIRComm 79; 21 IR 89

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1 These matters concern applications for leave to appeal and to appeal from a judgment of Haylen J given on 14 April 2008 in Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S Act 1983 by virtue of s 50 of the OH&S Act 1983 [2008] NSWIRComm 77. Those proceedings involved a prosecution by Rodney Dale Morrison of Allied Coal Pty Ltd for contravention of s 15(1) of the Occupational Health and Safety Act 1983 ("the 1983 OHS Act"). By virtue of that breach and by operation of s 50 of the Act, John Hamilton Milner, being a person concerned with the management of the company, and Stephen Barry Baldwin, being a director of the company, were allegedly deemed to have contravened s 15(1). 2 The incident giving rise to the prosecution occurred on 20 December 2000. A mining crew was working underground at the Bellambi West Colliery, which is situated at Picton Road, Wilton near Bulli on the south coast of New South Wales. A section of the mine's roof collapsed, covering two members of the crew, Mr Gregory Aspinall and Mr Justin Rowles, with rock. Mr Aspinall suffered fatal injuries and Mr Rowles was severely injured and remained in a coma until January 2001. 3 The trial judge (at [287]) found that: [T]he prosecutor has not been able to establish a breach of s 15 of the Occupational Health and Safety Act 1983 by the company Allied Coal Pty Ltd: there has been a failure to establish a causal connection between the alleged acts or omissions of the company and the particularised risks to safety. It therefore follows that, by operation of s 50 of the Act, neither Mr Milner nor Mr Baldwin are thereby guilty of a breach of the Act. The proceedings in Matter No IRC 860 of 2006 against Mr Milner and the proceedings in Matter No 862 of 2006 against Mr Baldwin are dismissed. The prosecutor is to pay the costs of the defendants in a sum agreed or, in the absence of agreement, as ordered by the Court. 4 The appellant is Mr Morrison. He was, at the relevant time of filing the charges, the Director of Mine and Forest Safety Performance, New South Wales Department of Primary Industries and, according to the judgment of Haylen J, was an Inspector appointed under s 47A of the Occupational Health and Safety Act 2000 ("the 2000 OHS Act"). 5 The appeal was listed for hearing on the four days between 11 and 14 November 2008. As the proceedings developed it became apparent to the Full Bench that the appropriate course was to adjourn the proceedings to allow the Full Bench to consider and determine issues raised by notices of contention filed by the two respondents, Mr Milner and Mr Baldwin. Further hearing dates for the appeals were fixed for five days on 20 to 24 July 2009. This judgment deals with the matters raised by the notices of contention. NOTICES OF CONTENTION

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(c) there is no Rule, order, direction or Practice Direction in force, the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal. 15 It is the case that there are no relevant provisions in the Industrial Relations Act 1996 regarding the use of a notice of contention in appeal proceedings, either criminal or civil in nature. Nor is there any rule or practice direction in force regarding the use of such notices. 16 There does exist a procedure in the Court of Appeal. The use of notices of contention was governed by Part 51 r 21 of the Supreme Court Rules 1970. It is now governed by the Uniform Civil Procedure Rules 2005 ("the UCPR"): see r 50.11 and r 51.40. In civil matters, then, it would be open to a party to file a notice of contention having regard to the combined operation of r 89(5) of the Industrial Relations Commission Rules and Parts 50 (r 11) or 51 (r 40) of the UCPR. See also Weisser v Spur Group Pty Limited [2003] NSWIRComm 79; 21 IR 89 at [51]. 17 Mr R Burbidge QC, for the appellant, however, drew attention to decisions of the Court of Criminal Appeal where it had been observed that "there is no procedure in the Court of Criminal Appeal for the raising of a point of contention, as exists under the procedures of the Court of Appeal": Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 at [41]. See also Fabio Benjamin Garcia v R (1996) 85 A Crim R 151 per Hunt J at 152. Nevertheless, we note there has been a recent instance of a notice of contention being used in the Court of Criminal Appeal: see R v JS [2007] NSWCCA 272. 18 There might be some doubt about whether notices of contention may be used, as a matter of course, in criminal proceedings before the Industrial Court and, therefore, it would seem appropriate to effect a rule change or to issue a practice direction governing their use. However, in the present proceedings, directions (see r 85; r 89(5)(c)) were made on 3 June 2008 for the filing and service of notices of contention and there can be no doubt the appellant was on notice of such contentions. Additionally, comprehensive submissions were filed by the respondents that address the matters raised in the notices. 19 It was further submitted for the appellant that an incompetent appeal argument could not be brought in the guise of a notice of contention. The scope for appeal is limited by statute and is not a matter of judicial discretion: see, for example, Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; 137 IR 8 at [68]-[69]. Further, that a notice of contention could not support a challenge to rulings made, as the respondents seek to do in the present case: see discussion in Ritchie's Supreme Court Practice at [51.40.5] and Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131 at [14]-[18].

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(c) both the Mines Inspection Act 1901 in s 4, and at the relevant time the Coal Mines Regulation Act 1982 in s 5 defined "Mines Safety Officer" as meaning a person appointed as a Mines Safety Officer under Pt 2 of the Public Sector Management Act 1988 ... 28 There was evidence before Haylen J that the Deputy Director-General of the Department of Primary Industries - Mineral Resources, under sub-delegated authority, had appointed Mr Morrison as an Inspector for the purposes of the 2000 OHS Act and had done so on 6 July 2005. The Government Gazette announcing that appointment and a copy of the original appointment were also in evidence, together with a copy of Mr Morrison's Identification Card certifying his appointment as an Inspector under the 2000 OHS Act, itself issued by the Deputy Director-General of the Department. Mr Morrison, exercising his authority as an appointed Inspector, had commenced the prosecution of the respondents in late February 2006. 29 After reviewing the relevant evidence, the trial judge expressed his disappointment about the state of that evidence. His Honour said at [23]: [23] Having regard to the observations made about the terms of s 47A and its focus upon those who are or could be appointed or designated as an Inspector, Mines Safety Officer or Investigator as an Inspector under The Occupational Health and Safety Act it is unsatisfactory and disappointing, to say the least, that no evidence was placed before the Court to indicate the range of experience and/qualifications that were to be considered in the appointment of a Mines Safety Officer. The prosecutor's position was that there were no such documents although there was evidence that there had been newspaper advertisements for the position laying down qualifications and a more recent document representing a statement of duties but that evidence was unsatisfactory and imprecise. If the position is that no qualifications are necessary but relevant mining or other experience is desirable, then that evidence should have been called. It is most unsatisfactory for the Court to be left in the position of having no evidence at all about what may be considered appropriate for appointment as a Mines Safety Officer with the necessary implication that, regardless of background and qualifications, any person may be appointed to such a position. This does not seem consistent with the terms of s 47A nominating three mining positions as the benchmark for appointment as an Inspector under the Occupational Health and Safety Act. In the present case it is known from the Summons and Affidavit in Support of it that Mr Morrison was the Director, Mine and Forest Safety Performance with the New South Wales Department of Primary Industries although there was no evidence of his qualifications and experience, the scope of the duties of the position he occupied and no information as to the combination of experience and qualifications required or desirable for appointment to that position. 30 His Honour then observed, "… an argument in the forefront of [the prosecutor's case] was reliance upon the presumption of regularity." After reviewing the authorities in that respect (Meng Developments Pty Ltd v Victorian WorkCover Authority and anor (2005) 149 IR 148; A B Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298; (2005) 145 IR 61; Thompson v The Queen (1989) 169 CLR 1; Moore-McQuillan v WorkCover Corporation and ors [2005] SAWCT 14; The Minister for Natural Resources v The New South Wales Aboriginal Land Council and anor (1987) 9 NSWLR 154; R v Brewer (1942) 66 CLR 535), his Honour concluded that the prosecutor had established his authority to prosecute the respondents: [32] The line of authority referred to in the Moore-McQuillan and Aboriginal Land Council cases does not appear to have been considered in either Oxford Cold Storage Co or in Meng. On the material before the Court it is unnecessary to attempt to resolve this issue. The prosecutor has produced evidence of the necessary delegation and the Gazette announcing his appointment as an Inspector while the defendants have produced no evidence calling into question Mr Morrison's eligibility to be appointed or designated a Mine Safety Officer. This position is very close to that dealt with in Brewer. On either approach, the prosecutor has established the authority of Mr Morrison to prosecute the defendants. The defendants' propositions are not strengthened by pointing to previous occasions when Mr Morrison's authority to prosecute has been challenged or successfully challenged: those cases involved considerations, quite different to the present challenge and its focus on Mr Morrison's appointment as an Inspector for the purposes of the Occupational Health and Safety Act.

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33 The respondents contended that the appellant, on 5 or 6 July 2005, was never "any person who … could be appointed … as … mine safety officer … under … the Mines Inspection Act 1901" and, therefore, on 6 July 2005 he was invalidly appointed as an inspector. It was submitted that: (a) the failure to obtain the necessary consent or authority to prosecute of a validly appointed inspector deprived the Court on appeal and deprived the Court at first instance of any jurisdiction to respectively hear the appeal or try the charge. The Court had no jurisdiction to entertain the proceedings and the prosecution must fail ( Rex v Bates [1911] 1 KB 964 at 965; Berwin v Donohoe (1915) 21 CLR 1 at 25 per Isaacs J; and Gilmour v Midways Springwood Pty Limited (1980) 49 FLR 36 at 38 per Brennan J). (b) the temporal requirement in respect of s 197A of the Industrial Relations Act is confirmed by the principle that a provision of the kind in s 106 of the 2000 OHS Act requires that the prosecution shall not be begun without the prescribed consent, the commencement of the prosecution occurring when the information is laid (or here the Application for Order filed) ( Midways Springwood at 37); (c) there was a miscarriage of justice in the Court below in respect of the authority or consent to prosecute defence as the respondents thereby lost a chance which was fairly open to them of being acquitted or they lost a real chance of being acquitted; (d) the legal onus was and is on the appellant to prove a valid authority or consent to prosecute as an inspector. If objection is taken, then the prosecution must be in a position to prove the consent or authority to prosecute ( Price v Humphries [1958] 2 QB 353 at 358). The granting of consent to the institution of proceedings clearly is not an element of the offence, and accordingly, the standard of proof is upon the prosecutor on the balance of probabilities ( Maccarron v Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets & Ors (2001) 23 WAR 355; [2001] WASCA 61 at [32]-[34] per Kennedy J, citing Thompson v The Queen at 12-13; A B Oxford Cold Storage at [26] per Nettle JA); (e) the appellant had an evidentiary onus which is the obligation to introduce evidence to prove his authority or consent to prosecute. "It is a well established maxim that all evidence is to be weighed according to the power of one party to produce it and of the other to contradict it" ( Blatch v Archer (1774) 1 Cowp 64 at 65; 98 ER 969 at 970) and, in weighing the evidence of the appellant, it was proper to have regard to the facts relating to the authority or consent to prosecute were peculiarly within the knowledge of Alan Coutts and the prosecutor; (f) Haylen J erred as a matter of principle in considering the presumption of regularity. A B Oxford Cold Storage was not properly distinguishable and should have been applied. Haylen J at [32] erred as a matter of principle in reasoning: The prosecutor has produced evidence of the necessary delegation and the Gazette announcing his appointment as an Inspector while the defendants have produced no evidence calling into question Mr Morrison's eligibility to be appointed or designated a Mine Safety Officer. This position is very close to that dealt with in Brewer. On either approach, the prosecutor has established the authority of Mr Morrison to prosecute the defendants… The defence did not and does not have a legal onus to produce evidence. The onus never passes to a defendant ( R v Bacon (1973) 1 NSWLR 87 at 96); (g) even if the presumption of regularity was capable of application in the present facts and circumstances (and it was contended that it was not), it was met by rebutting evidence adduced by the defence; (h) as to the gazette notification, in the absence of some provision making the gazette notification conclusive, it is not a "conclusive estoppel" precluding further investigation of the conditions of appointment or service; (i) the Minister's delegate did not subjectively consider the appointment of Mr Morrison and the nature of what was required to meet the statutory pre-condition in s 47A of the 2000 OHS Act. At first instance, there was no or no adequate evidence that Mr Coutts applied his mind and decided in his own mind this matter; (j) an objective consideration is required of whether or not the appellant on 6 July 2005 could be appointed as a Mine Safety Officer under the provisions of the Public Sector Employment and Management Act in Part 2.3 - Officers (Other than Department Heads), namely, ss 16 - 26; (k) the following reasons mean that he could not be so appointed: (i) the appellant would not have been able to perform the nature of duties of a Mine Safety Officer;

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35 The appellant submitted that the question of the validity of the Minister's delegate's decision to appoint the prosecutor as an inspector for occupational health and safety purposes was to assert a procedural defect, and was a collateral challenge to that decision. It was submitted that in the circumstances of these proceedings a collateral challenge was not permissible. It was also submitted that this Court had no jurisdiction to determine an administrative challenge to the validity of the delegate's decision. 36 The challenge to the decision to appoint Mr Morrison as an inspector under s 47A of the 2000 OHS Act is a collateral challenge. In Ousley v The Queen [1997] HCA 49; 192 CLR 69 at 98 McHugh J said that a collateral challenge occurs "in proceedings where the validity of the administrative act is merely an incident in determining other issues". 37 A recent relevant example of a collateral challenge is T & R (Murray Bridge) Pty Ltd v Gelzinis [2008] SAIRC 35. In that case a complaint was laid against the respondent, T & R (Murray Bridge) Pty Ltd, alleging that on 28 April 2004 at Murray Bridge, it breached s 19 of the Occupational Health, Safety and Welfare Act 1986 (SA) in that it failed to ensure so far as was reasonably practicable that its employee, James Feast, was, while at work, safe from injury and risks to health. It was asserted by the complainant that the Acting Director of Public Prosecutions had by written instrument dated 6 July 2007 extended to 20 July 2007 the two-year time limit for the laying of the complaint that would otherwise apply. It was said this was done in reliance upon s 58(6a) of the Occupational Health, Safety and Welfare Act, which authorised an extension in certain circumstances. When the complaint came before the Industrial Magistrate, the defendant raised a preliminary objection to the validity of the complaint. It was said that the Acting Director of Public Prosecutions' written instrument failed to comply with s 58(6a) of the Act. The Industrial Magistrate dismissed the application and confirmed the validity of the complaint. 38 The matter was appealed to a single judge. Her Honour Judge Parsons considered whether a collateral challenge was permissible and held that it was, based primarily on the authority of Jacobs v Onesteel Manufacturing Pty Ltd & WorkCover Corporation of SA [2006] SASC 32, which we shall come to in more detail shortly. The complainant then appealed to the Full Industrial Court, which unanimously dismissed the appeal. The matter was then taken on appeal to the Full Court of the Supreme Court of South Australia: Gelzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61. Relevantly, the Full Court considered that a preliminary objection taken by the defendant before an Industrial Magistrate to the validity of the complaint "was a collateral challenge taken at the outset of the proceedings" (at [21]). At [22] the Full Court noted that it was accepted that an alternative approach that could have been taken was to seek judicial review in the Supreme Court of the impugned administrative decision but no objection was taken to it having been dealt with by the Magistrate. 39 The central issue in the present proceedings is whether Haylen J erred in dismissing the prosecutions against the respondents. Incidental to that is the respondents' challenge to the validity of Mr Morrison's appointment as an inspector and, therefore, his capacity to institute the proceedings in the first place. 40 The appeals in these proceedings are brought pursuant to s 197A of the Industrial Relations Act. That section is in the following terms: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation

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45 Nevertheless, in the ordinary course, if a question arises on appeal as to whether proceedings for an offence were instituted by an inspector appointed under the occupational health and safety legislation - in this case, the 2000 OHS Act as it applied at the time the charges were laid - the Court will need to determine that question of law. Therefore, in hearing an appeal from an acquittal, the Full Bench has jurisdiction to determine if proceedings for the offence were instituted by an inspector appointed under that legislation. The question is, however, whether the Full Bench should determine the validity of that appointment as a collateral issue which, in these proceedings, would involve going behind the instrument of appointment and examining whether the appointment was validly made. 46 The decision to appoint Mr Morrison as an inspector under s 47A of the 2000 OHS Act was made by Mr Coutts as the Deputy Director General of the Department of Primary Industries under delegation. There was no issue about the delegation. The decision by Mr Coutts was clearly administrative in nature. The appellant relied on the decision in Flynn v Director of Public Prosecutions [1998] 1 VR 322 to submit that a collateral challenge to an administrative decision on the basis of a procedural defect cannot be entertained in criminal proceedings, but may only be undertaken by appropriate proceedings outside the criminal proceedings to which the decision maker would be a party. Flynn followed Quietlynn Ltd v Plymouth City Council [1988] QB 114 and Bugg v Director of Public Prosecutions [1993] QB 473. 47 In Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203 the House of Lords held that a defendant in criminal proceedings was entitled to contend that subordinate legislation or an administrative act made under it was ultra vires and for those purposes it made no difference whether the error of law alleged was patent or substantive, or latent or procedural. That is to say, the House of Lords expressly approved a collateral challenge in criminal proceedings, overruling Quietlynn and Bugg. 48 As Debelle J observed in Jacobs at [18]: The obvious policy reason to allow a collateral challenge to the validity of delegated legislation in criminal or civil proceedings is that it avoids an unnecessary duplicity of proceedings: see Lord Bridge in Chief Adjudication Officer v Foster [1993] AC 754 at 766 - 767, affirmed by Lord Steyn in Boddington at 175. To adopt a contrary view would lead to fragmentation of procedures and an inappropriate distinction between public law and private law when, not infrequently, the validity of delegated legislation affects private law rights. 49 Nevertheless, as Besanko J observed in Jacobs at [91], there does not appear to exist in Australia a general principle that a collateral challenge is permissible in the case of all legislative and administrative acts, although both he and Debelle J acknowledged there was clear authority that a person prosecuted for the breach of a by-law or regulation may raise as a defence in the criminal court the invalidity of the by-law or regulation. Besanko J considered that such authorities existed "at least when the challenge is on the ground of simple or narrow ultra vires". Debelle J said at [15]: It has long been settled law that a collateral challenge may be made to the validity of delegated legislation on the ground that it ultra vires. A collateral challenge may be made to the validity of delegated legislation as a defence in a criminal prosecution: see, for example, Kruse v Johnson [1898] 2 QB 91; Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977; Bishop v Deverix [1908] SALR 122. The High Court has on several occasions not questioned that by-laws may be challenged as a collateral issue in a prosecution under that by-law: Widgee Shire Council v Bonney ; Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, although in Widgee Shire Council v Bonney at 986 Isaacs J expressly approved a collateral challenge.

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50 In Ousley, the High Court held that judges issuing warrants were acting administratively, not judicially. Therefore, the validity of the warrants was open to collateral review by a trial judge in criminal proceedings. We do not believe, however, that Ousley can be regarded as authority for the proposition that a collateral challenge is permissible in the case of all administrative acts in criminal proceedings. Ousley was concerned with the special nature of search warrants and, in that respect, it was held that a collateral challenge of warrants was only available in criminal trials for defects appearing on the face of the warrants. 51 In Jacobs, a five Member Full Court of the South Australian Supreme Court considered a case stated by the Full Bench of the Workers Compensation Tribunal pursuant to s 86A of the Workers Rehabilitation and Compensation Act 1986 (SA) as to whether the Tribunal had jurisdiction to determine the validity of rules of the Tribunal as a collateral issue. The Full Court found that such jurisdiction existed. Debelle J considered that the Tribunal had jurisdiction to determine the validity of its Rules as a collateral issue in the determination of an entitlement of a worker to costs against his employer essentially on the basis that it was not inconsistent with prevailing authority: see [14]-[24] of the judgment. Besanko J, with whom Duggan, Vanstone and Layton JJ agreed, found that a collateral attack to the validity of the relevant rules was permissible based on the acceptance of two propositions (at [83]): First, as I have said, the relevant rules are a form of delegated or subordinate legislation. They are the product of a legislative act, not an administrative decision. Secondly, there is clear authority that, at least when the challenge is on the ground of simple or narrow ultra vires , a person prosecuted for the breach of a by-law or regulation may raise as a defence in the criminal court the invalidity of the by-law or regulation… 52 Besanko J confirmed this view by cross checking against seven factors he derived from M Aronson, "Criteria for Restricting Collateral Challenge" (1998) 9 Public Law Review 237 and Professor Enid Campbell, "Collateral Challenge of the Validity of Governmental Action" (1998) 24 Monash University Law Review 272. The factors identified were the following: (1) Are the grounds of challenge likely to involve the adducing of substantial evidence?

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(7) (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted? 53 At [94], Besanko J said of these factors and their relevance to the issue before the Full Court: The grounds of challenge in this case do not involve the adducing of substantial evidence; nor is there any difficulty with the proper parties being before the Tribunal. I do not think moreover that any of the protective mechanisms contained in r 98 of the Supreme Court Rules 1987 would be by-passed if a collateral challenge is permitted in this case. There is no statutory provision that indicates or suggests that a collateral challenge ought not to be permitted, and there is nothing to suggest that the Workers Compensation Tribunal does not have the necessary expertise to determine the validity of the relevant rules. As against this last point, it might be said that it would be preferable for the validity of the relevant rules of the Tribunal to be determined by this Court rather than, in the first instance, by the Tribunal: Taylor v Guttilla (1992) 59 SASR 361 per King CJ at 368. 54 An important difference between Jacobs and the present proceedings is that Jacobs involved a challenge to the validity of the rules on the ground of simple ultra vires, namely, the rules exceeded the scope of the empowering legislation. That is not the case here. The respondents themselves contended that "it would be necessary to go behind the face of the appointment of Mr Morrison (the Government Gazette notice) and question whether Mr Coutts examined the facts of whether the appellant could be appointed as a mine safety officer and applied his mind to the facts": see R v Cain [1976] 1 QB 496 at 502 per Widgery CJ, James LJ, May J; Traveland Pty Ltd v Doherty (1982) 41 ALR 563 at 568 per Bowen CJ, Deane and Toohey JJ; Berwin v Donohue (1915) 21 CLR 1; R v Bacon (1973) 1 NSWLR 87 at 94-95 per Kerr CJ, Hope and Reynolds JJ. 55 What the respondents are seeking in the present case is a multi-layered examination of Mr Morrison's appointment involving legislation associated with the 2000 OHS Act, the Public Sector Employment and Management Act 2002, job descriptions relating to the role of mine safety officer and a statutory instrument, namely, an industrial award said to determine the qualifications that a mine safety officer is required to hold. 56 Thus, additional evidence would need to be adduced if we were to permit the collateral challenge. On the respondents' case it would become necessary to hear evidence from Mr Coutts as a minimum and probably Mr Morrison. The appellant has declined to comply with the requests to have Messrs Coutts and Morrison called as witnesses and the Full Bench has refused leave to have these two persons called. 57 Further, documentary material relevant to the collateral challenge has already been admitted on the appeal so the Full Bench has material before it and, as the respondents contended, it is open to find in their favour on that material alone. 58 Returning to the factors identified by Besanko J in Jacobs, there does not appear to be a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted. 59 As to the fifth factor, we do not consider the issue raised by the collateral challenge is clearly answered by authority. We are concerned about the multi layered nature of the challenge and the fact it is different to the circumstances referred to in several of the authorities. However, there is evidence before the Full Bench upon which we are able to proceed. 60 We have taken judicial notice of the fact that Mr Morrison is the prosecutor in a number of proceedings presently before single members of the Industrial Court. However, given the issue is before this Full Bench in appeal proceedings, there is no risk of inconsistent decisions being made, which is what the sixth factor identified by Besanko J is concerned with. 61 As to the seventh factor, there is nothing to suggest that this Full Bench does not have the necessary expertise to determine whether Mr Morrison holds a valid appointment. 62 We note in her article, "Collateral Challenge of the Validity of Governmental Action", Professor Campbell referred to what was said by Sir William Wade in 1982 HWR Wade, Administrative Law, 5th ed, 1982, 330: probably … there can be no hard and fast rules for determining when the court may or may not allow collateral challenge. In some situations it will be suitable and in others it will be unsuitable, and no classification of the cases is likely to prove exhaustive. 63 We do, however, discern in the cases a definite leaning towards collateral challenges being permitted in the case of administrative acts in criminal proceedings unless there are particular reasons emerging from factors such as those identified by Besanko J in Jacobs that indicate to the contrary. 64 As it was said in The Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (at 108): If the determination of a complaint by the Tribunal be characterised as activity of an administrative nature, then in the absence of legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the Court was seised. This proposition recently was applied in the Court in Ousley v The Queen . 65 And as Aronson submitted in his article, "Criteria for Restricting Collateral Challenge": [F]orcing an accused person to take his or her nullity fight to a separate court is fraught with problems in the general run of criminal cases, and invites, rather than avoids, a fragmentation of the criminal process. 66 Finally, it is an important consideration that there is no appeal from the Industrial Court (to another court) on an error of law (see s 179(1) of the Industrial Relations Act; Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292). Moreover, the New South Wales Court of Appeal can exercise its supervisory jurisdiction with respect to decisions of the Industrial Court made beyond jurisdiction, but subject to s 179(4) which provides: (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or

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71 Further, as Kirby J observed in his dissenting judgment in Cassell at [72]: [A]s a doctrine of the common law, the one in question here must bend to the scheme and purpose of the Act. In a prosecution of an accused person for an offence against s 87, it is the Act which requires that it be proved by the Crown that the false or misleading evidence was given 'at a hearing before the Commission'. No common law doctrine could relieve the Crown of that requirement if, as I believe, it was necessary by the Act. The de facto officers' doctrine is a possible refuge in exceptional and generally extraordinary circumstances … 72 In United Services Transport v Evans, the validity of the appointment of an inspector and his authority to lay informations under the Dangerous Goods Act 1985 (Vic) and the Occupational Health and Safety Act 1985 (Vic) was challenged before Southwell J. His Honour referred to the judgment of Bray CJ in Cawthorne. In that South Australian case it was relevantly held by the Full Court that acts done by a public official appointed as a temporary industrial registrar under the authority of an invalid appointment could not be regarded as valid as being those of a de facto public officer done in the apparently regular execution of his office, because the validity of the first appointment (in that case there were two appointments, the first was challenged at the outset and the second was not) had been challenged before he had given any decision. After referring to the decision of Bray CJ in Cawthorne, Southwell J stated at 248: Where the doctrine applies, it will validate the public acts of officers who, inter alia , are not duly appointed. But it can apply (if it can apply at all in the present type of case) only where the want of power or defect is unknown to the public at the time of the exercise of that power: see Adams v Adams [1971] P 188, at 214. It cannot apply where there is, at the outset, a challenge to the validity of the appointment of the relevant officer. Mr Uren was good enough to refer me to Reference re Language Rights under the Manitoba Act, 1870 (1985) 19 DLR (4th) 1, at 28, where the Supreme Court observed that "the rationale for the doctrine (was) that the members of the public with whom the officer dealt relied upon his ostensible status ... it recognises and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws...".

[105]

80 The approach we intend to take in this matter is to assume that the respondents are correct in their contentions that Mr Morrison was not appointed in accordance with the legislative scheme governing the appointment of inspectors under the 2000 OHS Act. We then propose to consider whether the assumed failure to comply with the scheme necessarily invalidated Mr Morrison's appointment. 81 First, however, we need to set out, in some detail, what we understand to be the respondents' case. 82 Under the legislative scheme governing the appointment of an inspector under s 47A the Minister may appoint a person as an inspector for the purposes of the 2000 OHS Act from the class of persons specified in s 47A. Mr Morrison was purportedly appointed as an inspector on the basis that he could be appointed as a mine safety officer under the Mines Inspection Act. The Mines Inspection Act defines a mine safety officer as a person appointed under what is now Chapter 2, Pt 2.3 of the Public Sector Employment and Management Act. 83 The respondents contended that if Mr Morrison had been appointed as a mine safety officer under the Public Sector Employment and Management Act he would necessarily have had to have met the requirements of that Act, in particular s 19; that in assessing whether Mr Morrison could be appointed as a mine safety officer under the Public Sector Employment and Management Act one has to consider, objectively, whether he could have fulfilled the requirements of that Act. 84 The Public Sector Employment and Management Act does not make any mention of a mine safety officer, but the respondents submitted that the Act requires persons who are to be appointed as permanent officers to be relevantly qualified. This would be either because the department head has had regard to the nature of the duties to be performed and the person's "qualifications, experience, standard of work performance and capabilities of those persons that are relevant to the performance of those duties" and selects the person of greatest merit, or because the department head has selected a qualified member of staff of a Department who is of the greatest merit, or because the person has passed a competitive examination prescribed for appointment to vacant positions of the class to which that vacant position belongs, or the person is qualified for appointment in accordance with procedures prescribed by the regulations for entry to positions in the Public Service in special cases (see s 19). 85 The respondents contended, there was no evidence, or insufficient evidence, to establish that Mr Morrison had the qualifications or experience enabling him to perform the nature of duties (as required by s 19(1)(a) of the Public Sector Employment and Management Act) of a mine safety officer as indicated in either of the following: (i) Mines Inspection Act at ss 36, 36A, 36B, 36C, 47B, 47H and 47K;

[108]

86 As to the respondents' proposition that there was no evidence (the onus lying on the appellant to adduce such evidence) that Mr Morrison had the qualifications or experience enabling him to perform the functions prescribed by the Mines Inspection Act, that proposition would appear to be correct. 87 The departmental position descriptions tendered in evidence in respect of the position of mine safety officer variously required the position holder to have: s Background in mine safety auditing or relevant experience in mining industry that could be readily coupled with safety audit training relevant to the mining industry; Several years practical experience within the mining industry (December 1998); s Associate Diploma or degree in mining engineering (senior mine safety officer - March 2004); s Associate Diploma or degree in mining engineering or an Undermanager's Certificate of Competency (Mine Safety Officer - Inspections (Wollongong) - June 2007); s NSW Coal Mine Electrical Engineer's Certificate of Competency (Mine Safety Officer - Electrical Engineering - Inspector Grade 2 - May 2008); s Demonstrated experience in the mining industry together with exposure to Occupational Health and Safety Committees (Mine Safety Officer - Verification - June 2005). In this case the job description was to "[i]dentify major hazards through planned reviews of safety systems; evaluate adequacy of safety systems and compliance with mine health and safety legislation and contribute to the development and improvement of workplace standards. Assist with investigations of accidents and incidents."; s Degree, diploma or associate diploma in mining engineering (Mine Safety Officer (Inspections and Investigations) - June 2005); s Proven supervisory experience in underground coal mines as an under-manager (Mine Safety Officer - Inspections - June 2007). 88 It was submitted that there was no evidence that Mr Morrison was able to perform the nature of duties (as required by s 19(1)(a) of the Public Sector Employment and Management Act) of a mine safety officer as indicated in the job descriptions. We consider that to be correct, although we note that whilst the position descriptions commonly require mining experience and/or a relevant tertiary qualification, it is apparent from the selection described above that depending upon the nature of the work to be undertaken by the mine safety officer, different qualifications and experience are required. We note that Mr Morrison was not without any experience in relation to mine safety. For example, his performance agreement for 2007-08 required him to conduct investigations of fatalities and major mine events and his duties included the development of policies, procedures and standards for discreet investigations and prosecutions of sub-standard mining, operations, and significant accidents/incidents.

[110]

90 As there was no evidence Mr Morrison possessed either of these qualifications, the respondents contended that Mr Morrison could not have been appointed as a mine safety officer under the Public Sector Employment and Management Act. 91 However, we note in respect of that contention that the fact that the department head is to "have regard to" the qualifications, experience, standard of work performance and capabilities of the person eligible for appointment that are relevant to the performance of those duties, indicates that a failure by the department head to strictly observe the Award would not necessarily be a barrier to appointment. But if the department head were to make an appointment that was not consistent with the Award, this might suggest that the appointment was not made on the basis of merit and that, therefore, the appointment was bad. 92 Thus, according to the respondents, in order for Mr Morrison to be appointed as an inspector under s 47A on the basis that he could be appointed as a mine safety officer under the Mines Inspection Act, the person making the decision to appoint Mr Morrison would have to have turned his mind to whether Mr Morrison could be appointed as a mine safety officer under the Public Sector Employment and Management Act. In turning his mind to that issue the decision maker would have to have had regard to the matters in s 19(1), namely, the nature of the duties of a mine safety officer and the qualifications, experience, standard of work performance and capabilities of Mr Morrison that were relevant to the performance of those duties as prescribed by the Award. 93 On the respondents' case it was not known whether the decision maker, Mr Coutts, turned his mind to the matters identified by the respondents because there was no evidence adduced by the appellant to that effect. If he did not, on the respondents' submissions Mr Morrison could not be regarded as a person who could have been appointed as a mine safety officer under the Public Sector Employment and Management Act, as a prerequisite to being appointed an inspector under s 47A(1) of the 2000 OHS Act. A question of statutory construction

[112]

[93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood ([1978] 1 NSWLR 20 at 23-24. See also Victoria v The Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 161-162 per Gibbs J) in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ( Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146 per Gummow J) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales ( Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney-General (NSW); Ex Rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood at 24; National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy (No 3) [1985] FCA 382; (1985) 8 FCR 93 at 102; 62 AKLR 63 at 71; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd [1989] HCA 15; (1989) 166 CLR 454; at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26; 98 ALR 68 at 90-92. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd [1996] NTSC 62;(1996) 110 NTR at 5; Collins Radio Constructions Inc v Day [1997] NTSC 104; (1997) 116 NTR 104 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1996] 1 ALL ER 367 at 375, 377). In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" ( Tasker v Fullwood at 24). 95 Thus, the question for the present case is whether it is a purpose of the 2000 OHS Act that a failure by the decision maker to comply with provisions of the Act renders the appointment of Mr Morrison invalid; in determining that question of legislative purpose regard must be had to the language of the relevant provisions and the scope and purpose of the statute: Project Blue Sky at 390; Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 at [23]. Was the appointment invalid? 96 The purpose of the 2000 OHS Act may be gleaned from its objects, particularly s 3(a): "to secure and promote the health, safety and welfare of people at work". Consistent with that object, as Haylen J pointed out at [19], the terms of s 47A strongly suggest that persons appointed by the Minister to be inspectors are required to have the necessary qualifications and experience. Indeed, an inspector appointed under the Mines Inspection Act is required to hold certain specified qualifications: see for example, s 32. 97 Whilst the Mines Inspection Act does not prescribe any qualifications or levels of experience to be held by a mine safety officer, the intention of the Parliament would appear to have been that mine safety officers be "appropriately qualified persons" (Minister's second reading speech, Hansard, Legislative Assembly, 14 October 1998, 8360) relating to the Mines Legislation Amendment (Mines Safety) Bill, a bill to amend the Mines Inspection Act and the Coal Mines Regulation Act). A mine safety officer would be an appropriately qualified person if he or she met the qualification requirements prescribed by the Award. It is the Award that is relied upon to establish qualifications rather than a legislative prescription. 98 Additionally, it was said in the "Mine Safety Review Report" made to the Hon Kerry Hickey MP, Minister for Mineral Resources by the Hon Neville Wran AC QC and Jan McClelland, February 2005, in Appendix 4 at 17: Standard inspections are based on inspector and mine safety officers' experience and judgement . In these cases the work place or process is observed under normal conditions. This also allows a greater involvement with employees on the job. The inspector/mine safety officer is looking for statutory compliance but also using experience and judgement to assess that safe and appropriate methods are employed. (emphasis added)

[118]

109 Moreover, we note that for some years Mr Morrison has been the prosecutor in mining cases coming before this Court and is the prosecutor in a number of matters that are currently before the Court. The consequences of holding that his appointment was invalid could have significant implications for these other matters in circumstances where Mr Morrison's appointment does not offend the purpose of the 2000 OHS Act to secure the health and safety of persons at work and where there is no requirement for a person authorised to institute proceedings under that Act to hold the qualifications prescribed for an inspector under the Mines Inspection Act or a mine safety officer under the Award. 110 The respondents contended that s 197A of the Industrial Relations Act relevantly provides that it applies to a decision of a member of the Commission to acquit a person of an offence against the occupational health and safety legislation only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. We have already found that the main purpose of s 197A(2) was to exclude appeals from acquittals by the secretary of a union and other than that the section did not require any particular focus by the Full Bench. 111 It was also contended that, "[t]he criminal law is one of the last areas of the law in which a technical point is still a good point": Janceski per Spigelman CJ at [90]. That may be so, with respect, although the Chief Justice also noted what Kirby J said in Walsh v Tattersall (1996) 188 CLR 77 at 105 that "[j]ust as in civil procedure there has been a loosening of the rigidities of technical rules where these would defeat the merits, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality." 112 Janceski, however, was concerned with whether an indictment signed by a barrister at the private bar who was not authorised to do so under s 126 of the Criminal Procedure Act 1986 rendered the indictment invalid. The Court of Appeal found that it was invalid having regard to the particular requirements of s 126. The Chief Justice stated: [96] I have read Justice Howie 's judgment in draft. His Honour provides an extensive analysis of the scope and purpose of the 1987 legislative scheme which altered the basis of prosecutorial authority in this State. It was in this context that the legislative predecessor of s126 was introduced for the first time. This context must be taken into account for purposes of determining the intention of Parliament with respect to non-compliance with the stipulation that an indictment be signed by an authorised person. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11].) [97] His Honour's analysis indicates that s126 had as its primary purpose the objective of ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General's powers, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated stipulation in s 126(1)(b)(iii) and s 126(2). For this reason, I have come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity. 113 There is nothing in the legislative scheme governing the appointment of inspectors that would require "precise compliance" with s 47A(1) of the 2000 OHS Act in circumstances where the appointment is limited in accordance with s 47A(2) in the manner that applied to Mr Morrison's appointment. 114 The respondents further contended that the present proceedings involve an appeal from acquittals and that in examining whether the appointment was invalid, double jeopardy should be a significant consideration. In this respect, we agree with what Wright J, President said in Morrison v United Collieries Pty Limited [2005] NSWIRComm 259; (2005) 146 IR 154: [2] It is self-evident that no appeal court would lightly reverse an acquittal obtained by a defendant in criminal proceedings where an appeal in that respect was available. There is no reason to take a different approach in respect of appeals pursuant to s 197A of the Industrial Relations Act 1996 although the consideration that appeals under that provision have been held to require the grant of leave to appeal ( Bultitude v Grice Constructions Pty Ltd (2002) 115 IR 59 at 72 to 74) enables the necessary restraint and caution that the appeal court must exercise in such cases to be applied at either or both the leave to appeal stage, or at the appeal phase of the proceedings.

[125]

120 In their contentions the respondents relied on Hood (1997) 91 A Crim R 526 at 536 per Smart J and Hartmann v Commissioner of Police (1997) 91 A Crim R 141 at 147 per Cole JA for the proposition that where the statute abrogates the privilege against self-incrimination and confers compensatory protection (as was the case with s 60(2)), the court must construe the ambit of that statutory protection; a technical or narrow approach should not be adopted having regard to the importance of that privilege. It was submitted that in s 60(2), the words "evidence" and "admissible" and the expression "any proceedings" should be given their literal and ordinary meaning and that included what the appellant did in his verifying affidavits: see Re Williams Bros. Ltd (1928) 29 SR (NSW) 248; Cheney v Spooner (1929) 41 CLR 532 at 537. 121 We accept that a technical or narrow approach should not be adopted in construing s 60(2) of the Coal Mines Regulation Act, but for the reasons given by the trial judge we do not consider there was any contravention of s 60(2). As his Honour found at [47] in no sense had the answers supplied to the investigator, Mr Sheehy, by Mr Milner and Mr Baldwin to assist in deciding to commence the proceedings, been used in evidence against the respondents and, in terms, those answers were not referred to in the prosecutor's verifying affidavits nor were the affidavits read at the trial. Moreover, the fact that Staff J may have read the verifying affidavits in deciding to issue ex parte orders against the respondents does not amount to a contravention of s 60(2). We agree with what the trial judge stated at [46]: [46] In dealing with this attack on the prosecution, it is a relevant consideration that the affidavit of Mr Morrison was not read in a formal sense in any type of proceeding before the Court issued the order. It is well established that the Court is not engaged in the task of reaching a prima facie conclusion that an offence had been committed before an order issues requiring the attendance of the defendant before the Court to answer the charge. In many respects, the process is more administrative than judicial although where it can only be undertaken by a judicial officer, it might well be assumed that there is an examination to ascertain whether the matters raised are capable of sustaining a charge and do not have some obvious or fundamental flaw: the judicial officer so engaged, however, is engaged on a relatively low level examination and it is important that the role of the judicial officer does not become enmeshed with the role of the prosecutor such that possible difficulties with the prosecution are to be remedied at the instigation of the judicial officer. Once the order is made, it is rare for the prosecutor's affidavit to feature in the trial and in accordance with that experience the prosecution case did not rely on Mr Morrison's affidavit nor was it formally read (although the affidavit did come into evidence only for the purposes of dealing with the issue about authority to prosecute) … 122 We find there was no abuse of process arising from a contravention of s 60(2) of the Coal Mines Regulation Act. Sounding and barring or scaling down the roof

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