POWERCOAL PTY LTD & Peter Lamont FOSTER v INDUSTRIAL RELATIONS COMMISSION OF NSW & Rodney Dale MORRISON

Court of Appeal (NSW)|2005-07-13|Before: Spigelman CJ, Mason P, Handley JA, Walton J, Vice-President Boland J, Staff J

Background Facts 3 The coal being mined was in an area known as '304 panel'. The coal seam at 304 panel was approximately three metres thick and was located between the 'Awaba Tuff', a layer of compacted deposits of volcanic ash below the coal seam and the 'Teralba Conglomerate', a hardened layer of stone pebbles and binding material above the coal seam. 4 Coal is extracted by using a large continuous mining machine, which is 15 metres long with a 3.6 metre wide cutting head or drum. The continuous miner is operated remotely by an operator who stands towards the rear of the machine on its right hand side and drives it into the coal. Once the coal has been extracted from the coal face it is loaded onto a shuttle car which discharges its load at a collection point some distance from the mining operation. 5 There are two distinct stages to the mining process. The first, called the first workings, is where the continuous miner is driven into the coal to create underground roadways, called "headings" and "cut throughs", of approximately 5.5 metres in width and varying height depending upon the height of the coal seam. Headings are the primary drives undertaken into the coal deposit by the continuous mining machines. Cut throughs are the cross drives later performed at an angle, usually of 90 degrees, to the headings, thereby forming a squared pattern of roadways. The formation of headings and cut-throughs leaves residual pillars of coal, which support the layer of conglomerate above. Accordingly, after the headings and cut-throughs have been mined in an approximately squared formation of tunnels, the layer of conglomerate lies across the mined area and the remaining pillars, forming a more or less continuous roof, supporting the terrain above and supported itself by the residual pillars of coal. Where necessary during first workings, this roof structure is given additional support by using roof bolts and 'W straps'. A W strap is a piece of metal of a metre to a metre and a half in length, which is extended across the rock and bolted in place. 6 The second stage of the mining process, called second workings, is where the coal is mined out of the residual pillars of coal that have been left by the first workings. There are two methods of pillar extraction. One involves removing the whole of the pillars and is called total pillar extraction. The other method is more conservative and involves extracting approximately half of the coal from each pillar in a sequence of drives known as 'lifts'. Each lift involves the continuous miner cutting a designated distance into the pillar. Approximately half of each pillar is extracted and the other half is left standing. This method is known as 'pillar stripping'. 7 Where a pillar has been removed or stripped the roof above it is unsupported and is expected to fall soon thereafter. The void so created in the area where the coal has been extracted from the pillars is called the goaf. In order to ensure the safety of the miners, pillars are stripped through a process called 'retreat mining', which involves retreating backwards from the deepest point within the mined area along the headings, towards the exit to the mine. The nature of retreat mining is that, as the goaf area is created, the miners retreat back from it, thereby ensuring that, while working, the miners remain under a roof structure which has been appropriately supported, usually by roof bolts, during first workings. As the continuous miner proceeds through its lifts along a particular pillar, timber props are installed as roof support along the area which previously formed the cut through on one side of the void or goaf area. Thus, in second workings, there are two distinct areas: the goaf area and the work area. None of the miners are allowed to go into the goaf area for any purpose. The roof in the goaf area is unsupported and is designed to fall. The roof in the work area is supported with timber props and roof bolts and is designed to stay up. 8 An integral part of the retreat mining process is to leave behind a reduced pillar of coal in the goaf area, known as a 'stook'. The stook serves two important functions. First, it acts as a minimum support for the roof in the goaf area. Secondly, it forms a barrier between the goaf area and the work area and will break off any roof fall in the goaf area before it enters the work area. Thus, as the miners retreat backwards, extracting coal from the pillars, some small pillars of coal are intentionally left behind at the end of each of the extracted area to support the roof and protect the roadway upon which the miners retreat from any roof fall in the goaf area. Stooks are vital in both 'total pillar extraction' and 'pillar stripping'. 9 On 18 May 1998 Mr Foster, the manager of the Awaba colliery, applied to the Department of Mineral Resources ("DMR") to retreat out of 304 Panel and 14 SW Heading by the pillar strip method for the purpose of extracting the pillars of coal which had been left behind by the first workings, some years previously. Pillar stripping had been used at the Awaba colliery since September 1997, when it was introduced to replace total pillar extraction, for safety reasons. 10 On 20 May 1998 the DMR approved "General Rules Pillar Stripping" for 304 Panel and 14 SW Heading. A working plan for the pillar stripping in 304 Panel was produced on 13 July 1998. Panel 304 was to be mined in a series of sequences, the first two of which were sequences 4 and 5, which measured about 65 metres in length. Sequences 4 and 5 involved cutting into a solid wall of coal situated between two dead end headings, called "stubs" at 1 Heading and 3 Heading, using approximately 17 lifts. 11 A conglomerate roof is generally firm and strong and does not usually require extra support. However, during the first workings in 1 and 3 Headings at 25 Cut through in 304 Panel, some years previously, poor roof was encountered, and extra roof support was installed consisting of 6 scatter bolts with butterfly plates at 1 Heading and 4 W straps each with 5 bolts about 1 metre apart at 3 Heading. This indicated that the miners originally involved in driving the heading must have determined that the roof in that particular area required additional support in order to ensure its integrity. In addition, the working plans showed that the area in which the work team was working had a fault of 0.3 metres running diagonally across it. Faults in the conglomerate can occur where there has been a shearing of the terrain in a vertical fashion such that the conglomerate does not form a continuous layer but has been either lowered or raised by the shearing effect. The thickness of the conglomerate has an effect on its strength and ability to bridge open areas and support the terrain above. 12 Before any work commenced on 15 July, Mr Cull, the Technical Services Coordinator, tested the roof at 1 Heading and 3 Heading and determined that the condition of the roof presented no concern. 13 Between 15 and 16 July a team consisting of Mr Gardner (a mine deputy) and miners Ian Miles, Warren Etheridge, Kevin Dunn, Alyn Gear, Barry Edwards and Greg Cornwell extracted the majority of the coal required to be stripped from the relevant pillars. On 17 July the team of miners were engaged in completing the last two lifts of coal from the pillar. Before commencing work on 17 July, the mine Deputy for that shift, Mr Gardner, performed checks of the work area, which he was required to do under the Coal Mining Regulation Act. Mr Miles, a union appointed Check inspector, and the holder of a mine deputy's ticket, also checked the work area and, following some doubts as to its condition, "sounded the roof". 14 Sounding the roof involves striking the roof with a drill steel to determine the condition of the roof. A poor roof will create a particular sound. When sounded by Mr Miles, the roof sounded good and as a result, work commenced. During the course of the morning Mr Miles observed that he felt uneasy about the condition of the roof and sounded the roof again on a number of occasion. On each occasion he determined that it was safe for work to continue. 15 The team of miners, who were all experienced and some of whom sounded the roof themselves, all gave evidence to the effect that they had independently formed the view that there was nothing in the roof that would prevent the work from proceedings as planned. 16 The mining plan required a stook, called stook X, to be created on the right hand side of the layout of 4 and 5 sequences. Stook X was to be a minimum of 1.5 metres in thickness between the goaf area created by the extraction process and the stub end of 3 Heading. Stook X was intended to create a barrier between the goaf area and the roadway along which the miners were retreating. 17 For reasons that are unknown, instead of creating stook X the miners extracted the coal out of the area that was to have been stook X and in so doing reduced it to approximately 20% of its intended size. This was evocatively described by one witness as 'robbing the stook'. There was no evidence to explain why stook X was mined improperly, without warning and contrary to the mining plan. The effect of 'robbing stook X' was that there was an inadequate barrier between the goaf area and number 3 Heading. Instead, a section of the roadway became part of the goaf. The void created by the substantial removal of the two pillars forming sequences 4 and 5 was the subject of a major roof fall. Barry John Edwards, who was operating the continuous miner, and who was engaged in the unplanned and unauthorised removal of stook X, was struck by falling rock and fatally injured.

The Charges 18 Before Peterson J Powercoal was charged with two offences against s15(1) of the OH&S Act which provides: "15(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees." 19 Mr Foster was charged with two offences on the basis that, as the manager of the mine, he was deemed to have committed the offences of Powercoal pursuant to s50 of the OH&S Act which provides: "50(1) Where a corporation contravenes … any provision of this Act … each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that …. (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provisions; or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation." 20 The two charges against Powercoal each alleged the failure to provide a safe system of work. In one charge the allegation was that Powercoal failed to provide an adequate system to assess the safety of the roof of a particular area of the mine. This is referred to as the Assessment Charge. In the second charge the allegation was that Powercoal failed to implement an adequate system of recording notification to employees of roof problems and roof history. This is referred to as the Notification Charge. 21 The particulars of the Assessment Charge were extensive but relevantly included the following:

(viii) on 17 Jul 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator; Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Devin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees").

(xi) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 cut through in the vicinity of 1,2 and 3 Heading between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there.

(xii) the defendant's failure and/or omission was the failure and/or omission to provide or maintain an adequate system for assessing the safety of the roof in the vicinity of 304 Panel at 25 CT in the vicinity of 1,2 and 3 Headings.

(xiii) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (vii) above and the defendant's failure and/or omission as dealt with in paragraph (xii). 22 The particulars of the Notification Charge were extensive but relevantly included the following:

(ix) on 17 July 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator; Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Devin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees").

(xii) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 cut through in the vicinity of 1,2 and 3 heading between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there.

(xiii) the defendant's failure and/or omission was the failure and/or omission to implement an adequate system of recording and notification to employees of roof problems and roof history;

(xiv) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (ix) above and the defendant's failure and/or omission as dealt with in paragraph (xiii).

The Trial Judgment 23 Peterson J found that the Claimants were not guilty of either charge on the basis that: · The weakness in the roof was undetectable prior to the accident; · It could not be said that the system for assessing the condition of the roof was inadequate in circumstances where the methods used - sight, sound and vibration - were recognised in the evidence of the experts as the only means of testing the stability of the roof available at the time of the accident; · Although the system of recording and notification was inadequate, in circumstances where the mining officials and crew were aware of the indicia of poor roof in the form of the W straps, and where the nature of the difficulty in the roof was undetectable at first workings, there could not be any causal connection between the absence of any recording and notification of first workings information and the risk of safety to the workers. · The mining plan for stripping the relevant area in 304 Panel catered, whether by deliberate design or not, for the area of poor roof by providing stook X in its planned size; · On the balance of probabilities the roof fall was caused by the robbing of stook X and there was no basis for concluding that the corporate defendants could have reasonably foreseen the skimming of stook X. 24 His Honour stated: "[131] The prosecution advanced its case in relation to both the assessment and recording and notification charges in the context of a risk of roof fall reflected in the signs of poor roof which were evident at various points throughout the mining of 304 Panel, 25 cut-through over the period 15 to 17 July 1998. Those signs, it was contended, were evident in 1 heading and throughout the pillar stripping operation between 1 and 3 headings and also in 3 heading itself. The recording and notification charge related essentially to the failure to give prior indication thereby of the discovery in first workings of the poor roof in 3 heading. [132] This approach does not depend upon the skimming of stook X, a concentration upon which it was submitted is misconceived as wrongly concentrating on the accident itself rather than the risk to safety, which need only be a potential risk. It was submitted that the prosecution has run its case "in a way which makes it possible to find that the charges are made out in relation to potential risk without finding a causal connection with a more limited risk that caused the accident"… [133] There seems to me to be a fundamental difficulty with this approach on the facts of this matter. That there were signs of poor roof is clear. What is not so clear is that there was a risk associated with that roof beyond the ever present and normal risk which the mining system is intended to manage. The minimum support rules provide for testing the roof and, where it is found to be poor, supporting it in an appropriate fashion; the poorer the roof the heavier the concentration of bolting and the application of W-straps and the like. While miners are testing the roof, by employing the recognised means, there is in that process no inherent failure by the employer to ensure the safety of employees. If that were not so, it seems to me the very process of mining underground by these accepted means would have to be regarded as inherently dangerous to the point where the employer has failed, or perhaps cannot but fail, in its statutory duty. That view cannot be supported. [134] In a pillar stripping operation the technique is to mine in a retreating fashion so that the continuous miner is constantly alongside a wall of coal which operates as support for the roof, which is becoming the goaf. That process, which it must be recalled is an approved one, creates a roof which is intended to fall after mining has ceased. [135] In the present case, there is in my view, no evidence on which it could reasonably be thought that the testing of the roof during the mining process, as it was undertaken in accordance with the mining plan, exposed employees to a risk of a type which could constitute a breach of s15 of the OHS Act. The signs of poor roof were insufficient to cause the miners any concern that it was outside their experience and ability to control; they installed, in a quite normal way, some extra props and left fenders of coal as the means of dealing with the circumstances they were then experiencing. … [139] I find on the evidence of the three experts, Dr Moelle, Mr Stevenson and Dr Galvin, that the actual weakness in the roof which fell was not detectable prior to the fall and that there was accordingly no known or identifiable risk arising from that weakness. [140] The question of the provision of an adequate system for testing the safety of the roof may also be examined from the perspective that the means of testing employed through essentially sight, sound and vibration, were recognised in the evidence of the experts as the only means of testing the stability of the roof available at the times of this accident. They were the known and accepted means. In these circumstance, there has not been demonstrated, on the evidence, any failure by Powercoal to provide an adequate system for assessing the safety of the roof in the context of its mining plans. … [145] There is sufficient evidence to support a conclusion, on the balance of probabilities, that the collapse of the roof occurred as a result of the induced loads imposed on the roof by the mining out of stook X. Both Mr Anderson and Dr Galvin accepted, or described, the purpose of the stook as being to cause a break-off point for any fall in the goaf. That the roof fall broke off around the residual portion of stook X and then into the stub of 3 heading, before breaking off there, seems most likely to have been the result of the virtual elimination of stook X. [146] I am not satisfied beyond reasonable doubt that the prosecution has made out its case on the assessment charge. [147] The faulty roof in the area in which Mr Edwards was working at the time of the fall was indicated by the strapping in the stub of 3 heading. The presence of the strapping itself did not identify any more than that the roof had been found at first workings to require extra support. However, the support of the roof in the stub in that way meant that there was no barrier to persons undertaking work under that supported roof. In its designed state as a stub heading, it was not part of any goaf area. As I have said, that the fall occurred in that area seems to me, on any view of the evidence, attributable to the reduction in size of stook X. The continuous miner was, at the time of the fall, positioned partly in 3 heading and partly in an area which should have been part of stook X. It was actually engaged in skimming the stook at the time of the fall. Stook X was thereby brought to its final, reduced size. [148] It must be emphasised that the charges involved in this matter are not related to the reduction in size of stook X. The failures alleged in the charges go to the absence of any recording and thus notification of the weakness identified in the 3 heading stub at the time of first workings on plans to be used for second workings and secondly, the failure to provide an adequate system for assessing the safety of the roof. As to the recording and notification charge, the prosecution has established that there was an absence of recording on any plans used for second workings of the poor roof condition represented by the W straps in the stub of 3 heading. It follows that there was no notification of that earlier discovery through any plan. In circumstances where the mining officials and crew were aware of the indicia of poor roof in the form of the W straps, and where the nature of the difficulty in the roof was undetectable at first workings, there cannot be any causal connection between the absence of any recording and notification of first workings information and the fall of the roof or the relevant risk to safety to which the workers, and particularly Mr Edwards, were exposed. The mining plan for stripping the relevant area in 304 Panel catered, whether by deliberate intention or not, and whether or to directly or indirectly, for that area of poor roof by providing stook X in its planned size. … [150] I am also not persuaded that the notification of bore hole indications of defects in the roof would have assisted with the avoidance of any relevant risk to the crew. On the evidence, any abnormal risk associated with mining was non-existent in the areas in which the men were working until stook X was drastically reduced. Dribbly or flaky roof occurring in the area of the goaf was a normal experience. The continuous miner was retreating from those areas, as intended. To treat awareness of bore hole indications as of any assistance would be tantamount to suggesting that the mining crew would not have reduced the size of stook X, in breach of the rules, had they known of those indications. The roof fall itself occurred while the miner was in a position that was never intended for it, widening 3 heading without the requisite special approval. Yet, had stook X been as designed, 3 heading was a safe work area with a roof which had been secured. The real point is that stook X should not have been skimmed, but the charges did not go to that. … [156] I conclude the prosecution has not established a relevant failure by Powercoal in relation to the recording and notification charge. [157] It follows that the charge against Mr Foster must be found to have not been established." 25 As these extracts make clear, the critical step in his Honour's reasons was the factual finding that the only reason the roof fell into the working area was the removal of stook X. 26 The trial judge did not need to consider defences under s53 of the OH&S Act.

The Full Bench Judgment 27 The Full Bench granted leave to appeal on the basis that "the decision at first instance contain[ed] significant errors of fact and of law that go to important aspects of the Commission in Court Session's jurisprudence in occupational health and safety prosecutions and it is in the public interest that these errors be corrected" (at [95]). 28 The Full Bench summarised the applicable legal principles at [97]: " … we join with the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [16] in endorsing the 12 propositions conveniently set out by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at [20] as representing the current state of the law in respect of the nature of the liability created by s 15(1), namely: (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence. [98] We have proceeded to determine this matter on the basis of the foregoing propositions subject to what we say shortly regarding 'speculative' and 'unduly remote' risks to safety."

Risk of Roof Fall 29 In relation to the risk of roof fall, the Full Bench found Peterson J had erred in concluding that there was no known or identifiable risk because the actual weakness in the roof which fell was not detectable prior to the fall: "[105] As to the finding by his Honour that "the actual weakness in the roof which fell was not detectable prior to the fall and that there was accordingly no known or identifiable risk arising from that weakness", it is, of course, not necessary for the prosecution to succeed under s 15(1) to show that the defendant knew the precise nature of the risk that may have caused injury to an employee. In other words, it was not necessary for the corporate respondent in this case to have known, in Dr Moelle's words, that there was 'an unusual depositional configuration, involving conglomerate and laminate units with extremely weak contacts and very little effective bonding in the immediate roof, approximately 5 to 8 metres above the working roof' thus producing a very significant weakening in the roof. … [107] … focussing too closely on a narrow class of risk, defined by reference to the peculiarities of the incident under scrutiny, can lead to the error of concentrating on the incident itself. Such an approach may well lead to a misunderstanding of the real facts on which a charge is based. This is an error into which Peterson J fell. His Honour found, in effect, that the reason the roof fell and caused the fatal injury to Mr Edwards was because of a particular weakness in the roof identified by three of the expert witnesses, which was exacerbated, his Honour seems to have considered, by the reduction in size of stook X. That is, his Honour found that the risk to safety lay in the roof weakness and because the weakness was not known to the defendant and was not detectable, there was no risk. [108] It may be seen that his Honour focussed on the specific detriment to safety (i.e., the weakened section of the roof that collapsed because of the mining of stook X) causing the fatal injury to Mr Edwards. This was not a risk to which the charges were directed. The charges ranged much more widely (and over a longer period than just the shift on 17 July 1998 when stook X was mined). They alleged there was a risk of the roof falling in while employees were in the vicinity of 1, 2 and 3 Headings adjacent to 25 cut through and that the defendant failed to avert the risk by not providing an adequate system for assessing the roof and not implementing and adequate system of recording and notification to employees of roof problems and roof history. This is the risk his Honour was required to address and it was not open to the trial judge to formulate a different risk." 30 The Full Bench concluded the risk of roof fall was not impossible to anticipate or unduly remote: [111] In the present case, however, we do not consider that the risk to safety was impossible to anticipate, merely speculative or unduly remote (to the extent that issue is relevant). Apart from the ever-present risk of roof collapse, it is our assessment of the evidence there were very clear indications pointing to the existence of a risk from the roof falling in and that his Honour was either mistaken in relation to them or understated these indications. The evidence was that either non-conglomerate or inferior conglomerate roof had been detected in the relevant area of the mine prior to the roof fall, indeed as early as the first workings. Non-conglomerate material is more susceptible to failure than a solid conglomerate roof and as Mr Dellaca, a mine deputy, said in his evidence 'you treat it warily'. Further, the results of test bore holes drilled prior to first workings in the area of 304 Panel, suggest that the roof was sandstone; other like material recorded it as conglomerate and sandstone. As we noted earlier, the relevant Pillar Extraction Approval Conditions (condition 8) stated that: In particular a sandstone/shale roof or a thin conglomerate/shale roof may give no warning of collapse. Those areas where the roof is not conglomerate should be denoted and placed on all plans associated with pillar extraction. [115] Thus, whilst the corporate respondent was not aware of the precise nature of the weakness in the roof, there were definite warning signs that the roof presented a risk to safety. It could not be said, in these circumstances, that a risk of the roof falling was impossible to anticipate or even that it was merely speculative or unduly remote. Accordingly, there was a clear obligation on the defendant to take measures to protect employees against the risk of the roof falling in. But, importantly, even absent these warning signs, the obligation remained on the defendant to ensure the safety of employees: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. [116] Senior counsel for the respondents submitted that the signs of poor roof did not evidence a risk beyond that normally encountered beyond the inherent risk of working in a mine. It might be correct that the signs of poor roof did not indicate the presence of the particular weakness that eventually contributed to the collapse of the roof. But that is not the point. The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety. It could not be assumed in these circumstances (regardless of whether stook X had remained intact), that the risk ended at the edge of the goaf area adjoining 25 cut through and that persons working beyond the goaf area were, therefore, safe. There was evidence that in the process of pillar stripping a roof fall can run into the working area. 31 The Full Bench also found that Peterson J had wrongly focussed on the skimming of stook X: "[122] We do not propose to dwell on the issue of the reduction of the size of stook X as being the cause of the risk of injury. As his Honour correctly observed at [148], the charges were not related to that issue. … [123] We agree with the appellant that a focus on the skimming of stook X as being the cause of the roof fall and thereby the fatal injuries to Mr Edwards was misconceived because it could lead to the wrong inquiry. The issue is not whether the corporate respondent failed to ensure safety by failing to take steps to ensure stook X was not skimmed thereby giving rise to a risk of the weakened section of the roof falling in at that location; rather the inquiry is a broader one: Did the corporate respondent fail to ensure the safety of employees by failing to provide an adequate system for assessing the safety of the roof in the area where employees were working between 15 and 17 July 1998 and by failing to implement an adequate system of recording and notification to employees of roof problems and roof history? It is to be noted that the mining of stook X did not occur until 17 July 1998 whereas the risk is alleged in the charges to have been in existence since 15 July 1998."

Assessment charge 32 In relation to the assessment charge, the Full Bench found that Peterson J had erred in finding that visual inspection and sounding of the roof constituted an adequate system for assessing the safety of the roof, on the basis that it was the only "known and accepted means" of doing so: "[127] We do not accept that visual inspection and sounding/vibration with a metal bar constituted an adequate system for assessing the safety of the roof; it was plainly not. Regardless of whether the visual inspection and sounding/vibration methods were the only 'known and accepted' means of assessing the safety of the roof - and we think there is doubt about that given the evidence regarding the other measures referred to by the appellant - a system of assessment is not made adequate because it is said to be the only means available. We consider there was an over reliance on sounding the roof as the means of assessing its competency to the extent that it detracted from the need for the appellant to take a more systematic and broader approach to the question of whether there was a risk of roof fall that might jeopardise the safety of the mine workers. [128] It is not open to an employer, in answer to a charge under s 15(1), to contend that it was unable to assess whether something was safe because there was no method or technology available to do so (subject, of course, to any available defences). Employees cannot be placed in a situation where the employer is unable to ensure, or make certain, or guarantee their safety. That is not to say that visual inspection and sounding with a metal bar cannot be used in testing the safety of a roof in an underground mine. As long as it is comprehended that in relying on these methods alone is not a guarantee of safety. 33 The Full Bench also found that there was a causal relationship between the inadequate system of assessment and the risk of roof fall: [129] …There will be a causal connection if the corporate respondent's failure to provide an adequate assessment system failed to avert the risk to safety of the roof falling in. Clearly, in this case, it did. Visual inspection and soundings using a metal bar, which was essentially the method used by the defendant to assess the safety of the roof, did not avert the risk of the roof falling in. In fact the roof fell in and killed Mr Edwards, thereby putting beyond any doubt that the corporate respondent failed to obviate the risk to employees working in the relevant area. If there had been an adequate system of assessing the safety of the roof we are satisfied the risk would have been avoided.

Notification charge 34 In relation to the notification charge the Full Bench noted that Peterson J had found there was an inadequate system of recording or notification, but concluded that his Honour had erred in finding that there was no causal connection between the inadequate system of recording and notification and the risk to which the workers were exposed: [142] In our opinion, if all of the indications of poor roof had been collected and recorded in a plan relating to the extraction process - a plan considered by Dr Galvin to be important in evaluating the magnitude, nature and direction of geological features; had the plan been continually updated during second workings; and, had such information been notified to employees, it would have conveyed to these employees that they could not proceed on the assumption they were working in connection with the relative safety of a solid conglomerate roof and that if work was to proceed it should only be in the most careful manner. It would also have become evident to the corporate respondent that it needed to take steps to ensure that the risk to safety of the roof falling in did not impact on employees whilst they were working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998. [143] We consider that the failure on the part of the corporate respondent to implement an adequate system of recording and notification to employees of roof problems and roof history was a causal factor in the corporate respondent's failure to ensure that employees were not exposed to the risk of the roof falling in while the employees were working in the relevant area between 15 and 17 July 1998."

Section 53 defences 35 Having found the corporate defendant guilty of both the assessment and the notification charge, the Full Bench had to consider whether or not the corporate defendant had successfully made out a defence to the charges under s53 of the OHS Act. That section provides: "53 It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 36 The Full Bench concluded the defence was not made out: [149] In relation to the recording and notification system we do not consider the respondent has discharged the onus of proving that it was not reasonably practicable to provide such an adequate system. The expert evidence was that it was desirable to do so and we cannot see any obstacle at all to the respondent having done so both in relation to the first and second workings. It would have been a relatively simple matter to place on the working plans relating to the extraction process the information relating to the inferior roof in 1 and 3 Headings and to progressively update those plans as work progressed in the second workings. Further, it would have been a straightforward task of notifying employees on a regular and progressive basis of the information relating to the state of the roof. Had the corporate respondent done so we are satisfied the risk to safety would have been averted. [150] In relation to the assessment system, it essentially comprised of visual inspections by the mineworkers and sounding the roof with a metal bar. The evidence of Dr Galvin, which was accepted by Peterson J, was that these were the only means available in 1998 to test the safety of the roof. However, such means were incapable of detecting the weakness in the roof identified by the expert evidence. [151] The corporate respondent's defence under s 53(a) hinged on the contention that 'if the happening of an event is not reasonably foreseeable, then it will not generally be reasonably practicable to make provision against that event': WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2000) 100 IR 182 at [87]. As we understood the respondent's submission, the expert evidence was that the weakness in the roof, exacerbated by the unauthorised reduction in size of stook X, was undetectable by the means available to assess the roof, the risk of the roof falling was not reasonably foreseeable and, therefore, it was not reasonably practicable to ensure the safety of the employees. [152] The respondent was aware of the limitations inherent in visually inspecting the roof and in sounding it with a metal bar. Moreover, as we observed at [116] above: The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety. It could not be assumed in these circumstances (regardless of whether stook X had remained intact), that the risk ended at the edge of the goaf area adjoining 25 cut through and that persons working beyond the goaf area were, therefore, safe. There was evidence that in the process of pillar stripping a roof fall can run into the working area. [153] In those circumstances we consider, contrary to the corporate respondent's submissions, the risk of the roof falling in was reasonably foreseeable. As to the question of whether it was reasonably practicable to ensure the mine workers' safety, there was nothing impracticable in the respondent ordering mining to cease in the area that was the subject of the roof assessment charge until an adequate assessment of the safety of the roof had been carried out and we are satisfied such an assessment was reasonably practicable by the following means, namely: 1 The system of work should have required a comprehensive inspection and assessment of each area where work was carried out before second workings commenced. 2 The system of work should have required a risk assessment of each area where work was to be carried out when the method changed from pillar extraction to pillar stripping. 3 The system of work should have required that the mine officials' reports be analysed over more than one shift to determine whether a pattern of instability was emerging. 4 The system of work should have given priority to all indicia of roof instability and not overriding significance to sounding the roof and looking for stress on the timber props. 5 The system of work should have required that work cease in the event of the indicia of unstable roof conditions being present. There was no evidence as to the impracticability of just leaving the area, fencing it off and not working there at all. None of the above steps were impractical or unreasonable. There is nothing in terms of money, time and trouble that would have prevented these measures from being implemented. [154] Given the magnitude of the risk to employees of the roof falling in, the foregoing measures should, unquestionably, have been in place. There was clearly an over reliance on visual inspection and sounding, methods that were demonstrably inadequate. Had there been a comprehensive system of risk assessment and inspection in place where the risks associated with the roof were actively searched out and rigorously assessed, it would have become evident, as we have explained earlier in this judgment, that there was a risk of the roof falling in."

Mr Foster 37 The Full Bench held that the personal defendant, Mr Foster, "as mine manager, had full charge and control of all employees at the mine" (at [174]) and was therefore also deemed to be guilty of the assessment and notification charges under s50 of the Act. The Full Bench held that Mr Foster had not made out a defence "for the same reasons expressed in relation to the corporate respondent…" (at [177]).

Constitutional Incompatibility 38 The Claimants challenge the conferral of criminal jurisdiction upon the Industrial Relations Commission on the basis that the predominant jurisdiction exercised by the Commission is arbitral and/or quasi legislative. They submit that those functions are incompatible with the exercise of a criminal jurisdiction. The Claimants submit that Ch III of the Australian Constitution prevents the State legislature from granting to a State court judicial powers to be exercised in circumstances where the principal powers reposed on the judges thereof are incompatible with the exercise of judicial power. This submission is based on the proposition that the Industrial Relations Commission does in fact exercise federal jurisdiction and that a court exercising such jurisdiction must be and remain a fit repository for such jurisdiction. This submission invokes the High Court decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. However, it is not possible to extend the reasoning in Kable as far as the Claimants seek in view of the High Court judgment in Fardon v Attorney General (Qld) (2004) HCA 46; 78 ALJR 1519. 39 I do not find it necessary to set out in any detail the numerous provisions of the IR Act relied upon with respect to these submissions. I accept that the primary function of the Commission is arbitral and the fact that the Commission in Court Session is described in s152 of the IR Act as a "superior court of record" is not determinative. (See Waterside Workers Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 467.) 40 The combination of powers conferred on the Industrial Relations Commission could not be conferred on an institution by the Commonwealth Parliament. The dominant purpose and functions of the Commission are such that the Commonwealth Parliament could not create such an institution. (See R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 esp at 281-282, 288-289.) 41 One answer to the case sought to be agitated in this respect could be that the existence of the alleged incompatibility would be such as to lead to the conclusion that any Act of the Parliament of the Commonwealth should be read down so as not to confer federal jurisdiction on the Industrial Relations Commission. Specifically, the general provision for conferring federal jurisdiction on the "several courts of the States within the limits of their several jurisdictions" in s39(2) of the Judiciary Act 1903 (Cth), and any conferral of jurisdiction by or under any other Commonwealth Act, as envisaged in s39A of the Judiciary Act, would be read down so that no conferral of jurisdiction was made on a body which exercised dominant functions incompatible with the conferral of federal jurisdiction. Although no party appearing in this Court sought to advance this proposition, the Court would have had to consider the matter if there were not another complete answer to this argument. There is such an answer in the significant restriction on the scope of the Kable doctrine determined by the High Court in Fardon. 42 In Fardon all members of the majority framed, at least in part, the restriction on State legislative power in terms of laws which would impinge upon the "institutional integrity" of the State court: "substantially impairs" ([15] per Gleeson CJ and see [23]); "compromises" ([37] per McHugh J); "repugnancy to or incompatibility with" ([101] per Gummow J); "not compromised" ([219] per Callinan and Heydon JJ). Indeed, Gummow J described "institutional integrity" as the "touch stone" (at [102]). 43 McHugh J stated: "[41] The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised." 44 Furthermore McHugh J stated at [43]: "[43] Kable is a decision of very limited application. That is not surprising. One would not expect the States to legislate, whether by accident or design, in a manner that would compromise the institutional integrity of their courts. Kable was the result of legislation that was almost unique in the history of Australia. More importantly, however, the background to and provisions of the Community Protection Act pointed to a legislative scheme enacted solely for the purpose of ensuring that Mr Kable, alone of all people in New South Wales, would be kept in prison after his term of imprisonment had expired. The terms, background and parliamentary history of the legislation gave rise to the perception that the Supreme Court of that State might be acting in conjunction with the New South Wales Parliament and the executive government to keep Mr Kable in prison. The combination of circumstances which gave rise to the perception in Kable is unlikely to be repeated. The Kable principle, if required to be applied in future, is more likely to be applied in respect of the terms, conditions and manner of appointment of State judges or in circumstances where State judges are used to carry out non-judicial functions, rather than in the context of Kable -type legislation." 45 Similarly, Callinan and Heydon JJ stated at [219]: "[219]… It is necessary to keep in mind the issues with which Kable was concerned and the true nature of the decision which the court made there. Despite the differing formulations of the justices in the majority, the primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the Court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of federal judicial power under Ch III of the Constitution. This court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid. Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution." 46 The incompatibility identified by the Claimants in this case is, in my opinion, not of the same character as the incompatibility which arose in Kable. Following Fardon, an incompatibility of the kind relied on in this case cannot be said to fall within the Kable doctrine. 47 As McHugh J stated in Fardon at [40]: "Moreover, as Gaudron J pointed out in Kable : 'There is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.' Nor is there anything in the Constitution that would preclude the States from legislating so as to employ non judicial tribunals to determine issues of criminal guilt or to sentence offenders for breaches of the law…" 48 Accepting, as Callinan and Heydon JJ said in Fardon, that the test of whether Chapter III would be infringed if the State Act were a Commonwealth Act is a useful one, the dominant purpose reasoning in Boilermakers is not, in my opinion, an analysis which impinges upon the institutional integrity of the Commission as a court. The strict test for the separation of powers applied in Boilermakers is derived from the terms and structure of the Commonwealth Constitution. (See esp at 274-270, 289.8.) A conclusion that institutional integrity has been impaired requires incompatibility of a fundamental character. The dominant purpose reasoning in Boilermakers does not, in my opinion, involve incompatibility of such a character. The mere fact that powers are not strictly separated does not impair the institutional integrity of the court. Something considerably more is required. There is nothing more here.

Jurisdictional Errors 49 The Claimants identified a range of alleged errors, none of which are, in my opinion, capable of constituting an error of a character which is susceptible to judicial review. The Claimants asserted that certain findings of fact (at [112], [113], [114], [115], [137], [141], [142], [143]) were not supported by the evidence or were unduly speculative. These submissions concerned matters which were, in my opinion, clearly within the jurisdiction of the Commission to decide and to do so, if that is what occurred, incorrectly. There is no basis for judicial review. 50 Perhaps greatest emphasis, in this respect, was placed on the alleged error in failing to properly assess the risk of roof fall into the work area, as distinct from the goaf area. Reference was made to the Full Bench reasons in [143], [144], [115] and [119]. The Claimants also gave significant emphasis to the evidence that the actual cause of the roof collapse was the stripping of stook X. However, the Full Bench addressed and rejected the proposition that this causal finding was determinative on the charges lain. These matters all appear to me to raise issues of fact, including by way of inference, about which the Commission is entitled to err within jurisdiction. 51 The Claimants did not rely on Wednesbury unreasonableness, nor on the category of jurisdictional error identified by the High Court that a decision was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds". (See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [52], [173] and cf [9]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38] and [1].) 52 In the end, the Claimants relied on two alleged errors, said to be jurisdictional or errors of law on the face of the record. First, the Claimants asserted that the Full Bench failed to apply the criminal standard of proof of beyond reasonable doubt when convicting each of the Claimants. Second, it was submitted that the Full Bench substituted its own views for the views of the trial judge in contravention of the restriction on its appellate authority. 53 Section 191 of the IR Act is in the following terms: "191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Note. The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders." 54 Section 191 expressly applies to appeals against acquittals in proceedings for offences against occupational health and safety legislation, as a result of s197A(6) which states: "197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation … (6) Section 191 applies to an appeal under this section." 55 The Claimants submit that each of these jurisdictional matters are of a character that are not protected from judicial review in this Court by the widely drawn privative clause in s179 of the IR Act. Notwithstanding the breadth of the clause, extending as it does to a "purported decision" and, accordingly, to jurisdictional error, it does not apply to error of the kind referred to in Australia as the Hickman principle. 56 Accordingly, decisions which are not protected by s179 include decisions which, as a matter of statutory construction, are found to breach an "inviolable restriction or restraint". The position is authoritatively set out in the judgments of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. I have set out the relevant paragraphs and the propositions in earlier judgments. (See Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 at [68] and Woolworths Limited v Pallas Newco Pty Ltd 61 NSWLR 707 at [81].) I have outlined the development of the "inviolable limitation or restraint" principle in Mitchforce at [67]-[92]. I reaffirm my opinion that s179 does not protect from judicial review a "purported decision" which failed to observe an inviolable restriction or restraint. 57 I have no doubt that the criminal standard of proof - described by Sir Edward Coke as the golden metwand of the common law - is an inviolable restriction. The position with respect to the provisions of s191 of the IR Act in the context of an appeal against an acquittal is not so clear. Nevertheless, in this case I am prepared to proceed on the basis that it is also an inviolable restriction.

Application of the Criminal Standard of Proof 58 When expressing its conclusions and making the findings of guilt, the Full Bench did not, in terms, use the language of beyond reasonable doubt. Nevertheless, I am satisfied that their Honours did apply the criminal standard. I have set out above the relevant extracts from the judgment of the Full Bench. I will refer to the relevant paragraph numbers below. 59 The most significant indicator in this respect is the summary of the applicable legal principles in par [97] of the judgment of the Full Bench, which their Honours stated to represent the current state of the law with respect to the liability created by s15(1) of the OH&S Act. Proposition 12 states explicitly, to repeat: "The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence …" 60 As noted above the Full Bench went on immediately in par [98] to state "we have proceeded to determine this matter on the basis of the foregoing propositions". 61 There are a number of other indications that the Full Bench did not overlook this fundamental principle. 62 When reciting the Respondent's submissions, the Full Bench made reference to the criminal standard on three separate occasions (at pars [69], [80] and [82].) 63 In par [98] the Court stated that it adopted the propositions in [97], subject to further observations on "speculative" and "unduly remote" risks. When it came to consider that matter, the Court made reference to an earlier judgment of Walton J in Workcover Authority of NSW (Inspector Charles) v Kirk Group Holdings Pty Ltd & Ano (2004) NSWIR Comm 207 where his Honour had said at par [134]: "If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard."

In par [109] the Full Bench stated that it agreed with that observation. Furthermore it proceeded to make a finding that the risk in the present case was not such as could be classified as impossible to anticipate merely speculative or unduly remote in par [111]. 64 When determining the Assessment Charge the Full Bench said at [129], to repeat: "In fact the roof fell in and killed Mr Edwards thereby putting beyond any doubt that the corporate respondent failed to obviate the risk to employees working in the relevant area." [Emphasis added] 65 Similarly, when determining the recording and notification charge the Full Bench said at [141], to repeat: "But in the light of the absence of any adequate system of recording … there was no collection and coordination of the information that, considered as a coherent whole, would have undoubtedly indicated a risk to safety." [Emphasis added] 66 Similarly, when making the findings with respect to Mr Foster the Full Bench reiterated the elements of an offence under s50(1) and stated at [157]: "The onus of proving these elements beyond reasonable doubt falls on the prosecutor." [Emphasis added] 67 The Court went on to note the submission of counsel for Mr Foster that the contravention by the corporation must be proved beyond reasonable doubt before s50 operates at all (at [158]). 68 The Court then went on to note that as the corporate respondent had already been found guilty of the offence the issue that arose under s50(1) was: "[162] … All that is now required of the Appellant in relation to the personal respondent is to prove beyond reasonable doubt the three elements of the offence under s 50(1) of the Act." [Emphasis added] 69 The Claimants submitted that all of these references constituted in some manner mere lip service to the criminal standard and that, as a matter of substance, the Court did not apply the standard of proof beyond reasonable doubt. Various findings of fact were drawn to the Court's attention which were not expressed in the language of beyond reasonable doubt. It is quite inappropriate in judicial review proceedings to seek to parse and analyse a judgment in this manner. In substance, these aspects of the submissions on the part of the Claimants sought to turn judicial review proceedings into an appeal on a question of law and, to some degree, an appeal from findings of fact. This Court should not adopt such a course. This is not an appeal. 70 The Claimants drew the Court's attention to a number of passages from the Full Bench judgment which do not use the language of 'beyond reasonable doubt': [111], [115], [116], [152], [127], [130], [143]. 71 That in some parts of its judgment the Full Bench uses language that is not in terms the language of beyond reasonable doubt does not appear to me to be of any particular significance in the context of the judgment as a whole. No doubt there will be cases in which it is appropriate to conclude that the invocation of the beyond reasonable doubt standard was a mere invocation and that the Court did no more than pay lip service to the principle. (See, e.g. Harling v Hall (1997) 94 A Crim R 437 at [8]; Lions v Taylor (1999) WASCA 86 at [10] and [19].) This is not such a case. Considering the judgment as a whole, the Full Bench did, in my opinion, apply the criminal standard of proof.

Substitution of Views 72 The Claimants direct attention to a number of passages in the judgment in which the Full Bench made various findings which, they submit, were of a character which represented the mere substitution of the views of the Full Bench with those of the trial judge, without applying the test for an appeal set out in s191. I do not find it necessary to refer to all of these paragraphs. Of course there are many places at which the Full Bench makes its own findings. It is essential to the Claimants' submissions in this regard that this Court accept the proposition that the Full Bench did not first find that Peterson J erred. In my opinion that proposition should be rejected. The Full Bench did make such findings in all relevant respects. 73 The passages relied upon by the Claimant commence at par [111] of the judgment of the Full Bench. However, by that stage of the judgment the Full Bench had already identified errors, of both fact and law, in the following passages: · [95] "We have decided to grant leave to appeal. The decision at first instance contains significant errors of fact and law that go to important aspects of the Commission in Court Session's jurisprudence in occupational health and safety prosecutions and it is in the public interest that these errors be corrected." · [107] "There are two relevant and important points that emerge from the foregoing extracts in O'Sullivan and Kirk Group Holdings. First, focussing too closely on a narrow class of risk, defined by reference to the peculiarities of the incident under scrutiny, can lead to the error of concentrating on the incident itself. Such an approach may well lead to a misunderstanding of the real facts on which a charge is based. This is an error into which Peterson J fell." · [108] "It may be seen that his Honour focussed on the specific detriment to safety (ie the weakened section of the roof that collapsed because of the mining of stook X) causing the fatal injury to Mr Edwards. This was not a risk to which the charges were directed. The charges ranged much more widely (and over a longer period than just the shift on 17 July 1998 when stook X was mined). They alleged there was a risk of the roof falling in while employees were in the vicinity of 1,2 and 3 Headings adjacent to 25 cut though and that the defendant failed to avert the risk by not providing an adequate system for assessing the roof and not implementing an adequate system of recording and notification to employees of roof problems and roof history. This is the risk his Honour was required to address and it was not open to the trial judge to formulate a different risk." 74 Furthermore, from [111]-[116] the Full Bench considered the issue of the existence of a risk to safety. Some of the statements, to which the Claimants referred, are not directed to a finding of error by the trial judge. However, this analysis commences with a statement at [111]: "… there were very clear indications pointing to the existence of a risk from the roof falling in and that his Honour was either mistaken in relation to them or understated these indications." 75 The analysis concludes: "[117] In conclusion on the question of risk, we consider Petersen J erred in finding that there was no risk against which the defendant should have taken measures to ensure the health, safety and welfare of employees." 76 When dealing with the emphasis his Honour gave, which the Claimants press on this Court, to the fact of the robbing of the stook as the cause of the accident, the Full Bench said: · [123] "We agree with the appellant that a focus on the skimming of stook X as being the cause of the roof fall and thereby the fatal injuries to Mr Edwards was misconceived because it could lead to the wrong inquiry. This issue is not whether the corporate respondent failed to ensure safety by failing to take steps to ensure stook X was not skimmed thereby giving rise to the risk of the weakened section of the roof falling in at that location; rather the inquiry is a broader one: Did the corporate respondent fail to ensure the safety of employees by failing to provide an adequate system for assessing the safety of the roof in the area where employees were working between 15 and 17 July 1998 and by failing to implement an adequate system of recording and notification to employees of roof problems and roof history? It is to be noted that the mining of stook X did not occur until 17 July 1998 whereas the risk is alleged in the charges to have been in existence since 15 July 1998." 77 When dealing with the Assessment Charge the Full Bench made the following observations about the trial judge's reasons: · [126] "Despite the limitations of visual inspection and sounding /vibration, a matter of which Peterson J was aware, his Honour adopted the approach that if there were no other means available to assess the stability of the roof and if the "known and accepted means" were used, the corporate respondent did not fail to provide an adequate system for assessing the safety of the roof." (The Opponent submits this is an implicit finding of error). · [127] "We do not accept that visual inspection and sounding/vibration with a metal bar constituted an adequate system for assessing the safety of the roof; it was plainly not. Regardless of whether the visual inspection and sounding/vibration methods were the only "known and accepted" means of assessing the safety of the roof - and we think there is doubt that given the evidence regarding the other measures referred to by the appellant, a system of assessment is not made adequate because it is said to be the only means available. We consider there was an over reliance on sounding the roof as the means of assessing its competency to the extent that it detracted from the need for the appellant to take a more systematic and broader approach to the question of whether there was a risk of roof fall that might jeopardise the safety of the mine workers." (The opponent says this is a Warren v Coombs (1979) 142 CLR 531 type finding). 78 When dealing with the Notification Charge the Full Bench made the following observations: · [132] "As we have observed, his Honour found there was no recording on any plans used for second workings of the poor roof conditions represented by the W straps in the stub of 3 Heading and, therefore, no notification to employees. However, there was also evidence that there was no recording in relation to the extra bolting in the stub of 1 Heading and no notification of the roof history. We also observe that the recording and notification charge was not limited, as his Honour seemed to believe, to any failures to record at first workings. The evidence was that there was also a failure to notify during the second workings in that reports by mine deputies recording indicia of poor roof were not disseminated to all mineworkers who subsequently worked in the relevant area. It follows that the corporate respondent failed to implement any system of recording and notification relevant to the allegation in the charge, let alone an adequate system." · [139] "…in the course of first workings the roof of the stub in 3 Heading was found to require comprehensive support and the roof in the stub of 1 Heading required bolting in excess of the normal pattern. That fact was not recorded and, therefore, not notified to employees working on the shifts on 15 to 17 July 1998. The focus by his Honour on the particular weakness in the roof overlooks the alleged failure, which was a failure to implement an adequate system of recording and notification to employees of roof problems and roof history." 79 These passages support the following conclusions: · In relation to the risk of roof fall, there is a finding of error at [107], [108], [111], [117] and [123]. · In relation to the system of assessment, it is implicit in the language of [126] and [127] that the Full Bench found the trial judge to be in error. The identification of error in the judgment below is gentle, but it is a finding of error nonetheless. · In relation to the notification and recording charge, as stated above, the only relevant issue is the issue of causation. Again, there is no express statement of error but it is implicit in [132] and [139] that the trial judge was in error in relation to the causation issue. In conjunction with the general statements of error in [95], [107], [108], [117] and [123] this is sufficient to indicate error in the judgment below. 80 In my opinion, the Claimants' submission that the Full Bench did not comply with s197A(6) cannot be sustained. It cannot be said that the Full Bench merely substituted its decision, contrary to s191(3). It is unnecessary to consider the interpretation of s191. On any interpretation, the Claimants' submissions should be rejected.

The s53 Defences Submission 81 In relation to the s53 defences the Claimant submits: · That the finding of breach in [179] is an error of law on the face of the record because it does not accord with the findings of the trial judge, none of which had been found to be in error. · That the Full Bench did not use the appropriate test to determine whether or not it was "reasonably practicable" as required by s53(a), in that they did not consider the relevant matters raised in the proceedings, particularly the findings of the trial judge and also its own findings. 82 As to the first point, I have rejected above the submission that the Full Bench did not make findings that the trial judge erred. 83 In relation to the second point, it is submitted that the Full Bench 'misinterpreted' the section by not applying the findings of the trial judge to it. This is not capable of being a 'misinterpretation' of the section. The submission emphasised the trial judge's finding that there was no risk of a roof fall until the stook was robbed. The Full Bench rejected this finding. It was not explained how, in the face of that reasoning, the Full Bench could err in law by failing to adopt the trial judge's finding. 84 The trial judge did not make any findings in respect of the issues raised by the defence provisions contained in s53. The Full Bench had to decide for the first time whether the defence was made out. It was entitled to rely on its own view of the facts to do so. As Gaudron J stated in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [53]: "… the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts". 85 The submission that the Full Bench failed to refer to its own findings of fact is completely without substance. The passages relied on were references by the Full Bench to the findings of the trial judge, which the Full Bench rejected. 86 In par [153] set out in par [36] above, the Full Bench made clear findings on what steps were "reasonably practicable". The Full Bench's conclusion on the defences involved findings of fact and the making of a judgment which were open to the Full Bench. There is no error of law or jurisdictional error. The Claimants' submissions never rose above the proposition that they should have won on the facts.

Mr Foster's Submissions 87 The Claimant, Mr Foster, puts forward two alleged errors of law which he submits appear on the face of the record and justify this Court exercising supervisory jurisdiction. These two matters arise over and above the matters raised in the submissions of the Claimant, Powercoal. 88 First, he submits that the Full Bench erred in its construction of s50 of the OH&S Act 1983. Secondly, he submits that the Full Bench failed to apply the defence in s53 of that Act to himself. 89 Section 50 of the OH&S Act provides: "50 Offence by corporations (1) where a corporation contravenes, whether by act or omission any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section." 90 The Claimant submits that the reference to persons "concerned in the management of the corporation" does not extend to a person such as himself who is the manager of a colliery. He submits that this section is directed only to those persons at the highest levels of the corporation structure who are involved in the overall management of the corporation. 91 The Full Bench made a finding of fact, accepting the submission of the Appellant before it, that Mr Foster had the highest level of supervisory control of all matters at the Awaba Colliery and that he had ultimate supervisory control over all occupational health and safety matters at that colliery. 92 The Full Bench also referred to s37 of the Coalmines Regulation Act 1982 pursuant to which the manager of a mine, subject to instructions from the owner or superintendent or assistant superintendent of the mine: "37(1)(d) Shall have full charge and control of (i) all persons employed at the mine, and (ii) all operations at the mine." 93 The Full Bench drew particular attention to the specific obligation in s37(2) to the following effect: "37(2) Without limiting the generality of subsection (1), the manager of a mine shall: … (c) if the mine is an underground mine: … (ii) ensure that the roof and sides of working places and roadways in the mines … are adequately supported when necessary for safety." 94 The Full Bench also referred to evidence that Mr Foster's responsibilities included developing and implementing a safety management plan for Awaba Colliery as well as other managerial responsibilities. 95 The Claimant invoked the line of case law which refers to persons constituting the directing mind and will of the corporation (including Tesco Supermarkets Limited v Nattrass [1972] AC 153). This line of case law is concerned with the determination of when a particular person can be said to be the corporation for such purposes as knowledge or notice. It is of no relevance to the issue of statutory construction before the Court. 96 The Claimant also invoked the case law on s592 of the Corporation Act 2001 (Cth), previously s592 of the Corporations Law 1991, and before that s556 of the Companies Code. The formulation in that provision is: "Any person who was a director of the company or took part in the management of the company." 97 There is a line of authority which determines that the phrase "management of the company" in s592 is concerned with central management of the company, rather than persons who manage specific assets of the company. (See Omnicon Video Pty Ltd v Kookaburra Productions Pty Ltd (1995) 13 ACLC 1795; and similar reasoning in Holpitt Pty Ltd v Swaab (1992) 33 FCR 474.) 98 The formulation "management of a corporation" is not a term of art. It takes its meaning from its surroundings. The context of the Corporations Act provision is substantially different to the scope, purpose and object of the OH&S Act. It is most unlikely that cases on the Corporations Act sections would be of any significance for present purposes. Insofar as they do have significance they are against the conclusion which the Claimant would seek to have the Court draw. 99 Section 592 of the Corporations Act is concerned with the determination of persons who participated in management at a time when a debt was incurred and when there were reasonable grounds to suspect that the company was not able to pay its debts as and when they became due. Such a context points quite directly to persons concerned with the central management of the company who are likely to have knowledge about the broad range of a corporation's debts, rather than to a manager of a particular unit of the corporation's entity, who may have no knowledge of that general character. 100 Accordingly in Omnicon supra, Bryson J said at p1797: "The overall purpose of the subsection and of the involvement of the person who took part in the management of a company point towards management at the highest level, influence over whether debts are incurred and over an ability to pay and to a corresponding restriction on the very wide range of conduct to which, within the literal meaning of words, taking part in management can refer." 101 Similarly Burchett J in Holpitt supra referred at p476: " … the rationale must be that the person whom the section singles out is an offender because of the significance of his role in the company which incurred the debt. If his role is a junior one, giving him no real influence on the decision … there is no reason to think that the language of the section should be stretched to include him." 102 In the present context, where the concern is with occupational health and safety issues, the equivalent issue to that of incurring the debt in the case of the Corporations Law, is any aspect of the operations of the company insofar as it raises safety considerations. The manager of a mine is clearly within the scope of this purpose. 103 With respect to the Act itself, Mr Foster relied on s19 of the OH&S Act which provides: "19 Every employee while at work - (a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work; and (b) shall, as regards any requirement imposed in the interests of health, safety and welfare on his or her employer or any other person by or under this Act or the associated occupational health and safety legislation, co-operate with the employer or that other person so far as is necessary to enable that requirement to be complied with." 104 Mr Foster submit that s19 was intended to cover all employees, including those who have a supervisory or managerial role. This is to be contrasted with s50 which covers a defined group of persons who control or direct a corporation's activities. 105 Whether or not there is potential for some overlap between s19 and s50 is not, however, determinative of the proper scope of s50 itself. The scope, purpose and object of the legislation is not such that one should read down the language of one section by reason of the possibility of an overlap. 106 Two factors do support the Claimant's contention. First this, is a criminal provision and, in such a case, as John Marshall, Chief Justice of the United States, said: "It is the legislature not the court which is to define the crime and ordain its punishment." ( United States v Wiltberger Five Wheat . 76 (1820) at 95.) 107 To similar effect are the observations of Isaacs J in Scott v Cawsey (1907) 5 CLR 132 at 155 when his Honour said: " … A Court should be specially careful, in view of the consequences to both sides, to ascertain and enforce the actual commands of the legislature." 108 Secondly, a textual indicator in favour of the Claimant's case in this respect is the fact that s50(1) extends to "each director of the corporation and each person concerned in the management of a corporation". The reference to directors does focus attention on persons associated with the central management of the corporation. 109 The structure of s50(1) is to reverse the onus of proof with respect to persons who are directors or otherwise concerned in the management of the corporation. The original defence in s50(1)(a), now repealed, was to the effect "the corporation contravened the provision without his knowledge". Together with the continuing provisions of s40(1)(b) and (c), the effect is to require persons to whom the section applies to establish, on the balance of probabilities, matters which would otherwise be required to be established by the prosecution beyond reasonable doubt. 110 The position is similar to that which the High Court determined to exist in Hookham v The Queen (1994) 181 CLR 450 where, with respect to s8Y(1) of the Taxation Administration Act 1953 (Cth), the Court was concerned with the formulation: "A person … who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly." 111 In this respect the joint judgment of Deane, Dawson and Gaudron JJ stated at 459: "Section 8Y, in providing that the person is 'punishable accordingly', is not providing for punishment for an offence which was really committed by the corporation and is only 'deemed' to have been committed by that person; it is providing punishment for an offence to which that person is deemed to be a party because of his or her complicity in it." 112 Although the words "and is punishable accordingly" do not appear in terms, the provisions of the defence in s50(a), as originally existing, and (b) and (c) are to similar effect. The Court is concerned with a person who has a level of complicity in the commission of the offence by the corporation. Such complicity arises in a context where persons in a managerial role could have taken steps to ensure that the object of the Act are achieved. 113 Those objects are widely stated: "5(1) The objects of this Act are - (a) to secure the health, safety and welfare of persons at work; (b) to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work; (c) to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs; and …" 114 In addition to general provisions such as that found in s15(1), which is the focus of the present case, many specific matters are identified in the legislation including a long list of matters in s15(2) which constitute contravention by an employer, without prejudice to the generality of s15(1). This list extends to providing or maintaining plant and systems of work; providing information, instruction, training and supervision; maintaining any place or working environment in a condition that is safe and without risk to health. 115 It is also pertinent to note that the duties imposed by the Act are not restricted to a direct employer. They extend, for example, to persons who supply plant for use by persons at work. Section 18(1) provides: "18(1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use." 116 The objects of the Act, and the general nature of the duties imposed by the Act, suggest that Parliament did not intend to give the language of s50(1) a narrow, let alone a technical, meaning. The purposive approach to interpretation required at common law, and now by s33 of the Interpretation Act 1987, suggests that the words "management of the corporation" should not be read down so as to apply only to central management. 117 In my opinion the Claimant has identified no error of law in the reasoning of the Full Bench. 118 The Claimant also asserts that an error of law on the face of the record occurred by reason of the Full Bench's approach to s53 of the OH&S Act. That section is set out above. 119 The Full Bench found that the defences in s53 do not apply to a defendant who is deemed by s50 to have committed an offence under s15 of the OH&S Act on the basis that (at [163]-[167]): · it would be incongruous for s50 to require a contravention by a corporation, deem the same contravention in relation to the natural person, and then permit the re- examination of the availability of s53 defence when its unavailability has already been found in relation to the corporation and deemed in relation to the natural person. · Section 50 already contains defences within it. There would be unnecessary duplication of the defences under s50(1) and s53 if both applied. · Section 50(1) explicitly enumerates two exceptions to the operation of its deeming provision and the use of the word "unless", coupled with absence of any words of generality used to denote a list which is not closed, makes it clear that these two exceptions are the only exceptions. 120 The Claimant submits that this is contrary to the clear terms of s53 which provides "a defence to any proceedings against a person for an offence against this Act". The claimant submits that s53, as well as the s50 defences, have to be reconsidered in the case of a s50 allegation, even though s53 had already been considered in the determination of the liability of the corporation. He submits that the Full Bench's failure to do so is an error of law on the face of the record. 121 In my view, this submission is unsustainable. The Full Bench, notwithstanding its view that s53 could not be relied on by a personal respondent, did in fact make findings on the assumption that it could be. It rejected Mr Foster's case in this respect on the facts. 122 At [167] the Full Bench stated: "Give our findings, which we shall explain shortly, that Mr Foster did not make out the defences under s50(1)(b) or (c), there is no basis, in our opinion to consider that it was not reasonably practicable for the personal respondent to comply with s15(1) of the Act or that the commission of the offence was due to causes over which Mr Foster had no control and against the happening of which it was impracticable for him to make provision". 123 The Full Bench went to expressly state that the s53 defences were not made out. At [177] the Full Bench said: "If it were necessary we would also find, for the same reasons expressed in relation to the corporate respondent that the defence under s53(a) was not made out. There was no plea under s53(b)." 124 In view of the alternative ways in which the Full Bench approached this matter there is no basis for the exercise of the supervisory jurisdiction by the Court.

Conclusion 125 Each summons should be dismissed with costs. 126 MASON P: I agree with Spigelman CJ. 127 HANDLEY JA: I agree with the Chief Justice. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Coal Mining Regulation Act 1982(NSW)

Safety Act 1983(NSW)

Corporation Act 2001(Cth)

CITATION: POWERCOAL PTY LTD & Peter Lamont FOSTER v INDUSTRIAL RELATIONS COMMISSION OF NSW & Rodney Dale MORRISON [2005] NSWCA 345

Fardon v Attorney General (Qld) [2004] HCA 46; 78 ALJR 1519 Harling v Hall (1997) 94 A Crim R 437 Holpitt Pty Ltd v Swaab (1992) 33 FCR 474 Hookham v The Queen (1994) 181 CLR 450 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 King v Natville Liquors Limited [1922] 2 AC 128 Lions v Taylor [1999] WASCA 86 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 Omnicon Video Pty Ltd v Kookaburra Productions Pty Ltd (1995) 13 ACLC 1795 CASES CITED: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Scott v Cawsey (1907) 5 CLR 132 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 Tesco Supermarkets Limited v Mattrass [1972] AC 153 United States v Wiltberger Five Wheat. 76 (1820) Warren v Coombs (1979) 142 CLR 531 Waterside Workers Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 Woolworths Limited v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 Workcover Authority of NSW (Inspector Charles) v Kirk Group Holdings Pty Ltd & Ano (2004) NSWIR Comm 207

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