Rodney Dale Morrison v John Hamilton Milner and Rodney Dale Morrison v Stephen Barry Baldwin. Prosecutions under s 15(1) of the OH&S 1983 by virtue of s 50 of the OH&S Act 1983

Occupational Health and Safety Act 1983 - s 15 - s 50 - December 2000 mining accident - recovery of a continuous miner from under unsupported roof - roof fall during recovery exercise - fatal injuries received by one worker and another seriously injured - mining company placed into external administration - proceedings for breach continued against the mine manager and a director of the mining company - new method of mining introduced - new mining method raises different risks for mining crew - allegation of failure to conduct risk assessment for recovery of continuous miner in new mining method - failure to establish safe work procedure for recovery of continuous miner - failure to provide information and instruction for recovery of continuous miner under new mining method - employees without appropriate seniority and qualification permitted to determine method of recovery - evidence of extensive training in general mining and special training for new method of mining - mining crew instructed to consider all circumstances of stranded continuous miner - use of two types of roof bolters and timber props available - instructions adequate - rescue method within scope of training and ability of crew - breach of s 15 not established

CATCHWORDS: Authority of prosecutor to bring proceedings - Occupational Health and Safety Act 2000 - s 47A - whether prosecutor a person who could be appointed or designated as a mines safety officer under Mines Inspection Act 1901 or Coal Mines Regulation Act 1982 - appointment as mines safety officer governed by provisions of Public Sector Employment and Management Act 2002 - no evidence as to qualifications for appointment as mines safety officer - no evidence as to suitability of prosecutor to be appointed as a mines safety officer - prosecutor relies on presumption of regularity - evidence of appointment - prosecutor able to act in position of mines safety officer - meaning of "designated" - authority to prosecute established despite unsatisfactory evidentiary position

Permanent stay of prosecution - alleged breach of protection conferred by s 60(2) Coal Mines Regulation Act 1982 - directed answers not to be used in evidence - prosecution relies on reports referring to answers given under s 60(2) protection to commence proceedings - expert witness for prosecution reads documents containing protected answers - nature of s 60(2) protection - section confers use protection only - protected answers found not to be used in evidence against defendants - stay of prosecution not warranted - absence of prejudice warranting exclusion of experts' report under s 135, s 136 or s 137 Evidence Act

Coal Mines (General) Regulation 1999 Clause 6 Coal Mines Regulation Act 1982 s 3 Corporations Act 2001 (Cth) LEGISLATION CITED: Evidence Act 1995 ss 135 137 138 Interpretation Act 1987 Mines Inspection Act 1901 s 4 s 137A(1) Occupational Health and Safety Act 2000 s 47(A) s 106(1)(c) Public Sector Employment and Management Act 1988 Pt 2 ss 17(1)

A B Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 and (2005) 145 IR 61 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Australian Securities and Investments Commission v Rich and ors (2005) 53 ACSR 110 DPP v Shirvanian (1988) 44 NSWLR 129 at 133-134 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [61] Hamilton v Oades (1988-1989) 166 CLR 486 Inspector Kilpatrick v Jae My Pty Ltd (2004) 136 IR 148 Inspector McMartin v Newcastle Wallsend Co Pty Ltd [2003] NSWIRComm 393 Jago v The District Court of New South Wales (1989) 168 CLR 23 at 30-31 CASES CITED: M v R (1994) 181 CLR 487 Mann v Carnell (1999) 201 CLR 1 Meng Developments Pty Ltd v Victorian WorkCover Authority and anor (2005) 149 IR 148 Moore-McQuillan v WorkCover Corporation and ors [2005] SAWT 14 R v Brewer (1942) 66 CLR 535 Sorby v The Commonwealth (1983) 152 CLR 281 at 288 per Gibbs CJ The Attorney-General (Queensland) v The Australian Industrial Relations Commission (2002) 213 CLR 485 The Minister for Natural Resources v The New South Wales Aboriginal Land Council and anor (1987) 9 NSWLR 154 WorkCover Authority (Inspector Farrell) v Morrison [2001] NSWIRComm 325 WorkCover Authority (Inspector Patton) v Fletcher Constructions Aust Ltd (2002) 123 IR 121 at [82]

05/11/07, 06/11/07, 07/11/07, 08/11/07, 09/11/07, 12/11/07, 13/11/07, 14/11/07, 15/11/07, 16/11/07, 12/02/08, 19/02/08 HEARING DATES: Written submissions: 26/11/07, 03/12/07, 10/12/07, 21/12/07, 24/12/07, 12/02/08, 26/03/08, 04/04/08, 09/04/08

PROSECUTOR: Mr R Burbidge QC with Mr A Kernick of counsel Solicitors: Crown Solicitors

DEFENDANT: John Hamilton Milner LEGAL REPRESENTATIVES: Mr G Watson SC SOLICITORS: Colin Biggers & Paisley

DEFENDANT: Stephen Barry Baldwin Mr B Docking of counsel SOLICITORS: Bartier Perry

JUDGMENT: 2 TABLE OF CONTENTS PAGE

1. A FATAL MINING ACCIDENT 2
2. BREACHES OF THE OCCUPATIONAL HEALTH AND SAFETY 4 ACT ALLEGED

4. A FURTHER CHALLENGE TO THE PROCEEDINGS: A CLAIM FOR PRIVILEGE 21

5. THE EVIDENCE OF CREW MEMBERS: MINING EXPERIENCE AND TRAINING 41
6. PILLAR EXTRACTION TRAINING CONDUCTED ON 27 - 28 NOVEMBER 2000 49
7. A HISTORY OF ROOF FALLS 51
8. GUIDELINES FOR USE OF REMOTELY CONTROLLED MACHINERY 53
9. THE ACCIDENT 56

10. POST ACCIDENT RECOVERY PROCEDURES AND PRIOR MINE PROCEDURES 61

11. MINE MANAGER'S EVIDENCE AS TO PILLAR TRAINING 65
12. MINE MANAGER'S EVIDENCE - GENERAL ISSUES 74
13. VIEWS EXPRESSED BY THE DEPUTY MINE MANAGER, THE TRAINING CO-ORDINATOR AND THE DISTRICT INSPECTOR 79

19. DELIBERATION 122 INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 14 April 2008

Matter No IRC 860 of 2006 RODNEY DALE MORRISON v JOHN HAMILTON MILNER Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 by virtue of s 50 of the Occupational Health and Safety Act 1983

Matter No IRC 862 of 2006 RODNEY DALE MORRISON v STEPHEN BARRY BALDWIN Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 by virtue of s 50 of the Occupational Health and Safety Act 1983 JUDGMENT [2008] NSWIRComm 77

A FATAL MINING ACCIDENT 1 The Bellambi West Colliery is situated at Picton Road, Wilton near Bulli on the South Coast of New South Wales. In December 2000, Allied Coal Pty Ltd ("the company") operated the mine and employed a number of persons in relation to that mining operation. At that time, Mr John Milner was employed by Allied Coal as Mine Manager at the mine and Mr Stephen Baldwin was a director of the company and described as its managing director. 2 At this time, the company was engaged in pillar extraction coal mining operations. That operation involved the use of a remotely controlled continuous miner described as a substantial machine utilised to mine coal or rock. The use of the continuous miner in this mining process resulted in areas of roof that required support to make it safe. Under this method of operation the crew were to be positioned beneath the supported roof. 3 Prior to December 2000, mining had proceeded using both the longwall and pillar system of extraction. Under this system there was mining out of the roads that formed the grid pattern within which the major extractions of coal were to be taken. In the previous months, significant mining had taken place under this system in 517 and 519 Panels of the mine. Exploratory drilling in 519 Panel identified a geological fault resulting in a curtailing of the area which had been contemplated for longwall mining and also resulting in a decision to seek approval to extract the coal in that panel by a different system known as partial pillar extraction. This system involved the total removal of selected panels. An application to adopt this system was made by the company pursuant to the provisions of s 138 of the Coal Mines Regulation Act 1982 and that application was ultimately granted. A major difference between these systems of mining was that under partial pillar extraction a much wider area of unsupported roof was created. The unsupported roofs were deliberately left to collapse and these areas were known as "goaves". No person was to enter this area of goaf unless the area had been made secure. 4 On the evening of 20 December 2000, a crew was working on the 519 Panel of the mine. This crew comprised Mr Gregory Aspinall, Mr Justin Rowles, Mr James McAlary, Mr Robert Monk, Mr Gavin Pearce, Mr Thomas Fraser and Mr Richard Zgorzeleski. At approximately 9.00 pm on their shift, the remotely controlled continuous miner became immobilised under unsupported roof in 519 Panel being some 15 metres out from supported roof. Members of the crew began to take action to retrieve or "rescue" the immobilised continuous miner by creating a passage to the miner by installing two rows of timber props to support the roof and to allow access to the miner. Wooden props were obtained and the first one or two props were cut to an appropriate size. Mr Aspinall and Mr Rowles became engaged in the task of positioning the first timber prop approximately half a metre into the goaf and just beyond the last line of roof bolting. In the course of setting the first prop against the roof, a section of the roof detached and fell substantially covering Mr Aspinall and Mr Rowles with rock. Mr Aspinall suffered fatal injuries in this accident and Mr Rowles was severely injured and remained in a coma until January 2001.

BREACHES OF THE OCCUPATIONAL HEALTH AND SAFETY ACT ALLEGED 5 The incident was the subject of an investigation conducted under the Coal Mines Regulation Act and was also the subject of a Coronial Inquiry. In February 2006, Mr Morrison, the Director of Mine and Forest Safety Performance, New South Wales Department of Primary Industries and an Inspector appointed under s 47A of the Occupational Health and Safety Act commenced proceedings against Mr Milner and Mr Baldwin alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983 by Allied Coal Pty Ltd and by virtue of that breach Mr Milner being a person concerned with the management of the company and Mr Baldwin being a director of the company, by operation s 50 of the Act, were deemed to have contravened the same provision. 6 In each case, the charge was framed in the following way: The company did FAIL to ensure the health, safety and welfare at work of all the company's employees, in particular, Gregory Aspinall, Justin Rowles, James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski, contrary to s 15(1) of the Occupational Health and Safety Act, 1983 in that the company failed to provide and maintain systems of work that were safe and without risks to health and failed to provide information, instructions and training that was necessary to ensure the health and safety at work of its employees Particulars of the charge: (a) ... (b) The company is a corporation having its registered office at B & W Pty Ltd, 497 Princes Highway, Fairy Meadow in the State of New South Wales. The company was placed under external administration on 31 January 2002 but was not under external administration at any time material to the commission of the offence alleged; (c) On 1 December 2000 at Bellambi West Colliery ("the mine"), the company, being an employer, did contravene s 15(1) of the Occupational Health and Safety Act 1983; (d) The defendant, being a person concerned in the management of the company is deemed to have contravened s 15(1) of the Occupational Health and Safety Act 1983 by virtue of s 50 of the said Act; (e) The company at all material times operated the mine and was in control of the places of work contained therein; (f) The company at all material times was engaged in pillar extraction coal mining operations at the mine; (g) The company at all material times employed a number of personnel, including Gregory Aspinall deceased, Justin Rowles, James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski at the Bellambi West Colliery; (h) As at 20 December 2000 the said personnel were employed as the afternoon shift production crew for the 519 Panel of the mine; (i) During the afternoon shift of 20 December 2000 at the mine at around 9 pm a remotely controlled continuous miner became immobilised under unsupported roof in 519 Panel; (j) As at December 2000 the company had no written or other adequate Safe Work Procedure or instructions in place for the recovery of an immobilised continuous miner from under unsupported roof appropriate to the pillar extraction coal mining operations being undertaken at the mine; (k) The company failed to provide or maintain systems of work that were safe and without risk to health and failed to provide such information, instruction and training as was necessary to ensure the health and safety of its employees in that it: (i) Failed to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; (ii) Failed to establish a Safe Work Procedure for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; (iii) Failed in the context of pillar extraction coal mining operations to provide any, or any adequate, information and instruction to its employees for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations; and (iv) Permitted employees without appropriate seniority and qualifications on 20 December 2000 to determine the methodology for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. (l) As a result of the company's failure the said Gregory Aspinall was placed at risk of injury and suffered fatal injuries, the said Justin Rowles was placed at risk of injury and suffered serious injuries, and the said James McAlary, Robert Monk, Gavin Pearce, Thomas Fraser and Richard Zgorzelski were placed at risk of injury 7 Both defendants entered pleas of not guilty to the charges particularised and at the hearing, the prosecutor made it clear that the essence of the charge were those matters set out in paragraph (k). The company was placed under external administration in January 2002 but was not under external administration at the time of the commission of the alleged offence.

As a consequence of the specialised terminology used in the mining industry that found its way into the evidence in the proceedings, a short glossary of terms is attached as an annexure to this judgment. This glossary was compiled by Professor Galvin and was not the subject of objection raised by any party. AUTHORITY TO PROSECUTE CHALLENGED 8 The legal representatives for Mr Baldwin put the prosecutor on notice that the authority of Inspector Morrison to bring the prosecution would need to be established by the prosecution and was not conceded by Mr Baldwin. Senior Counsel for Mr Milner took the same position and relied upon the submissions made on behalf of Mr Baldwin. 9 In summary, the legislative scheme relevant to the present point is as follows: (a) by s 106(1)(c) of the Occupational Health and Safety Act 2000, proceedings for an offence against the Act may be instituted only, here relevantly, by an Inspector; (b) s 47A of Occupational Health and Safety Act 2000 sub-section 1 provides that the Minister may appoint as an Inspector for the purposes of the Act ... "any person who is, or could be appointed or designated as, an inspector, mine safety officer or investigator under the Coal Mines Regulation Act 1982 or The Mines Inspection Act 1901. Section 137A of the Occupational Health and Safety Act permits the delegation of functions in relation to mines by the Minister to the Director-General of the Department of Mineral Resources and also permits the Director-General to sub-delegate to any authorised person any function delegated to the Director-General by the Minister if the Director-General was so authorised to do so by the Minister; (c) both the Mines Inspection Act 1901 in s 4, and at the relevant time the Coal Mines Regulation Act 1982 in s 5 defined "Mines Safety Officer" as meaning a person appointed as a Mines Safety Officer under Pt 2 of the Public Sector Management Act 1988. No issue appears to arise from the direct operation of these provisions. 10 The prosecutor produced a document from the Crown Solicitor asserting that Mr Morrison at the time of his appointment as an Inspector under s 47(A) of the Occupational Health and Safety Act was a person who could have been appointed or designated as a Mines Safety Officer under the Mines Inspection Act 1901 but had not been appointed as such and therefore there was no document evidencing his appointment. There was evidence of a delegation pursuant to s 137A(1) by the Minister for Mineral Resources to the Director-General of the Department of Primary Industries under s 47A of that Act regarding the appointment of Inspectors in connection with mines. There was also evidence of an authorisation pursuant to s 137A(3) of the Occupational Health and Safety Act by the Minister for Mineral Resources authorising the Director-General of the Department of Primary Industries to sub-delegate the functions of the Minister that had been delegated to the Director-General, including the appointment of Inspectors in connection with mines under s 47A of the Act. That sub-delegation had been granted to the Deputy Director-General, Department of Primary Industries - Mineral Resources. There was evidence that the Director-General of the Department of Primary Industries pursuant to s 137A of the Occupational Health and Safety Act had sub-delegated that function of the appointment of Inspectors in connection with mines to the Deputy Director-General, Department of Primary Industries - Mineral Resources. Finally, the Deputy Director-General of the Department of Primary Industries - Mineral Resources, under sub-delegated authority had appointed Mr Morrison as an Inspector for the purposes of the Occupational Health and Safety Act and had done so on 6 July 2005. The Government Gazette announcing that appointment and a copy of the original appointment were tendered, together with a copy of Mr Morrison's Identification Card certifying his appointment as an Inspector under the Occupational Health and Safety Act, itself issued by the Deputy Director-General of the Department. The prosecution of the defendants had been commenced in late February 2006 by Mr Morrison exercising his authority as an appointed Inspector. 11 The focus of the argument was upon the operation of the Public Sector Employment and Management Act 2002 which, at the relevant time, had repealed the Public Sector Management Act 1988. The relevant provisions of the Public Sector Employment and Management Act , for the purposes of this argument, were as follows: (a) by s 17(1), appointments to vacant positions in a Department were to be made by the appropriate Department Head. By sub-section 2 it did not matter whether the person appointed was or was not already an officer of the Public Service or that the person appointed had previously retired or been removed from the Public Service; (b) under s 19, the Department Head, for the purposes of determining the merit of the persons eligible for appointment to a vacant position, was to have regard to the nature of the duties of the position and the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that were relevant to the performance of the duties. In deciding to appoint a person to a vacant position that had been advertised in accordance with this part of the Act, the appropriate Department Head was to select only a person who had duly applied for appointment to the vacant position and was to appoint from amongst the applicants eligible for appointment, only the person with the greatest merit; (c) under s 20, when a vacant position was advertised in accordance with the Part, the appropriate Department Head could, in connection with the determination of the persons eligible for appointment to the position, create an eligibility list for the position. An eligibility list for a position was a list of eligible applicants (namely the persons who duly applied for appointment to the position and who were eligible for appointment but not selected for appointment) arranged in order of merit, with merit determined by the appropriate Department Head in accordance with s 19(1); 12 In October 2007, Mr Baldwin's solicitors issued a summons for the production of a number of documents directed to the Minerals and Petroleum Division of the Department of Primary Industries. Paragraph 2 of that summons required a copy of any document evidencing whether Rodney Dale Morrison was purportedly appointed or designated as one of the relevant alternatives - an Inspector, Mines Safety Officer or Investigator under the Mines Inspection Act 1901. It was common ground that on the return of the summons no documents were produced in relation to this paragraph. It was clarified that Mr Morrison had not been appointed as a Mine Safety Officer: the prosecutor relied upon the fact that he could have been so appointed in accordance with the provisions of s 47A of the Occupational Health and Safety Act Paragraph 10 of the summons called for a number of documents as at December 2000 that constituted the job description duty statement and the curriculum vitae of a number of nominated persons including the Mines Safety Officer (Electrical Engineering), Mr Bob Kennedy and the Mines Safety Officer position occupied by Mr Frank O'Connor. In relation to those positions, no documents were produced with an indication that documents meeting that description did not exist.

13 In 2000, Mr William Barraclough was an Inspector of Coal Mines based in Wollongong. He held certificates of competency under the Coal Mines Regulation Act sufficient to entitle him to act as a Mine Manger, Under- manager or a Deputy. He had an Honours degree in Mining Engineering and had attended the Bellambi West Mine on several occasions. Following the death of Mr Aspinall, Mr Barraclough had attended the mine and had assisted in the Department's investigation of the incident. In cross-examination, Mr Barraclough said that he had seen a position description for a Mines Safety Officer, Grade 2 but it was of "modern vintage". A pre-requisite or requirement for occupying the position of a Safety Officer, Grade 2 was a "major certificate of competence". While Mr Barraclough knew Mr Morrison he had never seen a copy of his curriculum vitae and was not able to say whether he met the requirements or specifications for appointment as a Mines Safety Officer. Mr Barraclough was not asked whether this qualification for appointment as a Mines Safety Officer was in existence as at December 2000 (the date nominated in the summons for production) nor was he asked to clarify what he meant by his reference to seeing a position description of "modern vintage" for a Grade 2 position. There was no reference to the existence of lower grades of Mines Safety Officer and what, if any, qualifications were required for such a position, particularly in mid-2005.

14 In cross-examination by counsel for Mr Baldwin, Mr Milner said that, prior to the institution of the proceedings for a breach of the Occupational Health and Safety Act, he had seen the position of Mines Safety Officer advertised in the Illawarra Mercury. The advertisement indicated the necessity to meet certain eligibility requirements to be appointed to the position and there was a job description. Mr Milner was not asked when he had seen these positions of Mine Safety Officer advertised nor did he attempt to state what eligibility requirements were laid down in the advertisements, although objections may have been raised to that evidence. The advertisements were not produced or tendered in evidence. On 8 November 2007, solicitors acting for Mr Baldwin had requested the prosecutor to disclose and provide any job description, job criteria, duty statement or eligibility requirements in relation to the position of Mines Safety Officer and any record in relation to Mr Morrison's fitness to hold the position of Mines Safety Officer, including any assessment of Mr Morrison's fitness to hold the position of Mines Safety Officer before Mr Morrison was purportedly appointed as an Inspector under the Occupational Health and Safety Act and/or before the prosecution was initiated against Mr Baldwin. It was common ground that no documents had been produced in relation to this request with the prosecutor confirming that no such documents existed. 15 For Mr Baldwin it was submitted that when Mr Morrison was appointed an Inspector under s 106 of the Occupational Health and Safety Act in July 2005, consideration had to be given to whether Mr Morrison could be appointed as a Mines Safety Officer at the time and in the course of that consideration, the person making the appointment had to have regard to Mr Morrison's set of skills and the criteria for appointment as a Mines Safety Officer pursuant to the merit test as set out in s 19 of the Public Sector Employment and Management Act. It followed that, if no criteria had been addressed and that an analysis to ensure that Mr Morrison met that criteria had not occurred, then his appointment as an Inspector was invalid and he was unable to institute the present proceedings. It was submitted that the onus of proof that Mr Morrison had the relevant authority to prosecute rested with the prosecutor although it was accepted that the standard of proof to be met by the prosecutor was on the balance of probabilities. The prosecutor had failed to discharge that onus because it failed to submit any job criteria in relation to the appointment of Mines Safety Officers or any evidence of Mr Morrison's fitness to meet that criteria and to hold the position of Mines Safety Officer and, in particular, there was no document showing that such an assessment of Mr Morrison's fitness had been undertaken.

16 In each case, the application for order signed by Mr Morrison stated that he was the Director, Mine and Forest Safety Performance of the New South Wales Department of Primary Industries and that he was an Inspector duly appointed under s 47A and empowered under s 106(1)(c) of the Occupational Health and Safety Act to institute the proceedings. There was no evidence as to the requirements and qualifications necessary to be appointed to the position of Director nor was there any evidence of Mr Morrison's qualifications.

17 The prosecutor's submissions focused on the provisions of s 47A of the Occupational Health and Safety Act and the words "could be appointed" a Mines Safety Officer. It was submitted that the provision dealt with eligibility and not qualifications. Mr Morrison clearly could be appointed but even if it was a question of qualifications, the appointment was valid. Mr Morrison had not been appointed as a Mines Safety Officer and therefore there was no reason for him to be considered under the merit process, nor was there any relevance of the provisions dealing with the filling of a vacant position because Mr Morrison was not being appointed to a vacant position. Primarily, the presumption of regularity was relied upon. 18 The issue raised by the defendants requires a close examination of the legislative scheme. Section 47A(1) of the Occupational Health and Safety Act 2000 operates on the basis of the appointment of an Inspector who is, or could have been appointed or designated, as one of three identified positions, with the only relevant position in this case being that of Mines Safety Officer. The reference to a Mines Safety Officer is such a person appointed under the Coal Mines Regulation Act or the Mines Inspection Act 1901. Neither of the Mining Acts lays down mandatory qualifications for appointment as a Mines Safety Officer although certain qualifications are identified for other positions such as Chief Mining Inspector and Inspector. The lack of mandatory qualifications specified by the Mining Acts was readily conceded by the defendants in argument: the focus of their submissions being on the operation of the Public Sector Employment and Management Act. 19 The starting point for the analysis of this scheme is the fact that the legislature apparently took some care in s 47A(1) to specify who may be appointed an Inspector under the Occupational Health and Safety Act 2000 in connection with mining and did so by reference to three nominated positions - that of Inspector, Mines Safety Officer or Investigator, all being positions defined and referred to in the two Mining Acts. It seems to follow that the legislative intention was not simply to clothe the Minister with power to appoint anybody as an Inspector under the Occupational Health and Safety Act in relation to mines: if that had been the intention there would be no need to refer to the positions of Inspector, Mines Safety Officer or Investigator nor would be it be necessary to refer to the two Coal Mining Acts leaving the Minister simply able to appoint any person as an Inspector in relation to mining. The words chosen that direct attention to being appointed or being able to be appointed or designated as one of the three classes of officer under the Mining Acts must be given work to do and strongly suggest that there should only be appointed as an Inspector persons who hold the necessary qualifications and/or experience that would allow them to be appointed or designated as Inspector, Mines Safety Officer or Investigator under the two Mining Acts.

20 The definition of Mines Safety Officer under the two Mining Acts simply refers to a person appointed to that office under Pt 2 of what was then the Public Sector Management Act 1998 and at the relevant time was the Public Sector Employment and Management Act 2002. Section 17(1) of the Public Sector Employment and Management Act 2002 deals with appointments to vacant positions in the Department and those appointments were to be made by the appropriate Department Head. Section 47A of the Occupational Health and Safety Act does not require a person to be appointed as a Mines Safety Officer and a person may be appointed as an Inspector in connection with mining if that person could be appointed or designated a Mines Safety Officer. Section 18 dealing with the advertising of vacancies again has no relevance because there was no relevant vacancy to which Mr Morrison was being appointed. Similarly, s 19 dealing with merit appointment only has effect when those who are eligible for appointment to a vacant office and are in contest for that vacant office are to be ranked in order of merit having regard to the nature of the duties of the position and the abilities, qualification, experience and standard of work performance and personal qualities of those persons. 21 Section 24 of the Public Sector Employment and Management Act has some relevance for the present argument. Under s 24, the appropriate Department Head may appoint to act in a position in a Department that is vacant or where the holder is suspended, sick or absent, a member of the staff of the Department or a member of the staff of another Department. A person while acting in the position under s 24 has all the functions of the holder of the position but clearly enough is not appointed to that vacant office. There is no requirement for a merit selection process or even a requirement that the mandatory qualifications for appointment to the position are held by the person acting in that position. In this sense, a person acting, for example as a Mines Safety Officer, would be designated as a Mines Safety Officer although not necessarily qualified to be ultimately appointed to that position. 22 The inclusion of the term "designated" in s 47A, at first blush, appears to be a somewhat curious provision having regard to the definitions within the two Mining Acts and the operation of public sector legislation. The Oxford English Dictionary defines "designate" to mean to appoint someone to a specified office or post. The Macquarie Dictionary states that "designate" means: to mark or point out, indicate, show, specify; to name, entitle, style; to nominate or select for actual office, purpose etc. appoint, assign; appointed to an office but not yet in possession of it. Having regard to these Dictionary definitions, it seems, at the very least, that a person acting in the position of Mines Safety Officer but not appointed to that position would be a person who was designated as a Mines Safety Officer. The provisions of s 24 of the Public Sector Employment and Management Act would not require a person acting in the position of Mine Safety Manager to hold all or any of the qualifications necessary for appointment to that position.

23 Having regard to the observations made about the terms of s 47A and its focus upon those who are or could be appointed or designated as an Inspector, Mines Safety Officer or Investigator as an Inspector under The Occupational Health and Safety Act it is unsatisfactory and disappointing, to say the least, that no evidence was placed before the Court to indicate the range of experience and/qualifications that were to be considered in the appointment of a Mines Safety Officer. The prosecutor's position was that there were no such documents although there was evidence that there had been newspaper advertisements for the position laying down qualifications and a more recent document representing a statement of duties but that evidence was unsatisfactory and imprecise. If the position is that no qualifications are necessary but relevant mining or other experience is desirable, then that evidence should have been called. It is most unsatisfactory for the Court to be left in the position of having no evidence at all about what may be considered appropriate for appointment as a Mines Safety Officer with the necessary implication that, regardless of background and qualifications, any person may be appointed to such a position. This does not seem consistent with the terms of s 47A nominating three mining positions as the benchmark for appointment as an Inspector under the Occupational Health and Safety Act. In the present case it is known from the Summons and Affidavit in Support of it that Mr Morrison was the Director, Mine and Forest Safety Performance with the New South Wales Department of Primary Industries although there was no evidence of his qualifications and experience, the scope of the duties of the position he occupied and no information as to the combination of experience and qualifications required or desirable for appointment to that position.

24 On the evidence before the Court, it cannot be determined who would necessarily be excluded from appointment as a Mines Safety Officer under the two Mining Acts. As the evidence stands there is no particular area of experience required or desirable in order to be appointed to the position, nor is there any mandatory or desirable set of formal qualifications. There is no evidence of Mr Morrison's qualifications or experience but there seems to be, on the state of the evidence, no reason why he could not have been appointed a Mines Safety Officer. More importantly, it appears that there would be no bar to him being designated to act in the position of a Mines Safety Officer and perform the functions of that position under the provisions of the Public Sector Employment and Management Act.

25 The defendants assert that the prosecutor bears the onus of establishing the authority of Mr Morrison to prosecute and that the onus is the civil standard. The defendants submit that the evidence is not sufficient to discharge that onus but for the reasons outlined above, I am unable to accept that submission. There were times in the submissions for Mr Baldwin, in particular, where the validity of Mr Morrison's appointment as an Inspector under the Occupational Health and Safety Act was raised but the validity of that appointment raises different questions that are not confined to whether, on the balance of probabilities, the evidence establishes that Mr Morrison could have been appointed or designated as a Mines Safety Officer. Once the issue of validity of the appointment is directly put into play by the defendants, a very different question arises including issues as to the wide nature of the privative clause about such issues found in s 22 of the Public Sector Employment and Management Act. Having been assured by the defendants that the issue raised is the sufficiency of evidence to establish Mr Morrison's ability to be appointed or designated as a Mines Safety Officer, the issue of validity and the operation of s 22 of the Public Sector Employment and Management Act does not arise for further consideration.

26 In the course of submissions for the prosecutor, it was apparent that an argument in the forefront of his case was reliance upon the presumption of regularity. Some consideration has been given to the role of this presumption by the Supreme Court of Victoria in Meng Developments Pty Ltd v Victorian WorkCover Authority and anor (2005) 149 IR 148. In the course of dealing with a challenge to the authority of an Inspector bringing proceedings under the Victorian Occupational Health and Safety Legislation, Williams J referred to the judgment of the Court of Appeal in A B Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 and (2005) 145 IR 61. In the Court of Appeal, Nettle JA said in relation to the presumption of regularity: Turning then to the presumption of regularity, it is trite that courts will not presume the existence of facts which are central to an offence ... It is also clear that proof of authorisation is essential to the validity of a prosecution for an offence. R v Waller [1910] 1 KB 364 at 366; R v Bates [1911] 1 KB 964 at 965. But it is not an element of the offence. Thomson v The Queen (1989) 169 CLR 1 at 12 - 13 and therefore, so long as a defendant does not object that a prosecutor's authorisation has not been proved, the authorisation will be presumed in accordance with the maxim ' omnia praesumitur rite et solemniter esse acta'. R v Metz (1915) 31 TLR 401; R v Waller [1910] 1 KB at 36; Berwin v Donohue (1915) 21 CLR 1 at 28-29; Palos Verde Estates Pty Ltd v Carbon (1991) 6 WAR 223 at 227. Needless to say, if objection is taken, it will be necessary for the prosecutor to prove the authorisation. But because the authorisation is not an element of the offence, the standard of proof of the authorisation is only on the balance of probabilities. Thompson v The Queen (1989) 168 CLR 1 at 12-13. In the result, an authorisation may ordinarily be proved by production of an authority in writing and oral testimony as to the nature and provenance of the document. MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 at 366-367. 27 Having regard to the judgments in AB Oxford Coal Storage and in Meng it will not be sufficient for the prosecutor to simply rely upon the presumption of regularity when the authority of the prosecutor is not conceded and the prosecutor is put to proof of the authority to prosecute. Those cases appear to proceed on the basis that so much was decided by the High Court in Thompson v The Queen, a case where, in criminal proceedings, a question arose as to the locality of the offence and where the defendant had been charged under ACT law. The separate judgments of the Court canvass how this issue had been dealt with in other jurisdictions and whether or not locality was a necessary element of the offence. In some jurisdictions the courts operated on the basis of a presumption that the offence had been committed within jurisdiction but ultimately the case determined that while locality had to be proved by the prosecutor in order for the court to proceed to deal with the charge, it was not an element of the offence and the issue of locality could be proved on the balance of probabilities and was not required to be proved to the criminal standard. In terms, the majority decision of the court does not deal with the operation of the presumption of regularity but deals with the issue of the standard of proof required to establish a matter that is not an element of the criminal conduct charged. It might be said that it is implicit in that approach that ultimately the jurisdiction has to be shown by the prosecutor to exist on the balance of probabilities, but that approach does not necessarily operate to exclude the operation of the presumption of regularity with the defendant then providing such material as may call into question the jurisdiction of the Court leaving the prosecution, in the normal course, to call evidence establishing jurisdiction on the balance of probabilities.

28 In Moore-McQuillan v WorkCover Corporation and ors,[2005] SAWCT 14 a matter heard before the Workers Compensation Tribunal of South Australia by Auxiliary Justice T Olsson, the issue of the presumption of regularity arose concerning a certificate issued by the Registrar of motor vehicles. Objection was taken on the basis that legislation governing the issue of the certificate required the prior approval of the subject of that information and there was no evidence that consent had been obtained, nor was there evidence of guidelines for the issue of the certificate as approved by the Minister as contemplated by the legislation. After putting to one side the privacy aspects of the argument, his Honour stated that at the end of the day the court was confronted with documents that on their face purported to be certified copies of register entries regularly issued under the provisions of the Motor Vehicles Act. His Honour then proceeded to state: 15. In the course of the Full Court judgments in Independent Holdings Ltd and ors v City of Adelaide Planning Commission & ors (1994) 63 SASR 318 at 325, the Chief Justice concurred in a view that I had expressed at first instance as the trial judge (see (1994) 176 LSJS 449 at 469). This was to the effect that the presumption of regularity in relation to official acts imposes a heavier onus on anyone asserting that a public official did not properly discharge his statutory duties. They must overcome the well-established presumption that he did. (Attorney-General (NT) v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, particularly at 164 et seq; Williams v McCarthy (1979) 21 SASR 529 at 535. 16. In the instant case, the applicant has done no more than merely point to s 139E(1). He has not eliminated the possibility that, even under that section, the actions of the Registrar could have been lawful and regular (eg by reason of the provisions of sub-section (1)(f)). 17. The presumption has not been displaced. The objection necessarily fails. 29 In The Minister for Natural Resources v The New South Wales Aboriginal Land Council and anor (1987) 9 NSWLR 154, the New South Wales Court of Appeal held that a presumption of regularity applied to prove that the Secretary of the Western Lands Commission, who executed the grant of the relevant permissive occupancy, had been duly delegated to do so by the Minister under relevant legislation. In that case at first instance, a document containing the permissive occupancy had been admitted into evidence without objection although the point was raised by counsel as to whether the Secretary had authority to grant the occupancy. The Minister did not prove the instrument of delegation to the Secretary but relied on the maxim concerning the presumption of regularity but the Judge at first instance rejected that approach. 30 On appeal, the Court of Appeal held that the presumption was applicable. After considering the process under the relevant legislation, McHugh JA stated: The Secretary of the Western Lands Commission was the holder of one of the prescribed offices. The Secretary had purported to grant the permissive occupancy to Mr Mooring. So the only question of the Secretary's authority which was outstanding was whether, in purporting to grant the occupancy, the Secretary was acting pursuant to a delegation by the Minister. In my opinion, this was a classic case of the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475): ... one of the fundamental maxims of the law is the maximum 'omnia praesumuntur rite esse acta'. It has many applications ... the wheels of business will not go smoothly around unless it may be assumed that that is in order which appears to be in order. The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M'gahey v Alston (1836) 2 MNW 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 435 at 548; Hardess v Beaumont [1952] VLR 315 at 318-319 and a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 483. The maxim was applied in a statutory context in this court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of 'parking area rates' on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the court, applied the maxim. His Honour said (at 46-47): ... as the case is one where the opinion required by s 121(1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the pre-requisite opinion having been formed ... . In applying the presumption, I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such a power by a body or group which acts by way of resolution, or vote . 31 In R v Brewer (1942) 66 CLR 535, the High Court was called upon to determine whether a person had been appointed as an assistant purchasing officer in the Australian Defence Canteens Service and therefore a person serving "under the Crown". In the course of dealing with this issue, Latham CJ and McTiernan J stated (at 548): Acting in a public office is evidence of due appointment to that office, not only in civil proceedings but also in a criminal case (R v Lawson (1905) 1 KB 541). The presumption that his appointment was duly made is not met by any rebutting evidence: Cf Jenkin v Attorney General of Victoria (1921) VLR 79 at 88). The conclusion, therefore, is that Ritchie was appointed to serve in the Canteens Service and that his service therein was service under the Crown. 32 The line of authority referred to in the Moore-McQuillan and Aboriginal Land Council cases does not appear to have been considered in either Oxford Cold Storage Co or in Meng. On the material before the Court it is unnecessary to attempt to resolve this issue. The prosecutor has produced evidence of the necessary delegation and the Gazette announcing his appointment as an Inspector while the defendants have produced no evidence calling into question Mr Morrison's eligibility to be appointed or designated a Mine Safety Officer. This position is very close to that dealt with in Brewer. On either approach, the prosecutor has established the authority of Mr Morrison to prosecute the defendants. The defendants' propositions are not strengthened by pointing to previous occasions when Mr Morrison's authority to prosecute has been challenged or successfully challenged: those cases involved considerations, quite different to the present challenge and its focus on Mr Morrison's appointment as an Inspector for the purposes of the Occupational Health and Safety Act. A FURTHER CHALLENGE TO THE PROCEEDINGS: A CLAIM FOR "PRIVILEGE" 33 Both defendants filed Notices of Motion seeking a permanent stay of the prosecutions. In each case, the central argument was that, in commencing the proceedings and as disclosed by the Affidavit in Support of the Application for Orders, Mr Morrison as prosector had used answers given by Mr Milner and Mr Baldwin that had the protection of s 60 of the Coal Mines Regulation Act and contrary to that provision and the protections available under that section, Mr Morrison had impermissibly relied on answers given by both defendants to commence and maintain the prosecution proceedings. It was submitted that, in part, in the absence of answers given under the protection of s 60, there was insufficient evidence to sustain the charges and the prosecutions should be dismissed or alternatively, stayed. In addition to this relief, but on similar grounds, Mr Baldwin also sought, in the alternative, that Professor Galvin's final report that had been tendered as an exhibit in the proceedings be now excluded pursuant to the combined provisions of ss 135, 137 and/or 138 of the Evidence Act 1995. 34 In support of these propositions, the defendants stated that Mr Milner and Mr Baldwin had each provided information and answered questions in interviews conducted by an Investigator appointed under the Coal Mining Regulation Act, Mr Garth Sheehy, assisted by Mr Bill Barraclough, an Inspector of Coal Mines. In conducting the investigation of this accident involving the death of Mr Aspinall and the serious injuries sustained by Mr Rowles, both Mr Milner and Mr Baldwin were informed by Mr Sheehy that he was a designated investigator for the purposes of the Act and that under s 60 of the Act, he required them to answer his questions. Mr Sheehy acknowledged that any answers given would not be admissible in evidence against them in any proceedings (except for proceedings for knowingly or recklessly making a false statement). It was stated that at no time had either defendants waived the protection of s 60 nor had they agreed that any answer they had given or information they had provided to the Investigator under compulsion of the Act could be used in the proceedings. 35 On 21 February 2006, the prosecutor instituted proceedings in the Industrial Court by filing and relying upon an application for order and an Affidavit in Support of the application for order. In the Affidavit in Support, Mr Morrison stated that following the accident at the Bellambi West Mine on 20 December 2000, an investigation was undertaken pursuant to Division 6, Pt 4 of the Coal Mines Regulation Act. A report was prepared dated 30 September 2002 by Garth Sheehy, Investigator, assisted by William Barraclough, Inspector of Coal Mines. Having recounted these matters, Mr Morrison then stated: I have read the said report and believe its contents to be true. In making this affidavit I have relied on the information contained in the said report. I have also read a report of Dr J M Galvin dated 22 March 2005 and believe the contents to be true. I have additionally relied on the information contained therein. 36 Extracts from Mr Sheehy's report were tendered for the purpose of this challenge. Those extracts showed, by reference to footnotes, that the source of information contained within the report was either the interview with Mr Baldwin, the interview with Mr Milner or a letter providing information forwarded by the General Mine Manager, Mr Milner, in answer to a written request from the Investigator or Mr Barraclough assisting the Investigator. 37 Counsel for Mr Baldwin highlighted the extracts from the Investigator's report to demonstrate the source of the information contained in that report. Those sections so highlighted were as follows: (a) the employer for Mr Aspinall and Mr Rowles was Allied Coal Pty Ltd and the source for that information was group certificates and Mr Baldwin's interview; (b) the mining lease was held by Sandwork Pty Ltd and Allied Coal Pty Ltd was the owner of the mine for the purposes of the Act. The managing director of Allied Coal was Mr Baldwin. Sandwork Pty Ltd and Allied Coal Pty Ltd were both 100 per cent subsidiaries of Allied Coal Holding Pty Ltd. The source for all this information was Mr Baldwin's interview; (c) the Bellambi West Colliery Cut and Flit Safe Job Procedures contained a written procedure for recovering an inoperative continuous miner from under unsupported roof. The procedure required the use of a Fletcher mobile bolter equipped with temporary roof support followed by hand bolting. ... The Mine Manager modified the written cut and flit recovery procedure to incorporate the use of props for roof support depending on the location of the machine and the prevailing circumstances. The modifications were discussed with the panel crews in toolbox talks and safety meetings held in June and October 2000. ... the Mine Manager indicated that instructions were given verbally with the aid of a whiteboard to explain the procedure relating to the use of timber props to support roof when accessing a continuous miner when immobilised under unsupported roof. The source for this information was the General Mine Manager's letter of January 2001 and Mr Milner's interview with the investigators. (d) the Mine Manager when asked his opinion on what went wrong replied, 'They didn't sound the roof as they had been - as was outlined in many toolbox talks. If they sounded the roof the incident would never have occurred'. The Mine Manger stated in a letter to the Department that sounding the roof was discussed in conjunction with scaling the roof and the presence of laminates and stone plys when dealing with the support of roof in toolbox talks carried out on 29 May 2000. The source of that information was Mr Milner's interview and Mr Milner's General Mine Manager letter of January 2001. (e) the mine had in place a management structure that effectively separated the management of statutory and safety compliance from production and management issues. The mine had openly operated with this management structure prior to its introduction into the pillar extraction operation. The source for this information was Mr Baldwin's interview and the interview with Mr Pearce. (f) the Managing Director indicated that the purpose of separating the operational duties from the Deputy was to allow the Deputy to focus on the carrying out of his statutory duties as a means of promoting health and safety. The source of that information was Mr Baldwin's interview. (g) the Mine Manager expressed the view during interview that the management's structure was able to incorporate the positions of project manager and co-ordinator because of the legislative changes made by the insertion of s 33(1) into the Coal Mines Regulations Act 1982. The Mine Manager expected the crew to work as a team to resolve production problems that arose during the course of the shift. There being no recovery procedures in the pillar extraction operating proceedings the crew proceeded to implement the recovery procedures as explained to them by the Mine Manager in toolbox talks in June and October 2000. The source for this information was Mr Milner's interview and Mr Milner's General Mine Manager's letter of January 2001. (h) the 14CM15 remote control continuous miner was hired by Allied Coal Pty Ltd from Allied Plant Services Pty Ltd. The source of this information was Mr Baldwin's interview and Mr Milner's interview. (i) in relation to the miner, service was engaged on a fee-for-service arrangement. The source of this information was Mr Milner's interview. 38 At the relevant time, the provisions of s 60 of the Coal Mines Regulation Act were as follows: (1) For the purpose of any inspection, examination or inquiry referred to in s 59, an inspector or mine safety officer shall have power to do all or any of the following things: (a) subject to subsection (2), to require any person: (i) whom the inspector or mine safety officer finds at a mine or other workplace entered under section 59(1)(a)(ii) or whom the inspector or mine safety officer had reasonable cause to believe to be, or within the preceding two months to have been, employed at the mine or workplace and, (ii) who has been informed of the provisions of subsection (2,) to answer forthwith (in the absence of persons, other than a person nominated to be present by the person to be questioned and any persons whom the inspector or mine safety officer may allow to be present) such questions as the inspector or mines safety officer thinks fit to ask, (b) to take samples of any articles or substance found at a mine or other workplace entered under subsection 59(1)(a)(ii) or of the atmosphere in a mine, (c) subject to subsection (3) and (4), to take possession of any machinery, apparatus or other article at a mine or other workplace entered under s 59(1)(a)(ii) which appears to the inspector or mine safety officer to have caused, or to be likely to cause, danger to safety or health of any person employed at a mine and cause it to be dismantled, removed or subjected to any process or test, notwithstanding that it is thereby damaged or destroyed, (d) to require the production of, and to inspect: (i) any registers, books, plans or other documents which by virtue of this Act and the Regulations are required to be kept, and (ii) any other documents, being documents which are in the possession or under the control of the owner or the manager of the mine or the employer at a workplace entered under s 59(1)(a)(ii) are relevant for the purposes of such an examination or inquiry, (e) to require the manager of the mine to mark or cause to be marked on any plan of workings in the mine produced in compliance with a requirement imposed under paragraph (d) such information as the inspector or mine safety officer considers relevant to such an examination or inquiry, (f) to require any person having responsibilities under this Act in relation to a mine or other workplace entered under s 59(1)(a)(ii) to give the inspector or mine safety officer such facilities and assistance, with respect to any matters or things to which the responsibility of that persons extend, as are necessary for the purpose of enabling the inspector or mine safety officer to exercise any of the powers conferred on an inspector or mine safety officer by s 59 and this section. (2) An answer given by a person in pursuance of a requirement imposed under sub-section (1)(a) shall not be admissible in evidence against the person in any proceedings except proceedings for an offence under s 62(e). 39 It was submitted for Mr Milner that the information provided by him to the Investigator was then reproduced in a series of reports of Professor Galvin prepared between June 2003 and March 2005. Professor Galvin produced the final report in late March 2005 relying on a series of assumptions of fact, some of which were drawn from answers to the Investigator's questions provided by Mr Milner. It was submitted that the prosecutor's application for an order of this Court requiring Mr Milner to appear to answer charges relied principally on the Sheehy and Galvin reports and thus the answers provided by Mr Milner to the Investigator. It was then submitted that there could be no dispute that the prosecutor had relied on the answers provided by Mr Milner to the Investigator as a basis for commencing these proceedings: that was specifically noted in the Affidavit supporting the Application for Order in acknowledging the prosecutor's reliance on the Sheehy and Galvin reports. 40 The proposition, however, is put too widely. In the affidavit, the prosecutor said he had read the two reports and had relied on the information contained within them. In the application for order, the prosecutor also states that a Coronial Inquest was held and that it appeared from the Coronial proceedings and the Coroner's Report delivered in March 2004 that the offence alleged had been committed. The prosecutor does not state which part of the reports and the Coronial Inquiry were relied upon to support the charges as particularised. In the proceedings, the Coroner's Report was not tendered. Further, there are some documents in the bundle of documents tendered by the prosecutor without objection that prove a number of the matters dealt with in the interviews with Mr Milner and Mr Baldwin, namely, the operator of the mine, the employer, the employment of the crew including Mr Aspinall and Mr Rowles. Indeed, the defendants gave evidence as to the positions they held at the relevant time and there was cross-examination of witnesses as to the cut and flit safe job procedures in relation to recovery of an inoperative continuous miner, the modification to those procedures, toolbox talks in October 2000 and there was cross-examination about the workplace structure of separating management and safety compliance from production issues. Mr Milner, as part of his defence, gave evidence about the toolbox meetings and what the crew had been instructed about in terms of roof support when rescuing a miner. In the absence of any serious analysis of the prejudice to either of the defendants, let alone their clear waiver in relation to these matters by giving evidence in the proceedings and not objecting to other evidence being tendered, it is difficult to fathom how a fundamental issue of a breach of the statutory protection arises in a way that would warrant the unusual steps of permanently staying the proceedings. 41 Mr Milner's submission, firstly, argues that s 60(2) provides a statutory protection for answers compulsorily provided by a witness in response to an Investigator's questions under s 60(1)(a) and is a statutory manifestation of the privilege against self-incrimination that has been an entrenched rule of the common law since the 17th Century (for example, see Sorby v The Commonwealth (1983) 152 CLR 281 at 288 per Gibbs CJ). So much may be accepted as a broad proposition. Further, it was submitted that the privilege against self-incrimination provides protection not only against direct self-incrimination under a compulsory process but also protects from making disclosures that might lead to incrimination or to the discovery of real evidence of an incriminating character (see Sorby at 310 per Mason, Wilson and Dawson JJ). 42 Section 60(2) was characterised as a "use indemnity" meaning it precluded compelled answers given by a witness from being admitted in evidence in any civil or criminal proceedings. In the present case, the use by the prosecutor of Mr Milner's compelled answers was direct in as much as they are referred to throughout Mr Sheehy's report and indirect in as much as they form a basis for Professor Galvin's conclusion. It was submitted that it was apparent from the two reports that the evidence of the Mine Manager, Mr Milner, at the time of the accident, "was intrinsic and indispensable to the Investigator's findings of fact and to the conclusions of Professor Galvin". There is no way their reports could be admitted into evidence without the answers of Mr Milner being used against him. Those reports and any other recording of Mr Milner's answers given to the Investigator enlivened the s 60(2) protection against self-incrimination and thus were inadmissible against Mr Milner at trial. 43 It was also submitted for Mr Milner that s 60(2) should operate to preclude the prosecution from using evidence indirectly obtained by the investigator in the answers given by Mr Milner. The three types of indemnity recognised as existing in the United States had been described by Kirby P in Ganin v NSW Crime Commission a (1993) 32 NSWLR 423. The existence of derivative use indemnity had been recognised in Australia and protected witnesses from indirect self-incrimination where answers were given under compulsion (see Ganin per Kirby P at 432). It was further noted that in Sorby, Gibbs CJ at 294 stated: ... If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission.

Having regard to the authorities, s 60(2) was to be properly construed as providing a derivative use indemnity precluding the use of information gathered by the investigator in response to Mr Milner's answers to questions. 44 Ultimately, it was submitted that the prosecution could not proceed without the answers provided by Mr Milner under compulsion. Thus, there was insufficient evidence for the Court to be satisfied that Mr Milner acted in contravention of s 15 of the 1983 Act, a finding of guilt in the circumstances of this case would not be open to the Court having regard to the remaining evidence (see M v R (1994) 181 CLR 487). 45 In the submissions for Mr Baldwin, it was stated that Mr Morrison's Affidavit in Support for the Application for Order on three separate occasions used material in contravention of the protection or use immunity provided by s 60 of the Act. Firstly, Mr Morrison relied on information contained in the investigation report and therefore Mr Baldwin's interview, Mr Milner's information and answers in his seven page letter and Mr Milner's interview. Secondly, the affidavit relied on the information contained in Professor Galvin's report dated March 2005 and therefore relied on Mr Milner's information and answers in his letter and Mr Milner's interview. Paragraph 6 of the affidavit relied on Mr Milner's information and answers in his letter and also relied on his interview. 46 In dealing with this attack on the prosecution, it is a relevant consideration that the affidavit of Mr Morrison was not read in a formal sense in any type of proceeding before the Court issued the order. It is well established that the Court is not engaged in the task of reaching a prima facie conclusion that an offence had been committed before an order issues requiring the attendance of the defendant before the Court to answer the charge. In many respects, the process is more administrative than judicial although where it can only be undertaken by a judicial officer, it might well be assumed that there is an examination to ascertain whether the matters raised are capable of sustaining a charge and do not have some obvious or fundamental flaw: the judicial officer so engaged, however, is engaged on a relatively low level examination and it is important that the role of the judicial officer does not become enmeshed with the role of the prosecutor such that possible difficulties with the prosecution are to be remedied at the instigation of the judicial officer. Once the order is made, it is rare for the prosecutor's affidavit to feature in the trial and in accordance with that experience the prosecution case did not rely on Mr Morrison's affidavit nor was it formally read (although the affidavit did come into evidence only for the purposes of dealing with the issue about authority to prosecute). While Mr Morrison's affidavit indicated that he had read and relied upon Mr Sheehy's report and Professor Galvin's report, (thus, the suggestion arises that he had the opportunity to therefore consider the protected interviews given by Mr Baldwin and Mr Milner), Mr Morrison also stated that he had read and relied upon the Coroner's report. There is no evidence as to which parts of these reports Mr Morrison relied on in commencing these proceedings. 47 In the submissions there was some discussion of the type of protection afforded by s 60 and whether it was a matter of use indemnity or extended to derivative use. In the Gretley proceedings (reported as Inspector McMartin v Newcastle Wallsend Co Pty Ltd [2003] NSWIRComm 393), Staunton J accepted that s 60 provided, at least, user protection. Applying that approach, the interview given in the present case and the answers compelled to be given to questions asked by investigators could not be used in evidence against Mr Milner and Mr Baldwin. Close attention has to be paid to the nature of statutory provisions that abrogate the common law right to decline to answer questions that might incriminate that person. In terms, s 60 states that the answers given following a direction by an Inspector or Investigator shall not be admissible in evidence against the person in any proceedings (except for an offence under s 62(e) which is of no relevance for the purposes of the present argument). Even if Mr Morrison, as prosecutor, used the answers supplied to Mr Sheehy by Mr Milner and Mr Baldwin to assist in deciding to commence the proceedings, that use did not breach the use indemnity aspect of s 60: in no sense had those answers been used in evidence against them and in terms, those answers are not referred to in his affidavit nor was the affidavit read at the trial. Further, answers given by Mr Milner under the protection of s 60(2) are not part of Mr Baldwin's protection under s 60(2): documents produced under s 60(1)(d) by Mr Milner have no protection under s 60(2) which applies only to answers given pursuant to a s 60(1)(a) direction. 48 The defendants' argument then turns upon the categorisation of s 60 as a derivative indemnity such that answers compelled to be given by Mr Milner and Mr Baldwin may have led to a line of enquiry that facilitated their prosecution for breach of the Occupational Health and Safety Act. The High Court decision in Hamilton v Oades (1988-1989) 166 CLR 486 indicates that there needs to be an analysis of the statutory provision which abrogates the common law privilege against self-incrimination and that the terms of that statutory provision will indicate the extent of the abrogation of the privilege. In Hamilton v Oades, Mason CJ, at 496, stated: Of course the section gives no protection to the witness against the use in criminal proceedings of derivative evidence, i.e, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative (see Sorby v The Commonwealth (1983) 152 CLR 312). But in any case, by enacting section 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed. 49 Hamilton v Oades arose in the context of the operation of s 541 of the Companies (New South Wales) Code empowering the Supreme Court to order a director of a company to be examined on any matters relating to the affairs of the company: during such an examination the person was not excused from answering a question on the grounds that the answer may tend to incriminate him but where the person made a claim for privilege before answering the question, and the answers might tend to incriminate him, the answer was not admissible in evidence against him in criminal proceedings. In the course of the judgements, reference was made to the purpose of such a section as being to create a system of discovery for the purpose of bringing charges in which defences may be disclosed and the importance of the investigation being conducted under that regime was emphasised. Similar considerations apply in relation to investigations carried out under the Coal Mines Regulation Act and its successors. 50 On this approach, s 60 does not extend the protection given to those answers from use in any investigation or inquiry as to whether an offence has been committed and in particular an offence against the Occupational Health and Safety Act. This is not surprising when the nature of the Coal Mines Regulation Act is considered. That Act is a comprehensive charter for the licensing of mines and people in mines in circumstances where the safety of working in mines is paramount. There are numerous provisions allowing for investigations, inquiries and reports and for determinations to be made as to the causes of mine accidents and injuries sustained during mining operations: those steps may be taken prior to the commencement of proceedings for a breach of the Occupational Health and Safety Act. In that context it is inconceivable that the legislature intended that answers required of persons under s 60 would not be used in an investigation for the purposes of ascertaining whether a breach of the Occupational Health and Safety Act may have occurred and in prosecuting any such breach thought to have occurred - a contrary operation would be likely to render the investigations pointless except against the corporation. The only protection provided by s 60 is the protection to the individual and neither Mr Milner nor Mr Baldwin have had their answers tendered against them in these proceedings. Section 60 provides user indemnity but does not extend to provide derivative indemnity. The decision of Staunton J in McMartin was considered in the Equity Division by Austin J in Australian Securities and Investments Commission v Rich and ors (2005) 53 ACSR 110. There was no suggestion in that judgment that her Honour's categorisation of s 60(2) of the Coal Mines Regulation Act was erroneous. 51 At this point it is appropriate to make some observations about the operation of s 15 of the Occupational Health and Safety Act 1983. No prosecution has ultimately been pursued against the corporate operator of the mine because it has been wound-up and deregistered. Nevertheless, the prosecutor is required to demonstrate a breach of s 15 by the corporation and when that breach is established, and only then, by operation of s 50, will a director or person involved in the management of the mine be deemed to be guilty of the same offence. This approach brings about a curious result. The corporation does not have the benefit of the privilege against self-incrimination. All of the documents produced by the Mine Manager and other authorised officers can be used against the corporation to make out a breach of s 15 and that includes the interviews given by Mr Milner and Mr Baldwin. Once the offence is proved, then Mr Milner and Mr Baldwin are deemed to have committed the same offence if they meet the description of being a director or person involved in the management of the mine. On this approach, their privilege against self-incrimination is effectively abrogated and is ineffectual. It seems to be no answer to this difficulty that their interviews would only be admitted as evidence against the corporation but not as evidence against the individuals because once the corporation is found guilty, the individuals are deemed to be guilty of the same offence. On the other hand, it would be an odd result, to say the least, if the privilege against self-incrimination enjoyed by individuals in such prosecutions, to make it effective, led to their answers not being admissible against the corporation when the corporation has no privilege against self-incrimination. This issue was not raised by the defendants and in the absence of detailed and considered submissions in this matter, requires no further consideration. 52 A further issue that deserves some comment is the fact that, by the time the prosecutions were commenced, the Coal Mines Regulation Act 1982 had been repealed and the new statutory provisions found in the Mines Act 2002 did not contain the equivalent of s 60. Thus, when Mr Morrison commenced the prosecutions there was no continuing statutory protection for the answers given to the investigator by Mr Milner and Mr Baldwin. The defendants argue that the operation of the Interpretation Act 1987 would preserve the rights granted by s 60 although the decision of the High Court in The Attorney-General (Queensland) v The Australian Industrial Relations Commission (2002) 213 CLR 485 suggests that it is necessary to search for the statutory intention and here, the removal of s 60 and the failure to provide for any transitional provisions to continue the s 60 protection might strongly suggest that the Parliament intended that protection to be no longer available. The better view is that, notwithstanding this curious approach by the legislature, by way of an analogous approach, the longstanding rule of construction should apply, namely, that very clear words of statutory intention need to be demonstrated in order to remove or abolish any protection of the common law or any common law rights. It might be thought that the failure to re-enact s 60 and the absence of any provisions to ensure the continuance of the privilege and protection already granted under s 60 by themselves, although raising questions, should not be sufficient to remove that protection. 53 An issue then arises whether, by giving evidence in the proceedings, Mr Milner and Mr Baldwin have waived their privilege under s 60. At the trial, both Mr Milner and Mr Baldwin gave evidence and dealt with the matters contained in their answers to the Investigator which are said to be protected by s 60. In addition, cross-examination of other witnesses established the nature of the mining operator's safety rules for the retrieval of a stranded continuous miner under the cut and flit mining operation and how those rules had been amended orally so that the use of a Fletcher bolter, a hand bolter and timber props were all to be considered in the provision of adequate roof support to allow access to the stranded miner for the purposes of its retrieval. By that process, all of that material was before the Court and none of it relied upon any protected answer given by Mr Baldwin or Mr Milner. An analysis of the matters highlighted by Mr Baldwin as contained within the Sheehy report as having their origin in the two interviews indicates that, apart from formal matters such as the ownership of the mine and the identification of certain officers (which were not in contest in the prosecution and were available to be proved by other means), the only issues of significance were those dealing with the existing procedure under the cut and flit operation for the retrieval of the stranded miner and how that method had been orally modified before the partial pillar extraction method was introduced from early December 2000. Indeed, each of the steps of establishing a safe method of retrieval under the cut and flit operation, the oral amendment of that system, the training of the crew for the purposes of partial pillar extraction and the availability of the Fletcher bolter, the hand bolter and timber for the purposes of roof support in the course of retrieval of a stranded miner were all part of the defence case that no offence had been committed or alternatively, that all reasonable steps had been taken to address the safety of the retrieval task under the new method of operation. The concentration of effort on this aspect of the case is therefore difficult to understand. 54 The protection provided by s 60(2) as with the general protection against self-incrimination is capable of being waived (see the discussion in relation to s 128 of the Evidence Act in "Uniform Evidence Law", 7th ed. Odgers, Thomson Law Book Co). In dealing with the loss of the protection, it is relevant to consider common law principles as generally relating to the waiver of privilege. A discussion of those principles frequently commences with a consideration of the judgment of the High Court in Attorney-General (NT) v Maurice (1986) 161 CLR 475. Although dealing with legal professional privilege, Gibbs CJ (at 481) dealt with some general aspects of waiver: There was of course no express waiver in the present case and there is nothing to suggest that the claimant had any actual intention to waive privilege in the source document. The principle applicable in these circumstances seems to me to be well stated in Wigmore, op. cit., par 2327. In deciding it, regard must be had to the double elements that are predicated in every waiver, ie, not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon that alone was to control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or disclose, but after a certain point his election must remain final. The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a wavier should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus, it has been held that the privilege in respect of a document is not waived by the mere reference to the document in pleadings ... or in an affidavit ... , although the position will be different if the document is reproduced in full in the pleadings or affidavit ... these cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of material used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they have been used in that way. 55 In Mann v Carnell (1999) 201 CLR 1, in a joint judgment four members of the Court referred to waiver of privilege at common law and noted that waiver could be express or implied. Disputes regarding implied waiver usually arose from a need to decide whether particular conduct was inconsistent with the maintenance of the confidentiality which the privilege was intended to protect. The joint judgment continued: When an affirmative answer is given to such question, it is sometimes said that waiver is 'imputed by operation of law' (eg Goldberg v Ng (1995) 185 CLR 83 at 95). This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon her privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. [at 29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ). 56 Having regard to these principles, there has been a waiver of the protection provided by s 60(2) by Mr Milner and Mr Baldwin giving oral evidence about the very matters which were the subject of the protection: their intention not to waive their privilege and their desire to maintain it are not reconcilable with their actions. If the only source of the information relied upon by Mr Morrison (which is not accepted) were answers provided under the statutory protection by Mr Milner and Mr Baldwin, their waiver of that protection brings about the type of inconsistency that leads to the conclusion that it would be unfair to permit the defendants to assert the protected status of their statements in order to permanently stay the present proceedings. It should be noted that, after argument had concluded, the parties were asked if there was agreement about Mr Sheehy's report being tendered at the Coronial Inquest and if so, what, if anything, flowed from the tender. Further written submissions were received from the parties, for which the Court is grateful, but in light of the view ultimately taken in relation to this challenge, it is unnecessary to further consider this matter. 57 Two issues then remain for consideration: firstly, the submission that the use of these protected interviews by Mr Morrison reading both Mr Sheehy's report and Professor Galvin's reports resulted in a breach of the protection and warranted a stay of the prosecution; secondly, the circumstances surrounding the compilation of Professor Galvin's report and its reliance upon answers given by Mr Milner and Mr Baldwin that were protected by s 60(2) meant that Professor Galvin's report should be excluded from evidence under the combined operation of ss 135, 136 and 137 of the Evidence Act. 58 As earlier indicated, Mr Morrison's affidavit in support of the application for the issue of an order stated that, in bringing the prosecution, he had read and relied upon the reports of Mr Sheehy and Professor Galvin. That affidavit was not read as part of the formal proceedings and at the time this prosecution was commenced it was not required as a necessary pre-requisite to commencing proceedings. In no sense, therefore, have the statements of Mr Milner and Mr Baldwin been tendered against them "in evidence" in these proceedings. If there has been no breach of the protection provided by s 60(2), the highest that the defendants' challenge reaches is that Mr Morrison used answers that were the subject of the protection of s 60(2) in order to commence the prosecution and without those protected answers, Mr Morrison could have no basis to commence the prosecution. As will become relevant to the second issue, during the course of the hearing the Court entertained submissions regarding the admissibility of Professor Galvin's report and ruled that, while there were some assumptions identified upon which Professor Galvin based his report and those assumptions reflected matters disclosed in the protected answers given by Mr Milner and Mr Baldwin under s 60(2), the use of the information as mere assumptions could not breach the protection provided by s 60(2) and left the prosecution in the position of needing to call admissible evidence of these matters: if the prosecutor was unable to do so, then certain aspects of Professor Galvin's report would not be established in evidence and on analysis that may result in the report being rendered less significant or totally without basis. 59 It is also difficult to see what actual prejudice arises since the great bulk of the material referred to appears to have become evidence in the defendants' case. No particular answer or set of answers were relied upon or identified as creating the type of prejudice that would warrant some corrective action being taken by the Court but the submissions proceeded on the basis that the mention of these matters that were the subject of s 60(2) protection must necessarily result in the drastic consequences argued for by the defendants. I am unable to accept that approach, especially in light of longstanding authority that the power to stay proceedings permanently for abuse of process will be used in only the most exceptional circumstances to result in a criminal prosecution being stayed and that the defendants must show something so unfair and wrong that the Court would not allow a prosecutor to proceed with what was, in all other respects, a regular proceeding (see DPP v Shirvanian (1988) 44 NSWLR 129 at 133-134 and Jago v The District Court of New South Wales (1989) 168 CLR 23 at 30-31). The case presented by the defendants falls far short of establishing this degree of unfairness. 60 The last challenge proceeds on the basis that the circumstances surrounding the material used by Professor Galvin in the compilation of his expert report are such that, either separately or together, ss 135, 136 and 137 of the Evidence Act come into operation because of the degree of prejudice resulting from the use of protected information is such that the report itself should be rejected (although already admitted into evidence after hearing extensive submissions on very similar grounds earlier in the proceedings). This type of challenge was considered by Staunton J in McMartin and by Austin J in ASIC v Rich. In the ASIC case, the defendants were two directors of a failed company charged with a contravention of the Corporations Act 2001 (Cth). ASIC wished to tender in evidence the expert opinion of an accountant. Prior to being retained as an expert witness, both the accountant and his team had substantially assisted ASIC in its investigation of the company including being involved in the examination of directors and employees and in the preparation of forensic reports. The team continued to provide that assistance to ASIC. The report relied on s 19 examinations material contained in affidavits and statements but reliance on that material was removed from a revised report following instructions from ASIC to the expert to form an opinion on other material. The report was objected to. In dealing with these issues, Austin J referred to the judgment of Staunton J in McMartin and then stated at [359]: I think the analogy with McMartin is fairly strong. McMartin was in one respect a stronger case; Mr Anderson played a role in the very process that was of evidentiary importance in ultimately determining the defendant's culpability; see at [59], per Staunton J. However, in both that case and the present one, the witness had an extensive involvement in another investigatory process in which he was exposed to a substantial quantity of information, which he was then required to exclude from consideration in forming his expert opinions. In two other respects, the present case is a stronger one than McMartin; first, in the present case Mr Carter's involvement with ASIC included an involvement in the decision-making process for commencement of the proceeding in which he then was proffered as an expert witness; and second, in the present case the PwC team, but not Mr Carter personally, continued to have a role in assisting ASIC in connection with the proceedings, in circumstances where the arrangements to prevent the flow of information from them to him were neither adequate nor wholly effective. 61 Austin J reviewed other cases where there was a close connection or involvement of persons in the investigation of the incident and later being called to give expert evidence. That difficulty does not arise in the present proceedings. Professor Galvin was not part of the process of investigation undertaken by Mr Sheehy but was later engaged to provide expert reports based upon a number of assumptions drawn from material that Mr Sheehy had gathered. Although Professor Galvin had read a number of documents, including the protected statements made by Mr Milner and Mr Baldwin, as well as the Coronial proceedings, he was quite firm in cross-examination that his opinions were based upon the assumptions provided to him. That evidence was not detracted from merely because, in the course of preparing his report, Professor Galvin had met with legal representatives for the relevant Department and had discussed with them the matters that were appropriate for him to be supplied with in order to provide an expert opinion. Cross-examination on this topic did not throw suspicion on that course of conduct and did not rise to the point of raising a real question as to Professor Galvin's independence. Nor was his status as an independent expert in these proceedings called into question because in other proceedings issues had been raised about his connection with the party who was calling him as an expert. Similar objections were raised in McMartin, although there were understandable differences in the issues, but Staunton J was able to form the view that those matters did not undermine confidence in the expert's report such as to raise issues of prejudice such as to permit the Court to exclude the report under any of ss 135, 136 and 137 of the Evidence Act. Her Honour noted that in an application under any of those provisions, the onus was on the defendants to establish a proper case for the report to be rejected. That has not occurred in the present proceedings and the Court declines to reject Professor Galvin's report on the basis of those various discretionary considerations. THE EVIDENCE OF CREW MEMBERS: MINING EXPERIENCE AND TRAINING 62 Of the seven member crew, four gave oral evidence and initially a statement made by Mr Richard Zgorzelski was received in evidence. Attempts had been made to have Mr Fraser give evidence but he was overseas at the time of the hearing and a summons to attend the proceedings had not been able to be served upon him. Ultimately, a statement made by Mr Fraser was tendered in evidence. 63 The evidence showed that the miners engaged on the crew at the time of the accident all had significant experience working as miners and most of them had a great variety of mining experience. Mr Rowles had some 11 years' experience as a miner with pillar extraction experience of approximately 2 years up to 1996 before the accident at another mine but had no partial pillar experience. Mr McAlary was the Deputy and was in control of safety and had pillar extraction experience approximately ten years prior to the accident and had eleven years experience in the coal industry. The company had called for people with pillar extraction training and he had come forward and had been given a day's training on the surface. He had approximately one year's experience pillar mining but not partial pillar mining. Mr Robert Monk had 15 years mining experience in a variety of mining operations. He had three to five months' experience with pillar extraction mining earlier in his career and he had pillar extraction training at the Bellambi West Mine provided by two experts during a full shift. Mr Gavin Pearce had ten years' experience in coal mining but no previous experience in partial pillar extraction. Mr Richard Zgorzelski had 20 years' experience in the mining industry and had experience of pillar extraction mining at three mines but said he had no practical instruction underground in pillar extraction. Mr Fraser had very long experience as a coal miner and had been with Allied Coal at Bellambi West for nearly two and a half years. He had previous experience of nearly 12 months in pillar mining but that had occurred many years earlier. Mr Aspinall was very experienced in the coal mining industry and was highly regarded as a competent miner. 64 In relation to training, Mr Rowles said that, while he had had training in the recovery of a continuous miner that had become immobilised in the cut and flit operation he did not believe he had any separate instruction relating to the recovery of a miner that had become immobilised in partial pillar extraction operations. Mr Rowles recalled a toolbox meeting in October 2000 where the subject discussed was recovering an immobilised continuous miner although he was not sure of the content of that talk. During this toolbox discussion, there was reference to a safety issue arising from the Fletcher bolter, being a large piece of machinery, not being able to be manoeuvred past the tail of the immobilised continuous miner and that one option in the recovery process was to use the Fletcher bolter to the extent that it could be used. There was then discussion about using a hand held bolter. All the crew had been trained and certified in the use of the Fletcher bolter and the hand held bolter. The toolbox meeting discussed the use of the hand held bolter either with the Fletcher bolter or as an option to the Fletcher bolter. The use of timber props was also discussed and Mr Rowles said that he was experienced, as was all the crew, in the method of timber propping. Timber propping was suggested as another means of supporting the roof to obtain access to a stranded continuous miner. 65 Mr Rowles agreed that during the talks it was stated that in every case where a continuous miner was to be recovered the circumstances were likely to be different and care had to be taken and the particular circumstances considered. The situation had to be considered and careful judgment exercised. It was emphasised in those circumstances that the task was not to be rushed and that the rescue of an immobilised continuous miner from under unsupported roof was to be done safely regardless of the time taken in the recovery. During the talk it was emphasised that mine workers may be able to use a combination of the Fletcher bolter, the hand held bolter or timber props. There was no direction given not to use a Fletcher bolter to recover an immobilised continuous miner or not to use a hand held bolter in the recovery process nor was there a direction that the crew could only use props. The three pieces of equipment could all be used in combination if appropriate. On the day of the accident, Mr Rowles' recollection was that the Fletcher bolter was not available because of a breakdown in machinery but that the hand bolter and the timber props were available for use in the recovery process. 66 Mr Rowles agreed that on 27 November 2000, he had attended a two or three hour pillar extraction training course given by Professor Hebblewhite and Dr Sheppard and on the following day attended and completed a course called "Pillar extraction basic principles and practice for safe face supervisors". That training led to him being accredited by the Mine Manager under relevant statutory and regulatory provisions to be classified as a pillar training operator. 67 Mr McAlary said that he had previous experience of recovering a stranded continuous miner in cut and flit operations but not in "lifting off" partial pillar extraction operations. In the cut and flit operation he had participated in recovering a stranded miner approximately six or seven months before the accident. That continuous miner was under supported roof and some props were placed on top of the miner. He had no experience of recovering a miner in pillar operations. In development mining, in recovering a stranded miner the method adopted was to use chocks on the miner and pull it out using a winch system. This had occurred under supported roof: the roof came down and sat on top of the miner. Mr McAlary had never participated in the rescue of a miner under unsupported roof. He said he had no training in relation to recovery of a miner under unsupported roof in a pillar mining extraction operation. Prior to 20 December 2000, Mr McAlary could not recall seeing a document dealing with a safe job procedure in the cut and flit operation stating that in the event of a continuous miner becoming inoperative while under unsupported roof the area would be supported by using the mobile bolter to the back of the miner then by hand held bolters to the point on the miner where repairs needed to be made. The document also spoke of recovering a miner beyond supported roof using the combination of a mobile bolter and a hand held bolter. 68 Mr McAlary said that he had previously had some pillar extraction experience at another mine approximately ten years before the accident. Just prior to pillar extraction commencing at the Bellambi Mine on 1 December 2000, the company had called for people with previous experience in that system and Mr McAlary had responded. He was asked about his experience in the system and training was organised for those who had identified themselves as having had familiarity with pillar extraction mining. Mr McAlary participated in that training which he said consisted of one days' training on the surface and involved considering scenarios arising in the process and that had been conducted by people from the University of New South Wales. 69 Mr McAlary recalled a toolbox talk before the accident addressed by the Mine Manager, Mr Milner, where there was some discussion about the manner in which the miner might be recovered from under unsecured roof. In that talk, they were told that no one was to go out under unsupported roof to do anything. There was some discussion about using a Fletcher bolter and using a shorter bolt for the hand held bolter. There was also discussion about making a walkway out to the miner supporting the roof so that no one was walking under unsupported roof. The walkway was to be constructed to the right hand side towards the panel. Mr McAlary understood that if a crew member went out under unsupported roof he would probably be sacked. The support for the roof was to be the use props or bolts. That toolbox talk about recovering a stranded miner dealt with development mining but not pillar extraction mining. There was no further instruction as to a different procedure when dealing with the situation of a stranded miner under pillar extraction operation. Mr McAlary did not recall having any familiarity with a document entitled "Pillar extraction operating procedures" dated 28 November 2000. 70 Mr McAlary was shown documents concerning toolbox talks given to three shifts on training for pillar extraction on 24 November 2000. The talks were presented by Mr Milner and Mr Pearce who was the project manager. Looking at the document, Mr McAlary could not recall the events. He had no recollection of this toolbox talk being given in preparation or as a preliminary to the surface training course on pillar extraction given four days later. He had no recollection of Mr Milner, on 24 November 2000, passing around a document entitled "Pillar extraction operating procedures". A toolbox attendance sheet dated 24 November 2000 showed that Mr McAlary had attended that toolbox talk. 71 Mr Milner had used a whiteboard in a toolbox talk in the crib room dealing with methods of recovery of an immobilised continuous miner and Mr McAlary recalled that had happened before the accident and accepted that talk could have happened in October 2000. He recalled that on 17 October 2000, Mr Milner gave a toolbox talk in the crib room using a whiteboard on the subject of recovering an immobilised continuous miner and that the meeting discussed a range of subjects. He agreed that there was discussion of problems using a Fletcher bolter because there was difficulty in getting the Fletcher bolter beyond the tail of a continuous miner. He also agreed that there was discussion about the difficulty in using a hand held bolter above the body of the continuous miner because the hand bolts were so long. Mr McAlary also recalled that Mr Milner talked about the possibility of using the Fletcher bolter for some part of the job and using shorter bolts, and as an alternative where it was sensible and usable, the use of a hand held bolter. Further, when it was sensible, the use of timber props or a combination of the Fletcher bolter, the hand bolter and the timber props was discussed. The emphasis of the talk was on supporting the roof and making sure it was safe. Mr Milner was saying that the crew could use different techniques or a combination of techniques with the idea being to adapt the best method in the particular circumstances being confronted. 72 In further cross-examination, Mr McAlary indicated his experience as a miner using timber props and agreed that he was competent and able to use timber props. From his experience, the other members of the crew were also competent in the use of timber props. Mr McAlary agreed that retrieving a continuous miner that had been buried was a particularly dangerous task because more roof might come down. The task of recovering a continuous miner under unsupported roof was dangerous but there was added danger when a miner was buried. Mr McAlary also agreed that in mining, whatever process was used, workers were not to go out under unsupported roof and that applied whether it was cut and flit or pillar extraction mining: with all types of mining, the roof was to be supported as you went out. 73 Earlier in his career, Mr Monk had experience with pillar extraction of approximately three to five months. He could not recall having experience at Bellambi in retrieving a continuous miner. He had received training in relation to pillar extraction at Bellambi before that process started and that training was provided by two experts and basically occupied a full shift. 74 It was accepted by Mr Monk that there were toolbox talks given from time to time at the Bellambi Mine but he could not recall a talk given by Mr Milner and Mr Pearce on the subject of pillar extraction techniques. He had some 14 years or more experience in propping timbers and Mr Monk thought that all the crew knew how to put up a prop and he knew this from his observations of the crew working at the task. On 27 September 2000, he recalled a two to three hour training session on pillar extraction and that after that training he had been appointed by the Mine Manager as having qualified as a pillar training operator. 75 Mr Pearce knew from previous instruction, and it was well known in coal mines, that they did not go out under unsupported roof as they would take their life in their hands. Before this accident he considered himself as being experienced in the use of timber props and had performed that work at other collieries. From what he had seen of the other members of the crew he believed that they were also competent in the use of timber props. He understood that when he was timber propping he was to stay under supported roof while undertaking the task. 76 Mr Zgorzelski had 20 years' experience in the mining industry and had been given instructions in propping procedures. He had experience in pillar extraction and at Bellambi West Mine the company had identified the risk of pillar mining including the setting of props. He had seen a written procedure for the recovery of a continuous miner in cut and flit mining and when he had been asked, he told the company he had experience in pillar mining but the company did not provide any practical instruction in underground pillar extraction. The company had identified the risk in pillar mining of not going out into an "open area". He had been told that if it did not feel right, the miners could "pull the BLS up or set props". The work procedure for propping to the continuous miner was to go slowly "propping inbye". Mr Zgorzelski had seen a procedure for recovering a miner from unsupported roof in cut and flit operation and was aware that people had been suspended for not doing that properly. He had not received any practical instructions on pillar extraction at this mine. The company had asked him if he had experience with pillar mining and he honestly felt he had that experience and could do the work. 77 Mr Fraser said that he had been shown a company procedure for recovering a broken down miner and had attended some toolbox talks on that subject. The last talk had occurred approximately two months prior to the accident where people had been disciplined for working under unsupported roof. At the toolbox talk it was reinforced that working under unsupported roof should not happen. To his knowledge the use of a Fletcher bolter had not been discussed as an alternative in rescuing a stranded miner in unsupported roof: he was aware of using props in this process. He could not say if there was a procedure for recovery under unsupported roof during the pillar extraction process and he had not participated in the recovery of a continuous miner in another form of extraction. He said he had 12 months' experience in pillar extraction 30 years ago and at the time it was "all timber" with no "BLS". There were toolbox talks and training provided in relation to pillar extraction and that was theory training and there was also working with men who had pillar extraction training. The training for recovery of a miner was theory and was given at toolbox talks in the training rooms and involved using props. In the training sessions, there was also discussion of using a bolter, hand held bolters but he could not remember any discussion about the use of a Fletcher bolter. He was informed in training of the hazards of pillar extraction with the main danger being a roof fall. 78 The members of the crew who gave oral evidence or whose records of interview were tended all stated that they were able to properly use the system of sounding the roof and barring it down where necessary. While there was no formal training provided as to how to sound the roof, this was learned on the job and was still applied in the mining process. There was no evidence that the men had sounded the roof before this accident or had barred it down, nor had he seen anyone else undertake that task. Mr Rowles had no memory of the tasks he performed some while before the accident as a result of the injuries he received and it was unknown what steps were taken, if any, by Mr Aspinall in relation to sounding the roof and/or barring it down. PILLAR EXTRACTION TRAINING CONDUCTED ON 27-28 NOVEMBER 2000 79 Professor Hebblewhite and Dr Shepherd compiled a training course for the Bellambi West Mine on the introduction of pillar extraction mining following the approval of the Mine's s 138 Application in that regard. The course content, together with illustrations, overheads, extracts from journals and assignments covering some 350 pages, was tendered in evidence. In relation to the operator training course, one aspect dealt with was the identification of pillar extraction by reference to plans, terminology, how it differed from longwall mining and development mining. A separate section dealt with pillar extraction sequences including fenders, lifts and stooks and a further section dealt with pillar extraction support rules, including goaf edge control and breaker line supports. A separate section dealt with pillar extraction hazards. The approximate time for this training was two hours. In relation to basic principles and practice for face supervisors, the course content dealt with the role of deputies, accidents, statistics and case histories, basic principles involving rock behaviour, pillar behaviour, pillar extraction methods and sequences, the effect of geology on mining conditions and caving, the role of supports in pillar extraction and partial extraction and also involved a group exercise. 80 In the course for face supervisors, the course objective was stated as providing mine Deputies and operating personnel with an improved practical understanding and awareness of the geo-technical principles behind pillar extraction methods and plans and the geo-technical environment in which they were working. In order for Deputies to fulfil their statutory supervisory role in a pillar extraction section with a greater level of knowledge, the course was to assist to carry out the extraction plans and support rules laid down and to allow mine Deputies to better recognise mining conditions, geo-technical symptoms etc that may affect the safety of the crew in the mining operations. A survey was undertaken of the statutory framework and some facts and figures were provided about buried continuous miners in pillar extraction. In a table of details regarding buried continuous miners in pillar extraction, it was suggested that, of those dealt within the table, 63 per cent had warning of an impending fall but 37 per cent had no warning. The figures continued and demonstrated that 60 buried continuous miners had occurred in three years to 1991 and in the last 10 years there were 12 fatalities associated with a buried continuous miner. 81 In one part of the course provided it was noted that at some stages during pillar extraction, mining had to retreat through standing intersections and this could be a particularly hazardous operation. A number of reasons were provided as to why the exercise was hazardous including the fact that intersection instabilities such as floor "heave" or drummy roof often developed rapidly when operations were close by. It was stated in the course that time could be lost due to these instabilities at a stage in the extraction sequence when rapid access to or retreat from the coal face and uninterrupted extraction of the final stages of the pillar were critical to success. It was stated that the mining environment was at its most dynamic stage in the vicinity of intersections with each cut or flit having an accelerated effect on the re-distribution of load. Under the heading of "Review", the course documents stated that an essential element in the management of pillar extraction was the review process. Reviewing the impact of events, changes and performance were essential to modify and optimise the design of pillar extraction plans for both immediate and future workings. It was recommended that a review process be established to scrutinise the plan whenever identified issues arose including unplanned accidents. One example of an unplanned accident was a buried continuous miner. In relation to buried continuous miners, the factors identified in dealing with accident case histories were the following matters: time; abutment stress; span intersections; first lift and last lift; stooks stiffness; geology; change in sequence; shallow depth and, pillar strength. One of the assignments dealt with a scenario in which a continuous miner was buried although the exercise did not state that the recovery procedure would be examined. A HISTORY OF ROOF FALLS 82 Documents placed before Mr Milner enabled him to say that there had been recordings of a number of falls in and around the area where the work was being performed at the time of the incident. A plan had been marked up with the intention of giving the crew and the deputies another tool to identify potential problems. There were variations in the zones and within the plan the zones could change within a few metres. Within the area where this mining was to take place, a number of previous falls had been indicated. There was a toolbox meeting that dealt with the nature of the roof and a report by the shift leaving before Mr Aspinall's crew took up the work that showed there were thin laminates falling. The toolbox talks were to alert people to what was going on underground and there were toolbox talks each day. 83 On 19 December 2000, Mr Pearce from this crew had conducted a toolbox talk: he had approached Mr Milner and pointed out that small plys of stone were falling out and he wanted to "pocket the fenders" and Mr Milner agreed to that approach and asked him to make sure that everybody else was aware of the situation. Mr Milner did not regard this as being evidence of "bad roof" but it was a matter of the presence of thin laminates. Although there were some falls from sections of the roof, the roof could change metre by metre - mining conditions continually changed. The fact that previous falls had been encountered could give a potential indication of what might be faced by the incoming crew on the day of the accident. On 19 December 2000, Mr Pearce had addressed the crew about leaving fenders because he was drawing to the crews' attention that in the previous shift some thin laminates had fallen out and they were to leave stooks. 84 Mr McAlary had been absent for approximately three months from May 2000 and did not attend some of the toolbox talks about these matters. Mr Milner was aware that Mr McAlary had some pillar extraction experience ten years earlier and that spanned approximately 12 months. He was given further instructions and attended the toolbox talk on 24 November 2000 - he needed further refresher training. When he returned, Mr McAlary attended the two-day course presented by Dr Hebblewhite and Dr Shepherd and some of the other matters were covered in his induction to the mine. There was no specific system operated by the mine whereby checks could be made of those who missed the talks to ensure that they understood the issues that had been dealt with. The matters could be dealt with when Mr Milner conducted toolbox talks and asked for any questions. He would also speak to the shift Under-manager and ask them to make workplace observations and he would also make workplace observations to make sure that people were doing their work properly. In particular, there was no assessment of competency relating to the recovery of a continuous miner in pillar extraction operations. 85 Mr Milner believed that Mr McAlary had also attended the toolbox talk he had conducted on 24 November 2000 when he spoke about the pillar extraction operation procedures and the recovery of a stranded miner and the use of the Fletcher bolter. Mr McAlary knew from that talk that he was not to work under unsupported roof. Mr Milner would have told that meeting that in getting to the stranded miner they need to establish a "safe corridor for access" but even then it depended on the conditions. The method of ensuring that the message had got through to the men from the toolbox talks was by observing them at work through inspection by the mining staff to ensure that they were carrying out their tasks. If they were unsure of anything, Mr Milner said they were told to cease operation. Mr Milner did not believe that the method being adopted on the night of this accident was in error or flawed. 86 In relation to the safe working procedure actually adopted to recover this miner after the accident, the procedure adopted included requirements made by the Mining Inspector. Mr Milner did not believe it was necessary that the Under-manager should assume control at any stage of the recovery: in his view, the Deputy had more than enough training, skills and knowledge sufficient to deal with the situation. In Mr Milner's view, if the crew had made a proper assessment of the prevailing conditions at the site and had sounded the roof and inspected where they were to work then they would have identified that there was a problem. Potentially they would have ceased work and made a telephone call as they had been instructed to do: they could have barred down the roof or they could have chosen a different route. Mr Milner did not agree that the SWP 4 approved by the Mine Inspectors was a significant variance on propping out by rows to the miner. 87 After the pillar extraction method was commenced, Mr Milner had sent three very experienced pillar miners underground to ensure that the men were working appropriately under the new system. That had occurred in the first two weeks of pillar extraction and to the best of his recollection, at various times the three worked with Mr Aspinall's crew during that time. GUIDELINES FOR USE OF REMOTE CONTROLLED MACHINERY 88 In February 1998, in a co-operative effort with the New South Wales Mineral Councils and the unions, the Department of Mineral Resources had produced a guideline for the use of remotely controlled mining equipment after a mine safety review had been directed by the Minister in November 1996. In the introduction to the guideline, the following was stated: Because of the inherent hazards associated with mining activities and the complexity of mining equipment and the associated systems, procedures and methods, the potential for a serious accident to occur will always be present. The ultimate responsibility for the safety of any mine, and the manner in which it is operated, rests with the manager of the mine. The manger of a mine should develop a procedure or protocol which clearly defines the circumstances which will determine when work tasks are to be carried out using remote control equipment. This procedural protocol should be suitably communicated to all relevant personnel at the mine and regular reviews should be carried out to ensure that there is a full understanding of the procedure. ... It is widely accepted that risk management practices used in the various techniques of risk assessment contribute significantly towards improvement in the safety of complex operations and equipment. Remote control mining machines have been introduced primarily to improve safety. ... The use of remote control mining equipment can expose workers to different hazards. ... The risks from the traditional hazards are falls of ground ... may be increased in a manner that is not readily recognised. 89 In relation to work processes, the guideline stated that safety operating procedures, developed by competent personnel, were essential for the safe operation of remotely controlled equipment. In dealing with basic rules for developing operating procedures, the guideline stated that it was necessary to define what mine personnel needed to know and that included the purpose and detailed objectives of the SOP (Safe Operating Procedures), important observations to be made, for example, ground conditions and face conditions and likely general hazards and appropriate precautions were required as well as specific emergency procedures. There was a need to provide detail of what mine personnel needed to do, "with what, when and how" so that the job could be completed, including provisions for keeping workers away from hazards identified in the risk management process. 90 After the guideline was launched in February 1998, it was considered appropriate that an assessment document be prepared to enable mine operators to evaluate their systems and procedures against the guideline and at a later date, for inspectors of mines to conduct audits at mine sites in order to monitor the status of remote control equipment operations. It was in September 1998 that the assessment document to accompany the guideline was issued. In the Foreword to that assessment document it was stated that it was of "extreme importance" that all underground mine sites, where mining equipment was being operated under remote control, were to have systems and procedures ensuring, amongst other things, that the system of work used for remotely controlled operation of mining equipment was "suitably documented and enforced" and that operators were "properly trained in its use". 91 The assessment document had a number of attachments which raised various questions then gave guidance notes and indications of what support documentation should be provided. In relation to the role of people in the process, the question was asked: Has a procedure been developed for the training and accreditation of operators and maintenance personnel associated with the use and servicing of the remote control equipment?

The guidance notes said that the procedure should cover a number of items including the selection of personnel, refresher training and accreditation processes. Support documentation included the procedure document and documented evidence of personnel training and accreditation. 92 The assessment document in dealing with equipment recovery asked the question: Has a procedure been developed for the recovery of mining equipment from dangerous locations? The procedure to be followed was to cover the notification of every recovery situation, the persons authorised to take charge, the methodology for recovery and the precautions to be taken in the exercise. In terms of documents, the procedure was to be documented with evidence of authorised persons taking charge. 93 In relation to the guideline document, Mr Milner said that the men had been told that if they needed assistance or were "unaware of anything" they were to contact the shift Under-manager or Mr Milner. There was no obligation to notify anyone unless the men felt the need to or felt that they could not handle a problem. In relation to safety, the Deputy had the final say and the men were told that this was the position. THE ACCIDENT 94 Against this background of the experience and training acquired by the crew, it is appropriate to next consider the evidence as to what actions were taken once it was discovered that the continuous miner had become stranded on the day of the accident. Because of the accident, Mr Rowles had no memory of what had occurred from approximately thirty minutes before the accident. He was the shift co-ordinator or production co-ordinator on the day and he remembered being at the face and seeing the continuous miner stranded but he was not sure if the crew were making preparations for its recovery and he did not recall any discussions about the recovery of the miner. He stated that there had been a roof fall prior to the accident. The project manager liked being informed when there were significant delays in the mining. Mr Rowles believed that the giving of directions for the recovery of the stranded miner was the Deputy's duty and it was not his duty as shift co-ordinator. In relation to sounding, he stated that was a procedure carried out prior to supporting unsupported roof and that sounding was usually performed using bolts or a crowbar to bring down the roof. 95 Mr McAlary stated that, on 20 December 2000 at approximately 2.00 pm, there was a toolbox talk. He had met and spoken to the outgoing day shift Deputy and everything seemed to be alright while they were working on a left-hand lift. In his role as the Deputy he conducted inspections and went to the face on this shift and checked the conditions and "made sure everything looked alright". He checked the cable, the state of the ventilation, the state of the securing of the roof inside and the general safety of the men. He accepted that as the Deputy he had control of safety. 96 Mr McAlary was away from the face when the miner became stranded. He was told by two members of the crew that the miner had become stranded and they said they needed some props. Mr McAlary proceeded to secure the tools necessary to cut props and then returned to where the miner had been stranded in the goaf. By this time, Mr McAlary had the necessary tools, including a saw and a pelican pick. Mr McAlary then had a discussion with Mr Rowles and Mr Aspinall. A plan was devised with Mr Rowles saying that they should put up some props to make a walkway out to the miner and to support the roof. Mr Rowles knew what was wrong with the miner. While having this discussion, the group was six or seven metres from the back of the miner and the miner was approximately another eight metres in length. When the tools were gathered, a discussion was held and Mr Rowles said they were to prop out to the miner and Mr McAlary stipulated that he wanted two props to form a walkway rather than just one row of props and no one argued against that. 97 Mr Aspinall then cleared part of the floor with the pelican pick approximately half a metre from the last roof bolt. A measuring stick was used to obtain the size of the prop to be cut and measurements were taken from the floor to the roof. Mr Rowles and Mr Aspinall measured another spot and cleared it for another prop to be erected. 98 Mr McAlary confirmed that, when being questioned by Mr Sheehy, he stated that on arriving back to the face he looked at the roof and it had "quite a few pick marks along the roof". He inspected the goaf and the size of the stook that were left on the right-hand side and looked at the competency of the floor. This inspection was accepted as being consistent with his statutory and regulatory duties as a Deputy. 99 When again asked about the discussion amongst the crew about what should happen, Mr McAlary said he was not there at the time that discussion took place. He referred to the discussion he engaged in with Mr Rowles and Mr Aspinall about what should happen. When the shift began he had arrived at the face and had conducted an inspection for about half an hour and then had "walked the district", a task that took approximately one and a half hours. He accepted that, as a Deputy, he could stop the work if he felt there was a risk present or the possibility of a risk but he could see no risk from the work on the day and there was nothing out of the ordinary. He had looked at the scene and had spoken to the men in the crew. He understood that any worker could stop the work if a risk was recognised but no risk was raised on this day. He did not sound the roof or bar it down nor did he ask anyone to do so. He thought that was unnecessary because he could not see any loose coal on the roof or anything like that and that it is why, normally, it would be barred down. The roof was "pretty much stone" rather than coal. 100 Mr Pearce had been told by Mr Monk that the continuous miner had become stranded and that some props were needed: he had said to Mr Monk that they had better go up and have a look at the miner. Mr Pearce then went to the face and saw the miner and Mr Rowles said that they would prop out to it. He saw Mr Aspinall measure for the props. As a matter of course for a miner he looked at the roof "and it looked alright". He was not looking at the miner when the roof collapse occurred. 101 The decision about the technique to be used to support the roof around the stranded miner had already been made by the time Mr Pearce arrived. He did not participate in that discussion and others made the decision. Once at the face with the stranded miner, he was there for some minutes before an attempt was made to prop out to the miner. They had to wait for the Eimco to return with the props and that took about five minutes from the time he arrived. 102 Mr Pearce stated that sounding the roof was not used as much "these days" but had been used over the years as a technique. On the day of the accident he did not bar down the roof because it was flat: he stated that if it was a perfect roof then it would not be barred down but if something was hanging from the roof, then it would be barred down and that is how he had been taught. A flat roof, such as this roof, was not to be touched and should be left but if there was something hanging down then it should be barred down. He said that he would not necessarily sound the roof to see if it was a good or bad roof but if it looked a bad roof, he would bar it down. Mr Pearce stated that nobody was asked to bar down the roof on this day because it was flat. He understood that miners did not go out under unsupported roof because to do so would be to take your life in your hands - it was like playing russian roulette. 103 When the continuous miner became stranded, Mr Monk said that Mr Zgorzeklsi had left the site to get some props. When the props arrived Mr Monk cut the first prop. In relation to the course to be adopted to retrieve the miner, Mr Monk said that someone said, "Are we going to put two rows of props up?" and he believed Mr Rowles said, "Yes, we are". He had assumed that Mr Rowles decided to prop out to the continuous miner but he could not be sure if that was the fact. Mr Monk did not sound the roof and stated there was no need to have to go under unsupported roof. He had not sounded the roof or barred it down as the roof "was normal and it didn't look like it had, there was no guttering or anything at the time". He stated that sounding could help but there was no need to bar anything down in relation to this roof. The roof looked "quite stable" and was flat and had no look of guttering and it looked like "a normal stable roof". 104 In his interview with Mr Sheehy, Mr Fraser said that he and Mr Aspinall came back to the continuous miner at approximately 8.55 pm. Mr Aspinall had taken over operating the miner and Mr Fraser took up his normal job of handling the cable. When the miner was moved back into the face to cut another "two cars" the miner stopped and they spent five to ten minutes on the control box trying to move it. They then called on Mr Rowles and after approximately ten minutes, Mr Rowles said that Mr Zgorzeklsi and Mr Fraser were to obtain approximately ten props in the Eimco bucket. Mr Zgorzeklsi drove the bucket with the props in it to the miner while Mr Fraser gathered some wedges and then followed a few minutes later. When Mr Fraser arrived, one prop had already been cut. Mr Aspinall and Mr Rowles had the prop with Mr Aspinall holding the bottom of the prop and Mr Rowles holding the top. Mr Aspinall was leading the prop "out to position the bottom" and Mr Rowles "was taking the top of the prop to the roof". The top of the prop looked to be approximately 18 inches from the existing bolts: as Mr Rowles got the prop to the roof, "the piece of roof seemed to pivot on the top of the prop". The roof fall happened very quickly. 105 In answer to questions put by Mr Sheehy, Mr Fraser said that on the 519 Panel the designated supervisor was Mr Rowles and he imagined that Mr Rowles was supervising the procedure for recovering the miner because he had asked members of the crew to get the props. As far as he knew, the role played by the Deputy in organising the recovery of the miner was helping to unload the props from the Eimco bucket. Mr Fraser did not know who made the decision to timber prop the way to the continuous miner and he did not know if any other form of temporary roof support was considered. In answer to further questions, Mr Fraser said that Mr Aspinall was holding the bottom of a prop and positioning it and leading the bottom out while Mr Rowles was holding the top of the prop. Mr Rowles took the top of the prop to the roof but Mr Fraser did remember the prop "was vertical at the time". He did remember the piece of stone "sort of pivoting at this point". The roof fall happened in a matter of milliseconds and at a time when the bottom of the prop was being positioned some half a metre out from the line of bolts with Mr Rowles starting out under the bolts. 106 In his record of interview with Mr Sheehy in December 2000, Mr Zgorzelski said he was working on the 519 Panel when the machine stopped. He asked Mr Rowles whether they were going to fill the last car but was told that would not happen and Mr Rowles asked him to get some props with Mr Fraser. Mr Zgorzelski drove the Eimco to pick up the props and timbering tools and drove back to the face. Mr Monk had shunted him towards the BLS where he stopped the Eimco with the timber props inside. After going around the Eimco to turn off an air valve, Mr Zgorzelski found that the first prop had been cut and then Mr Monk had asked him to obtain another saw because the one they were using did not work. While Mr Zgorzelski was absent, the fall occurred. Mr Zgorzelski said that the supervisor at the time was the shift co-ordinator, Mr Justin Rowles. The work procedure for propping out to the miner was to "go slowly propping inbye". POST ACCIDENT RECOVERY PROCEDURES AND PRIOR MINE PROCEDURES 107 After the accident, two procedures were written in response to notices issued by Mr Barraclough on 6 January 2001. One procedure was written for the removal of a continuous miner from under unsupported roof and the other dealt with a buried continuous miner. SWP4 dealt with the safe removal of the continuous miner from unsupported roof and stated that the panel Deputy had full statutory control of the operation unless the Under-manager assumed control as covered within the SWP where the recovery took in excess of approximately one hour and/or there was in excess of 300mm of ply having fallen and/or a BLS unit was to be moved: in those situations the shift Under-manager was to be present and have control of the operation. 108 In relation to the method to be used, the miner driver or the cable hand was to notify the panel Deputy and the panel co-ordinator. The Deputy, the co-ordinator and miner driver were then to carry out a joint inspection and assessment of the area as a group and develop an appropriate method of support and a recovery method in accordance with the SWP. The group was to decide whether bolters or props were to be used as per the support rules which were attached. The Deputy had the final statutory responsibility as to the type of support and the method to be used to recovery the miner. The Deputy was to notify the shift Under-manager before commencing work and was to inform that person of the action to be taken. The recovery operation could commence immediately after the toolbox talk was completed. The Deputy was to carry out a toolbox talk with the whole crew as to the method and type of support to be used to recover the miner. Crew members installing roof support were to sound and test the roof during all support operations. The Fletcher bolter or hand held bolters could be used and/or they could set timber as required. The crew were to install roof support to the back of a miner and minimum support requirements were laid down including rows of support at 1.2m spacing and 1.2 metres apart in two lines. Where a BLS unit was to be used in some circumstances to move closer to the miner, the shift Under-manager was to oversee the operation. Where the recovery operation took longer than approximately one hour in total, then the support method and type of support being used had to be re-assessed with the shift Under-manager to be informed and to oversee the operations from that time forward. Where any ply fall was less than approximately 300mm then the procedure for support was as outlined but where the fallen plys were in excess of 300mm then the Deputy had to inform the shift Under-manager who was to oversee the recovery and develop the appropriate strategy for the recovery of the machine. If at any stage in the process of recovery there was uncertainty then the process was to be stopped and the Mine Manager was to be contacted. The Mine Manager would then inspect the area, assess the situation and advise on the recovery process. The notification to the shift Under-manager of the event informing that person of the action to be taken were steps that Inspector Gardner wanted included in the SWP. 109 The May 2000 risk assessment prepared by Hawcroft Miller Swan, Consultants stated that the risk assessment considered risks in the "use of equipment of pillar extraction" mining and noted that the risk assessment considered "generic risks" to pillar extraction and a more detailed study would be required when the panel and pillar design was finalised. The risk assessment identified the recovery of a buried continuous miner as a risk to be addressed with no existing controls noted. It then stated that there needed to be developed and implemented an SWP for recovery of buried machines. In relation to this document, Mr Milner said that the "study" referred to in the risk assessment did not involve a risk assessment but a study of "sequencing" and "operational procedures" and noted that type of study was done. The risk assessment and study that the risk assessment contemplated was performed but did not require a further risk assessment. No "formal" risk assessment was undertaken but in the study that was performed there were identified certain risks within operational procedures and they were addressed. The May 2000 risk assessment considered "generic risks". 110 In Mr Milner's view it was not necessary to produce a written SWP, even if there was a new type of mining being undertaken for the first time in 20 years. He had told the men that if a miner was buried or a BLS was buried, "to stop the operation and contact me" and he would oversee the first two extractions. He told the men this on 24 November 2000 before pillar extraction commenced. This occurred when the toolbox talks were held for the pillar operating procedures but there was no record of what he said to the men. It was put to Mr Milner that Mr McAlary thought the toolbox talk dealing with the recovery of a continuous miner happened on 3 October 2000 but Mr Milner stated that he did many talks and went over that topic at three to four toolbox talks. 111 Mr Milner had prepared a draft note considering whether to issue a written procedure or SWP in relation to the buried miner but had not decided whether to issue it as at the date of the accident. He had purchased the appropriate recovery equipment for that circumstance but he regarded the problem was that every occurrence was different. He had to instruct the men on the options available to them so they could assess the situation in its entirety and each occasion was different: they were to make the appropriate decision and they were all instructed to cease the operation if they were unsure of what to do at any stage. 112 In February 2000, the Department of Mineral Resources had circulated a paper concerning the risky positioning behaviour of operators of remote control mining equipment. Mr Milner had received that document some little time later and had drawn it to the attention of the crews in approximately June 2000. Despite taking that action, Mr Milner had not, at that stage, decided whether it was appropriate to issue a written SWP to deal with a miner stranded under unsupported roof. Although he had not made up his mind as to whether there should be a written procedure, the crews had been told not to attempt to rescue a buried miner. 113 During 1999, Mr Milner had produced a safe job procedure for cut and flit operations dealing with the operation of the continuous miner. That procedure was in writing and stated that in the event of a continuous miner becoming inoperative while under unsupported roof, the area would be supported by the mobile bolter to the back of the miner and then by hand held bolts to a point on the miner where repairs needed to be made. It was also emphasised that, where the miner was beyond supported roof, the combined use of the mobile bolter and hand held bolters would provide the operator access to the miner before an attempt was made to recover the machine. Mr Milner noted that procedure was put together by a team of people who were formulating safe work procedures. The cut and flit operation had not yet commenced and the team was looking at a number of issues. Mr Milner had reviewed the documents and did not have a problem with them. 114 Mr Milner again expressed concern with putting into writing hard and fast rules when every situation was different and needed to be assessed: a written procedure in ever changing conditions was potentially flawed. There were later oral additions to this written procedure for cut and flit mining. The crew were meant to discuss the circumstances as to whether the bolter should be used or props or any combination and the Deputy was to have the final say about the procedure adopted. There was no requirement to ask for a decision to be made by somebody else out of the crew. 115 The document circulated by the Department of Mineral Resources drew attention to the fact that, sometimes under pressure of work, even the most skilled miner would adopt risky procedures including working under unsupported roof. Mr Milner had read this document but did not think it had much application at Bellambi West because there was no pressure to finish a job at that mine and also because of the reinforcement of the safety message at many toolbox meetings. Mr Milner accepted that cut and flit operations were not as dangerous as partial pillar extraction and the greatest risk was total pillar extraction. The range of risk in that mining did not encourage him to put all directions in writing because he had a range of literacy to deal with although some miners would copy written directions. The conditions were different under each style of mining. MINE MANAGER'S EVIDENCE AS TO PILLAR TRAINING 116 Mr Milner was employed as the Mine Manager at Bellambi West in 1997. When he first started at the mine, the cut and flit method had not been introduced and that occurred sometime later. In 2000, he undertook a course in the principles of pillar extraction mining. In October 1999, Mr Milner introduced a course in relation to the Health and Safety Management Plan at the mine and in 2000 held a refresher course. The training in relation to the health and safety plan in 1999 occupied approximately 9½ hours and covered everything in the mine. All mine workers were required to attend the course in 1999 and records showed that the crew involved in this incident (in December 2000) had attended that course except Mr Pearce who was not then employed. Mr Pearce received this information during his induction training when he commenced employment at the mine. 117 In October 2000, the refresher course was introduced and that involved the participation of the mine training officer (Mr Murray), an extremely dedicated and experienced person and also Dr Seedsman (the Mine's geotechnical consultant). Mr Milner, Mr Murray and Dr Seedsman were all involved in making presentations during this refresher course that lasted the whole day, between eight to nine hours. As part of his presentation, Mr Milner told the men that it was a requirement that each and every one of them was individually responsible for constantly checking the roof. The workers were required to attend and they were paid for attending this refresher course. Because Mr Milner had experienced a low level of literacy and even illiteracy amongst mine workers, he had adopted an approach of presenting essential information orally and backing it up by distributing hard copies. A record of attendances was kept and the members of the crew involved in the accident on 20 December 2000 were all present at this presentation. During the course of the presentation, Mr Milner told the men that training for pillar extraction had been organised. BLSs were to be set up and people from the University of New South Wales would be attending and giving pillar extraction training for operators, deputies and Under-managers. 118 In the course of his presentation in October 2000, Mr Milner had referred to a serious breach of the safety rules just prior to the refresher course where a number of workers had worked under unsupported roof with other workers being aware of their actions but taking no steps to do anything about it. Mr Milner had emphasised the danger of breaking the safety rules and that there was a need for them to look after each other. Their duty of care extended to having read and been aware of all the Acts and regulations relating to their job. The mine had summaries and copies of the regulations available and the company would provide them whenever they were needed. In emphasising the individuals' role in safety, Mr Milner told the men that if something occurred in the work area as part of their job, they could not say they did not know and ignorance was no excuse: it was their responsibility to find out. If there was anything they were unsure about during the refresher course they could ask any questions, even well after the course had been presented or they could ask any of the managers. They could raise the need for further training if it was thought to be required and they could use the union if there were safety issues. The workers were asked to take home documents with them as homework, to read and learn their contents and raise anything they did not understand. Mr Milner emphasised that the workers had to know the new safety management system and the new regulations and how they related to their tasks. 119 During the course of the presentation, Dr Seedsman dealt with roof support and referred to the miner's adage that "a good roof is the roof that will get you". Mr Milner had interjected during this presentation to tell the men to stop work if there was something they were not sure about or uncomfortable with and to desist from what they were doing and call for assistance. Mr Milner had given this message on numerous occasions. 120 The mangers' support rules were dealt with in the presentation. They had been designed by Mr Milner and Dr Seedsman. Mr Milner spoke about dealing with the circumstances of a disabled continuous miner saying they were to make a thorough inspection of the roof and the sides, to sound the roof and bar down any material. The miners were told to bring in an Eimco to clean up the floor and to use the bucket to scrape the roof if necessary. An assessment needed to be made whether it was safe to use bolts or props and if it was safe to use props then that was appropriate. If there was a larger area and a need to use bolts, then the process was to use a hand held bolter but if room allowed, they could use the Fletcher bolter. It really took an assessment of the situation at the time depending on the condition of the mine. If using props, the miners had to use at least two rows of props to provide adequate protection and support. If they were unsure, they were to stop and seek assistance: in the first case that would be the shift Under-manager and then the Manager, Mr Milner. They were told not to do anything they were not trained or appointed to do: if they were not sure about something, then they were not to do it. Under the management structure at the Mine, below Mr Milner as Mine Manager was a Deputy Mine-manager, Mr Grey-Spence and under the Deputy Mine-manager there was an afternoon Shift manager, Mr Goedde. Mr Goedde had nearly 30 years' experience in the coal mining industry and Mr Grey-Spence had at least 25 years' experience in the industry. In relation to the crew involved in the accident, Mr McAlary was well qualified and certificated with long experience in the industry and had the statutory role of Mine Deputy with responsibility for safety. Mr Milner had separated the role of production co-ordinator from statutory Deputy and that was the role held by Mr Rowles who concentrated on meeting the production, financial and monetary requirements. Mr Milner saw the potential for conflict between these two roles being performed by their Deputy so Bellambi West separated the roles. 121 The support rules for the mine were compiled by Mr Milner with the assistance of Dr Seedsman and signed off by a district inspector from the Department of Mineral Resources. The support rules opened with the following statement: Each employee at the mine is to ensure that he makes regular inspections of the roof and sides when undertaking any task while underground at Bellambi West colliery. If for any reason he considers that the roof or sides present danger to himself he is to cease work and make the roof safe.

Those rules were drawn up and dated 17 August 2000. Mr Milner said the support rules were available to all the men and that he had gone through the rules at various toolbox talks and presentations. There were copies of the support rules available in an area of the mine where the men had to pass twice every shift and there were also laminated copies underground on the notice board. 122 When the mine was working under the cut and flit method, a particular safe working process was drawn up for rescuing an immobilised continuous miner but in practice that procedure proved to have limitations. The procedure had been drawn up prior to the commencement of the cut and flit operation but when put into practice, the Fletcher bolter hit the boom of the continuous miner and could not go further in and at that point the miners could not get a hand held bolter into the space. The union check inspector asked for a review of the process and a method to meet their concerns about these difficulties. They were very experienced miners. As a result of the method review and after discussing it with the men, Mr Milner decided that they could add the use of timber props to the procedure. Mr Milner informed the workers of this change at toolbox talks on or about June 2000 and he went to every crew so that they understood that a combination of the Fletcher bolter, the hand held bolter or timber props could be used in that situation. Mr Milner had returned to this subject on more than one occasion. 123 In early June 2000, there was a toolbox training session in respect of borehole holing in which reference was made to the recovery of an immobilised continuous miner. Mr Milner said that the problem was that the bore hole emitted high concentrations of methane meaning that all power had to be turned off and machinery could not be used. In that situation, he instructed the workers that they could use hand held bolts or timber or a combination of both to access the bore hole and put in a special type of plug to stop the flow of gas. In relation to support, the minimum support would be to form a corridor either using bolts or props and if they made a proper inspection and tested the roof, they could use props. The roof conditions determined when they could use bolts. Every situation was different. The men had never been told that they could not use a Fletcher bolter or a hand held bolter and indeed, they were told that they could use those bolters. Mr Milner had never said it was compulsory that they had to set two rows of props straight out driver's side in this process. 124 Disciplinary action had been taken by Mr Milner against a crew that had rescued a stranded miner by working under unsupported roof. The whole crew was suspended for one day without pay and the Deputy was suspended for four days without pay, notes were placed on their file to record the breach and it was made clear to them that any further breaches could cost them their jobs. Mr Milner had spoken to the crew when they returned to work the next day and went through the issues with them, including the proper procedures to be adopted and he did this with all the crews. On 17 October 2000, all three crews were involved in a toolbox talk in the crib room where Mr Milner used a whiteboard to go through the options that were available to a crew rescuing an immobilised continuous miner. The options dealt with included using the Fletcher bolter, using hand held bolts or the use of timber props or if required, a combination of those methods. Mr Milner also went through the importance of testing and sounding the roof and if needed, scaling it down and also barring it down. Barring down and scaling down was the same thing. Mr Milner emphasised that they were not to proceed if they did not know what to do or if they had concerns about the work and if there was any breach of the Manager's rules or flouting of safety rules, then the men would be sacked. 125 In late June 2000, Mr Milner, in his role as Mine Manager, applied to the Minister for permission to extract coal reserves at the mine by means of pillar extraction using Breaker Line Supports and continuous miners. That application was made under s 138 of the Coal Mines Regulation Act. The company engaged specialists to assist in preparing this application and also sought advice from Hawcroft Miller Swan, a firm skilled in risk assessment in underground coal mining. The application was accompanied by a risk assessment that those specialists had prepared as at May 2000. Mr Milner said he had relied upon their advice as contained in a report and had asked the firm to carry out a broad ranging risk assessment. 126 The risk assessment for the proposed pillar extraction method at the mine identified 64 risks associated with such an undertaking. In the introduction it was noted that the mine had undertaken a risk assessment on the proposed pillar extraction system of mining "to identify and control roofs associated with this system". The risk assessment was to identify all areas and activities during pillar extraction that had the potential to cause a fatality or injury to people. The risk assessment considered "generic risks to pillar extraction" and noted "a more detail study will be required when the panel and pillar design is finalised". The risk assessment identified as a risk the recovery of a buried continuous miner and did not identify any existing controls but suggested potential controls to be to develop and implement a safe work procedure for recovering buried machines. Mr Milner stated there were different risks involved where a miner was immobilised due to a rock fall rather than due to some mechanical malfunction: where a miner was buried, the risk were a lot higher. 127 The application under s 138 of the Act to undertake partial pillar extraction at the mine was granted on the documentation filed by the mine, including the risk assessment prepared by Hawcroft Miller Swan. Mr Milner noted that nobody from the Department of Mineral Resources drew attention to any deficiency in the risk assessment document. 128 Before pillar extraction commenced at Bellambi West, Mr Milner engaged and worked with the mine's geo-technical engineer, Dr Shepherd to prepare pillar extraction operating procedures. Mr Milner regarded Dr Shepherd as having specific expertise in pillar extraction and being the most experienced person in that field in Australia. The operating procedures were developed between the two of them over a period of a month or more. 129 Before partial pillar extraction commenced at the Bellambi West Mine, Mr Milner had arranged for training to be given to the entire workforce in the appropriate techniques for that method of mining. He had designed some components of the training in conjunction with Dr Shepherd and had relied on the University of New South Wales through Professor Hebblewhite and Dr Shepherd. Mr Milner regarded the University of New South Wales and Professor Hebblewhite in particular as having a good reputation in the field of pillar extraction and they were regarded as competent to provide this training. Mr Milner relied on Professor Hebblewhite and the University of New South Wales to design an appropriate course to train the workers at the mine. Mr Milner had explained to Professor Hebblewhite that the mine was moving from first workings to pillar extraction, that there was a mix of skills with some men having pillar extraction experience and some that did not. What he was after was a training course to be presented to the senior supervisors and the workers. Mr Milner attended the course and regarded it as being appropriate for the purpose. The course was presented by Professor Hebblewhite and Dr Shepherd. It appears that on 27 November 2000, a two-three hour pillar extraction training course was given by Professor Hebblewhite and Dr Shepherd and on the following day, a course was provided entitled "Pillar extraction basic principles and practice for face supervisors". Mr Milner then used toolbox talks to follow up this training and once pillar extraction was commenced, he went underground to see the men working and to assess whether or not they had implemented the training that had been provided: for the first week he went underground every day for this purpose. At this time, Mr Milner had sent underground four highly experienced men in pillar extraction to work with the crews. No one drew to his attention that there was some ongoing safety issue related to either the inexperience of the miners working in the pillar extraction area or the failure of mine workers working in pillar extraction to absorb the training they had been given. His own observations found that there was nothing untoward about the way in which the mining was being conducted. In the first two weeks of pillar extraction, Mr Milner sat in on approximately 90 per cent of the toolbox talks for all crews because he wanted to make himself available for informal questions and answers as the crews obtained experience. 130 On 24 November 2000, Mr Milner conducted a toolbox talk and addressed each of the shifts. The toolbox talk dealt with pillar extraction operating procedures and took place in the surface crib room using a whiteboard and overhead projector. Overheads had been prepared and were projected on to the whiteboard to allow Mr Milner to draw diagrams and lead the men through the proper sequences of pillar extraction. This had occurred after Professor Hebblewhite's training course because the intention of that course was to give the miners a broad understanding of pillar extraction(sic). They were now taken into some detail and the intention was to go into specific details for the Bellambi West Mine and their own operating procedures. During this talk with each shift, Mr Milner dealt with the recovery of a stranded continuous miner. He told the workers that if the miner became immobilised they were to carry out their normal pre-inspections. They were then to look at the situation "as it would be different", assess it and then they could use the Fletcher roof bolter, hand held bolts or props or a combination and that the minimum was, as with any support, to create a safe work area. He talked about sounding the roof and barring down saying that before setting up, especially with the hand held bolter and props, to sound the roof and if it was "drummy", to bar down. He also went through a draft procedure of a buried miner and told them that if that situation occurred they were to stop and ring him at home. Mr Milner had frequently told the crews in toolbox talks that, if required, the props could be set "skin to skin", that is, next to each other always starting from the supported roof and working their way out. The process of using these props as temporary support was an incremental process: the crew were to sound the roof, bar it down, set a prop and then repeat the exercise. MINE MANAGER'S EVIDENCE - GENERAL ISSUES 131 There were a number of toolbox talks about numerous subjects that were constantly raising issues with the men and were conducted by Mr Milner or he participated in them. The men were repeatedly reminded of the need to sound the roof and to scale it down following a visual inspection and certain examples were cited from June 1999. The men were told to stop work and obtain assistance if it was difficult to assess or if there was a risk. In June 2000, there was a toolbox talk for all crews concerning the recovery of a broken down continuous miner where they were told not to expose themselves to the risk of working under unsupported roofs and an article about the subject from the Department of Mineral Resources was made available to the crews. 132 In the period from late 1999 to early 2000, Mr Milner made substantial changes in relation to training and approached the Joint Coal Board to ensure that he was complying with their training requirements. His changes were approved in that process. Mr Milner said that he read every shift Under-managers/Deputies daily reports on safety issues and said there were weekly strata reports that reviewed roof support and strata management. 133 The SWP to recover the continuous miner that was developed after the accident was said by Mr Milner to be almost identical to that designed for the cut and flit operation and there were no practical differences between the two procedures. At the time of the accident, the hand bolter and a steel were available at 519 Panel and there were other instruments present that could be used to sound the roof. The Fletcher bolter was approximately 30 - 40 metres from the site although it was not normally used in pillar extraction. When first purchased, the Fletcher bolter was only available in a few mines and the directors of the company did not raise objections to spending on such items that were recommended nor on spending on specialists like Professor Hebblewhite, Dr Shepherd, the University of New South Wales and Dr Seedsman. 134 Mr Milner estimated that each timber prop had a load bearing capacity of between 60 - 80 tonnes and Dr Shepherd had confirmed that figure. By his estimate, the prop used in the incident had a load bearing capacity 100 times the weight of the rock that fell from the roof. Mr Milner disputed that there was a higher or regional fall of goaf at the incident site as stated by Professor Galvin and in his view, the roof around the continuous miner "didn't look too bad". The roof was acting in the way that had been planned and there was not to be a quick fall of the goaf. 135 In relation to the content of the course presented by representatives of the University of New South Wales on 27 November 2000, the content of that course was notified to the senior Inspector of the Department of Mineral Resources. 136 In Mr Milner's view, if the roof had been sounded then the accident would not have happened. There was present at the site a pelican pick and it could have been used to sound the roof. The roof was stone at this position and Mr Milner had sounded the secondary roof under the material that had fallen and found it was sound. The risk of a shallow roof fall had been identified since August 2000 and had been spoken about at toolbox talks: the crews were clearly informed of the risk of such a roof fall. 137 Mr Milner was the most senior statutory official at the mine. On the day of the accident, Mr Baldwin was in Queensland: Mr Baldwin was not the superintendent or the assistant superintendent of the mine and there was no such position in the managerial hierarchy at this mine. Mr Baldwin could not direct Mr Milner how to run the mine nor did he have any practical pillar extraction experience but relied on the statutory officials at the mine. 138 Before the accident, Mr Gardner, the Mining Inspector, had not issued a notice alleging a deficiency in the risk assessment in the mine operation nor had he alleged a deficiency in the SWP or the recovery of a immobilised miner. Mr Gardner had not suggested that the recovery of an immobilised miner should be referred to an Under-manager for direction. 139 In relation to Mr Baldwin's safety reports to the Board, the information contained within them were usually provided by Mr Milner. It was Mr Milner who issued authorisations under the Mining Act to work in the mine but Mr Baldwin did not issue such authorisations. 140 Previous risk assessments conducted at the mine had been sent to the Mine Inspector and comments received from the Inspectors. In relation to the risk assessment attached to the s 138 application to undertake partial pillar extraction, Inspector Gardner made no comments about the risk assessment provided nor did he indicate any dissatisfaction with that risk assessment. 141 As part of the s 138 application, the risk assessment prepared by Hawcroft Miller and Swan consultants referred to a more detailed study being required when the panel and pillar design were finalised. On 15 November 2000, Professor Hebblewhite and Dr Shepherd provided a document that represented an independent review of technical submissions. This independent review was provided after initial approval had been granted for the undertaking pillar extraction mining. This report, however, dealt with structural issues, extraction methods and observations about the fault in the area, but did not deal with risk assessments and particularly methods of recovering a stranded continuous miner. It was stated to be concerned with "surface interaction effects" and not "in mine only" consequences. There were a number of drafts of the pillar extraction operating procedures that were discussed and gone through with Inspector Gardner of the Department of Mineral Resources and a number of aspects were reviewed in this process. These operating procedures were also reviewed with the assistance of Dr Shepherd and sometimes with the assistance of Dr Seedsman. Mr Milner invited Inspector Gardner to the presentations conducted on 27 and 28 November 2000 by Professor Hebblewhite and Dr Shepherd at the mine in view of the fact that they were two of Australia's leading experts in the field. The Inspector did not attend those presentations but Mr Milner expected Inspector Gardner to tell him if there were any deficiencies in the pillar extraction plan that was filed. The talks given on those two days were video taped and were to be used for new starters at the mine who were instructed to look at this material. 142 Finalising the pillar design did not involve Mr Baldwin. Only Mr Milner could suspend miners for disciplinary reasons and Mr Baldwin had no power in this regard. Mr Milner would inform him of actions taken but would not seek Mr Baldwin's approval for that action. Mr Milner believed that all the crew were qualified to perform the work and to retrieve the continuous miner by supporting the roof. 143 In cross-examination, Mr Milner said that as at December 2000 there was a SWP for the recovery of a immobilised continuous miner and that procedure had been provided to all crews in the course of toolbox talks: the procedure was provided orally with the assistance of a diagram. The procedure was that the crew were to assess the area and decide whether to use a Fletcher bolter, a hand held bolter or props. The decision was to be made by the Mine Deputy in consultation with the crew but the Deputy had the final say. The Deputy was not restricted as to how far out to go by propping and what was involved depended on each situation and the conditions that were present. Not all the crew had attended the various toolbox talks and for instance, Mr McAlary had not been present on three occasions but that was probably during a period when he was not employed at the mine. 144 The strata around 519 Panel was known to have laminates that were prone to falling and in the days prior to the accident it was know that some plys and laminates had fallen out from the roof. Mr Milner was of the firm view that the miners would receive adequate notice of a goaf fall because the roof would indicate what was happening. This did not apply to minor falls: it was possible for a goaf fall to happen without notice but that was not something that had occurred in his experience. 145 With the possible aid of Dr Seedsman, Mr Milner said that he drafted the recovery plan for the continuous miner after the accident and sent it to Mr Barrowclough of the Department of Mineral Resources. The plan involved moving the BLSs and using a Fletcher bolter to the rear of the miner. This approach was adopted because Mr Milner was concerned that there would be many people coming to the area that had no underground experience and he therefore proposed a higher level of support with a deliberate over support of the area. After the Fletcher bolter was used to the rear of the miner, it was proposed that hand bolting would then be used and also breaker props. Mr Milner had written a procedure for the cut and flit operation for the recovery of a continuous miner and that had been modified orally in toolbox talks. Those toolbox talks for the procedure were given on 24 November 2000. The procedure spoken about at the toolbox talks was to inspect the roof, with the ability to use the Fletcher bolter or the hand held bolter and Mr Milner had added the use of props - this was in addition to the cut and flit operation. The general procedures were the same for cut and flit and partial pillar extraction operations but they all depended on the circumstances faced by the miners. The miners were told that if the crew was unaware of anything or did not feel able to deal with an issue then were to cease work. 146 People had been recruited at the mine for their general mining skills and not just for their experience in cut and flit operations. Mr Milner said that the mine started to look for experienced pillar extraction miners in the period from February to April 2000. Closer to the time of using pillar extraction in 519 Panel, Mr Milner asked for miners with pillar experience to come forward although he accepted that there might be a need to upgrade their skills. The fundamental principles of pillar extraction mining had not altered in 100 years and had previously been performed some 20 years earlier at the Bellambi West Mine where in that period there was extensive pillar extractions. Mr Aspinall and Mr Pearce had no experience in pillar extraction but they were experienced miners. Mr McAlary had pillar experience in 1990 for a period of 12 months and Mr Zgorzelski had pillar experience at three mines. Mr Milner accepted that, in pillar extraction operations, there was a wider area of unsupported roof. VIEWS EXPRESSED BY THE DEPUTY MANAGER, THE TRAINING OFFICER AND THE DISTRICT INSPECTOR 147 In relation to processes at the mine, it was agreed that certain extracts from statements made by three people could be tendered in evidence. Mr Grey-Spence, the Deputy Manager of the mine and next in seniority after Mr Milner, said that the continuous miner was a cut and flit miner and was designed for stone to fall on it without damaging the miner. When asked who on the afternoon shift he considered to be competent to assess the roof conditions of the 519 Panel, Mr Grey-Spence stated that Mr McAlary was obviously a qualified Deputy, had experience and had been "signed-off" in that role. Mr McAlary had worked on the Panel for a while and was "an intelligent man" and they were doing many risk assessments. Mr Aspinall was "an outstanding coal miner" and understood roof conditions and the subtleties of mining to a very high degree. Together, they had the core of a very good risk assessment group. 148 In relation to the use of timber props to obtain access to a stranded continuous miner, Mr Grey-Spence said that timber props had been used traditionally to recover miners and they were the main form of support in pillar extraction for many, many years. 149 When asked whether he was concerned that pillar extraction had commenced prior to the procedures having been fully developed and the men trained in those procedures, Mr Grey-Spence said that, for many years, pillar extraction had been performed without safe work procedures to recover continuous miners and he had worked extensively in the pillar extraction method. Each recovery of a miner was described as being different and there needed to be a "mini risk analysis" on site in order to work out how to retrieve the miner. If timber props were required to support the roof in order to obtain access to a stranded continuous miner in a pillar lift, Mr Grey-Spence said that a formalised standard timbering diagram could be prepared to indicate what was the best option but the difficulty was that each miner stopped in a position that could not be forecast and someone had to stand there and get the roof support in the best position for the roof conditions that were present and those conditions varied as did the position of the miner. The aim was to expose the workmen to the minimum risk so that people present who had to make the decision - they could be given a generic diagram of a safe working procedure and there was now a generic diagram. The BLS unit could have been brought forward to provide extra strength and support when the crew were timbering out but there was a risk that when pressure was taken off a chock, that the strata would relax and that changed the situation and what was previously stable was no longer stable. It was a calculated risk when on site and the BLS unit was moved. The people present were doing many risk assessments in that situation. 150 Mr Keith Murray was the training co-ordinator at the Mine. In relation to the consultant's report supporting the s 138 Application and the note that the risk assessment considered generic risks to pillar extraction and that a more detailed study would be required when the panel and pillar design was finalised, Mr Murray stated that such a more detailed study was conducted by the management at the Mine but not by the consultant. He was not sure that it was in the format of a risk assessment and documented but there were some toolbox talk notes about different changes to procedures that the mine adopted after the size of the pillars were finalised and the location of roadways and how the mine was going to proceed with the actual Panel and the details got down to the use of a "ram car" that was introduced as another piece of equipment. He regarded the study as being on other levels and aspects looked into "in some depth". In that sense the risk assessment that was conducted by various skilled people, including himself, Mr Milner, Mr Grey-Spence the Deputy Manager, possibly Mr Pearce as well as a number of co-ordinators, had looked at a couple of issues. 151 When the stranded miner involved in this incident was recovered, Mr Murray confirmed that it was recovered without incident by timbering out and propping out to the miner. It was one of three methods that had been suggested to the miners and the decision to be made was based on their position in the panel and what equipment was available. They could use the Fletcher bolter, the hand held roof bolter or they could timber prop their way out - all of the methods were acceptable in recovering a disabled miner. 152 Mr Murray agreed that a written procedure for recovery of an immobilised continuous miner under unsupported roof would be used as a training tool and used in conjunction with verbal training by using teaching skills to impart those skills to the miners involved. He said that it was part of Professor Hebblewhite and the University of New South Wales course that a number of scenarios were examined that basically dealt with some recovery options and all the miners went through that exercise. He understood that those presentations included a process for the recovery of an immobilised miner from a pillar lift in general terms but not specific to the Bellambi West Mine. That training covered the topic and the issue was covered in conversation during the course presented by the University of New South Wales. 153 Allied Coal had gone to extreme lengths to recruit ex-miners with pillar experience and was fortunate enough over the preceding two years to be able to do so. A number of collieries had closed down and they had a number of experienced pillar extraction miners who were actively recruited. Previous experience and previous training was therefore important in assessing training requirements at the Mine. Also, under the training scheme there was a buddy system that was introduced because of the nature of underground mining. It was common practice throughout all the coal mining companies that experienced miners would team up with less experienced miners as a means of showing them the hazards: this was on the job experience. At this Mine, the crews were established so that there was a percentage of experienced miners within each crew and a percentage of miners with less experience but the Mine was certainly looking at the experienced miners for leads as to what should be done. Mr Aspinall had no experience in pillar extraction but both Mr Aspinall and Mr Rowles were extremely competent in general mining duties. The pillar extraction component of mining was basically irrelevant to what happened in the incident. In relation to the setting of a prop, both Mr Aspinall and Mr Fraser were more than adequately placed to understand the dangers of setting a prop and sounding the roof and were more than component in all aspects of that particular task. 154 Mr Leslie Gardner was the District Inspector. He had been appointed District Inspector for Coal Mines for the Bellambi West Mine when the s 138 Application had been approved. His role was to make sure that the sequences appeared to be correct and that the layout of the Panel was in accordance with the pillar extraction design manual published by the Department. He sought input from Mr Ian Anderson, a Senior Inspector of Coal Mines (Special Duties) who had a great deal of input into pillar design and pillar extraction sequencing. Mr Anderson believed that the sequencing proposed was appropriate for the Panel design. On 28 November 2000, a document entitled "Pillar Extraction Operating Procedures" were confirmed by Inspector Gardner in his role as District Inspector. 155 In relation to the operation of s 102 of the Coal Mines Regulation Act, Inspector Gardner said that, in his experience, he could not recall ever seeing or having had submitted to him a set of support rules for the recovery of a miner out of an area of unsupported roof such as a partially extracted fender in pillar extraction. Section 102 required the Manager of an underground mine to make support rules with respect to the support of the roof and the sides of working places and roadways in the mine. Where support of the roof and sides of working places in an underground mine were to be removed under a system of mining, the Mine Manager was to include in the rules, provisions for the removal of that support. THE DIRECTOR'S EVIDENCE 156 Mr Baldwin was employed as a solicitor at the time of giving his evidence. His previous experience included joining Capricorn Coal between 1981 and 1985 in relation to open cut operations where he performed various technical services and in 1985 going to the Central Colliery. In 1987 he was appointed as Under-manager after having obtained his first class Mine Manager's certificate of competency. Between 1987 and 1989 he remained as an Under-manager and relief open cut manager and in 1990 returned to University to complete a Bachelor of Business degree. From 1991 to 1997, Mr Baldwin was a project manager for new mining operations for a number of companies. In 1997 he joined MacRaes Ltd in Perth as its general manager corporate in a gold operation and at the end of 1997 returned to the coal industry to the then Allied Operations. He was engaged as general manager corporate until sometime in 1999 and following a re-structure, he was appointed a director of Allied Coal and in November 1999 was appointed a director of Allied Coal, Allied Mining and a number of associated companies. In July 2000 he was appointed to the position of managing director, a position he described as being a corporate position and not a Corporation's Law position. From 2002, he had been in private practice in Queensland. In the position of managing director with the defendant, he did not have the additional powers that the Corporations Law provided in relation to a managing director and he was therefore simply a director. Mr Baldwin described the Allied group as "extensive" in terms of the number of companies making up the group. 157 Before the accident, Mr Baldwin's normal place of work was in an office at Russell Vale on the coast side of the escarpment of Wollongong. While his office was not at the mine, the mine site was quite large and he visited the mine from time to time. He attended the mine for the purpose of communicating with Mr Milner as the Mine Manager and General Manager. The Mine Manager and the statutory officials, including the Deputy, were located at No 4 shaft at the mine as their normal place of work. Mr Baldwin attended the mine to receive updates and information from Mr Milner. 158 On 20 December 2000, the date of the accident, Mr Baldwin was not at the mine nor in New South Wales but was in Queensland. He had flown to Queensland three days earlier and had heard about the accident from Mr Milner who telephoned him at 11.00 pm. The next morning Mr Baldwin made arrangements to return to the mine and on his return on 21 December 2000, he attended the accident site with two other directors and Mr Milner. The other two directors had not been prosecuted in relation to this accident. 159 In terms of experience in the mining industry, Mr Baldwin had long wall mining experience but had not worked in full or partial pillar extraction operations. 160 In day-to-day contact with the Mine Manager, Mr Baldwin would be informed about the performance of the operation and its budget and the financial performance of the operation. If there were any significant issues that should have been brought to his attention, including industrial matters and production reliability issues then they would also be discussed. The discussion was primarily about equipment reliability. Mr Baldwin was one of the co-signatories for the occupational health and safety policy for the Bellambi West Colliery. He had signed that document because it was believed at the time that it ought to carry the weight of the board and that, accordingly, a director ought to sign it. He did not know who formulated that policy. Mr Baldwin described his involvement in the company as being limited to the commercial aspects, especially in relation to the dry hire of equipment including the Fletcher bolter which he had purchased through another related company. He had no involvement in work procedures. Mr Baldwin understood that the Fletcher bolter was a piece of equipment developed for cut and flit operations and he had attended the United States where the equipment originated and observed it in operation. 161 In September 1997, as group general manager corporate and while he was not a director of Allied Coal, he had informed Inspector Gardner of the Department of Mineral Resources of Mr Milner's appointment as the manager. Mr Baldwin did not know why he wrote that letter but at that time the director of the company was Mr Gordon and he suspected that Mr Gordon had given him the instruction to write that letter rather than doing it himself. Mr Milner was appointed general Mine Manager for Bellambi West by the board of directors. 162 The title of managing director or chief executive within the company was interchangeable but Mr Baldwin's duties were different to the other two directors who were not active in the day-to-day operation. The other directors had no day-to-day knowledge of what was happening in the mine. Mr Baldwin was not involved in making risk assessments of the mining operation. 163 The board of directors had made money available for the purpose of engaging consultants such as Hawcroft Miller Swan to undertake risk assessments and had also engaged professionals such as Professor Hebblewhite and Dr Seedsman. He was not sure of the amounts of money expended in relation to those matters but it was likely to be of the order of $200,000. There was no limitation placed by the Board on that type of funding or the use of external consultants. 164 Mr Milner was not present at all Board meetings but if he was available to attend he would do so. There may be occasions, because of the subject matter, where the Board would request his attendance, together with the manager of the coal handling operation plant. Mr Baldwin relied upon information obtained from Mr Milner about the operation of the mine in reporting to the Board. From time to time Mr Baldwin would require Mr Milner to provide information of that nature so that Mr Baldwin could report to the Board. For example, Mr Baldwin had received reports from Mr Milner about the s 138 application and the requirement for a risk assessment for that process. Mr Baldwin was also aware of the involvement and costs associated with Dr Seedsman and Dr Shepherd being engaged in the planning and review of the sequencing procedure for the partial pillar extraction proposal. While involved and knowing about these matters, Mr Baldwin said he had no expertise in terms of reviewing their input. It was never suggested to him that he should be involved in settling the pillar extraction design and sequencing. Mr Baldwin said that in his position he was not appointed as superintendent or assistant superintendent such that under the terms of the Coal Mines Regulation Act he was unable to give any direction to any person in the statutory framework of the mine: he had no capacity to direct crews nor could he direct safe working procedures nor could he direct what information, training and instructions should be given to the crews at the mine. His understanding was that only the statutory officials at the mine could give these types of directions under the Act. 165 When partial pillar extraction was proposed, Mr Baldwin understood that Mr Milner had experience in that field and he also understood that the process was to be adopted by which experienced people would be identified and allocated into the crews. He was aware that there were a number of very experienced miners employed. The consultancy of Hawcroft Miller and Swan was engaged for the purposes of ensuring that a system of risk assessment was introduced and documented to assist the Mine Manager with preparation of systems of work. He understood that when they were engaged for this task the consultancy had previously performed risk assessments for the mine. That information came through discussion with Mr Milner and when that risk assessment was conducted, Mr Baldwin was in no way involved and he had no experience or capacity to influence the considerations. Mr Baldwin understood that a panel had looked at the risks of this new operation and had identified 64 such risks. He stated that a very experienced panel had made that assessment and he was not competent to influence or change any of the matters that were raised by that panel. In fact, he relied upon the panel and the consultants in relation to an appropriate risk assessment. 166 Mr Baldwin said that he was not authorised to go underground and operate equipment although he probably had a visitor's induction to allow him to go underground. Anytime he proceeded underground he was accompanied by one of the statutory officials and more than likely that would have been Mr Milner. It was Mr Baldwin's understanding that Mr Milner had the responsibility before the accident for establishing the work procedure to recover an immobilised miner and that also extended to the information and instruction to be given to the crew in that regard. It was Mr Milner's responsibility to decide whether the Under-manager or someone above that level should be consulted during the process of recovery. The statutory officials had the authority to make decisions concerning the systems to be adopted in the recovery of a stranded miner and in his position as a director, Mr Baldwin could not interfere with the decisions of the statutory officials and could not issue instructions to them. In his position as a director, Mr Baldwin, to the extent that he was able, ensured that there was a competent and qualified Mine Manager appointed and relied upon that person to implement and monitor appropriate safety policies and strategies. 167 Before the accident, Mr Baldwin had not been approached by any mine inspector or union official regarding concerns about safety at the mine and he was unaware of any such processes although he would not expect to be approached because he had no authority in those matters. Despite having no statutory or operational roles in the mine, Mr Baldwin had attended a toolbox talk delivered by Mr Milner when the mine had achieved twelve months' lost time injury free. At that time, Mr Baldwin made it known to the miners that if there were any issues they had that they did not believe were being adequately addressed, they were able to contact him direct and he wrote his mobile telephone on the whiteboard. Prior to the accident, no miner had contacted him on that mobile telephone number or any other number. If contacted by anybody, Mr Baldwin would have taken the matter up with Mr Milner because he was the appointed Mine Manager. 168 In mid-October 2000, Mr Baldwin was contacted by Mr Milner and informed of a number of suspensions of coal miners. There was a possibility of some industrial action and Mr Baldwin was informed about that matter but he was not required to approve the suspensions. 169 In relation to the training given by Professor Hebblewhite and Dr Shepherd, Mr Baldwin did not attend those course but he was aware that those courses were to be provided. On one of the mornings he attended for a short period and was introduced to Professor Hebblewhite, staying for 10 to 15 minutes prior to the commencement of the training. He attended principally as a matter of courtesy but also because it was a major training exercise being undertaken on site with the University of New South Wales. It was never suggested to him by those who ran the course that the course was inadequate as a training vehicle or that it was not properly financed. 170 It was not uncommon for a continuous miner to stop any number of times for any number of reasons but Mr Baldwin was not involved in making a decision about the methodology and approach used for retrieving a continuous miner. That was to be the subject of a SWP and the statutory officials had to formulate such a document and in particular, the Mine Manager: that was something he could not influence. 171 In cross-examination, Mr Baldwin accepted that on a proper reading of s 53 of the Coal Mines Regulation Act he could give instructions to Mr Milner to respond to the Board's wishes but under a misapprehension, he had not done so in the past. It was also accepted that, in holding a first class certificate of competency limited to coal mining, Mr Baldwin was able to obtain any job in mining for which that certificate qualified him. A person may also be able to be appointed to a position in a mine conducting mining of which the holder had no experience and that appointment would be accompanied by a certain amount of upskilling. 172 Mr Baldwin was aware that remote controlled mining equipment, including the continuous miner, was liable to break down from time to time regardless of what type of mining was being undertaken. When partial pillar extraction was undertaken, he accepted that the circumstances of a continuous miner failing may differ from other types of mining and that could involve breaking down under unsupported roof. As a matter of theory, it was accepted that a continuous miner could be stranded in an extended area of goaf and therefore may pose different risks associated with its recovery to the risks faced if such a failure occurred in development mining. 173 In Mr Baldwin's view, the Department of Mineral Resources did not have an advisory role in the running of the mine but had a regulatory role. Mr Baldwin had sometimes accompanied Mr Milner underground to inspect areas where a new recovery was proposed in circumstances where that might require some formal consideration. That type of inspection allowed Mr Baldwin to better inform himself about the matter. 174 It was Mr Baldwin's understanding that there was an obligation on the employer to ensure that there was a safe system of work at the workplace and that the employer of the mining company was the Board. Mr Baldwin felt that, as a member of the Board, he was to look into questions of whether or not there were proper systems in place to ensure a safe system of work under occupational health and safety legislation and he did that, not by only appointing competent people, but by being aware that Hawcroft Miller Swan, Consultants were engaged for a considerable amount of time on a wide scope to undertake risk assessments and training. He was also aware that Professor Hebblewhite and Dr Shepherd were engaged for the purposes of training being representatives of the University of New South Wales and being the pre-eminent training organisation for the purposes of pillar extraction processes. He was also aware that Dr Seedsman was extensively involved in geo-technical assessment and review of the operation. He was aware that, for the s 138 application to be approved, a risk assessment was required to be undertaken and once completed the risk assessments would be reviewed in the process of obtaining approval. There were management systems in place at the mine for a raft of safety procedures, there was a training scheme in operation audited on at least two occasions, there were induction systems and authorisations for use of equipment and any number of safe working procedures for the operation of the mine. 175 In relation to the s 138 application, Mr Baldwin was unable to recall whether his attention had been specifically drawn to a note stating that the risk assessment was in relation to generic risks and in broad terms there would need to be a further study. Mr Baldwin did not read that note to say that the "study" was in relation to a risk assessment because the consultants had been engaged for that task and he would have expected them to quite specifically state that a further detailed risk assessment was necessary. Mr Baldwin had no recollection of reading in detail the risk assessment that was provided but he was aware that it was completed and the application was granted and therefore the assessment was satisfactory. He did not look at the risk assessment because it had been undertaken by a panel of competent experts in their field and the s 138 application had been granted. He expected that if anything further needed to be addressed it would have arisen in that process. 176 While he did not read through the risk assessment provided by the consultants, Mr Baldwin believed he had discharged his obligation to ensure that there was a proper system in place to ensure the safety of workers under occupational health and safety legislation by relying on a raft of competent people engaged for the process of risk assessment and the preparation of the s 138 application. The application in its final form had been reviewed by a raft of competent experts and if any issue had arisen, including the risk assessment, he expected it to be raised in that process. In relation to the note in the risk assessment referring to a further study, Mr Baldwin had not read that note at the time and did not take steps to enquire whether such a study had been undertaken. 177 Before the accident and during 2000, there had been an audit on training at the mine but there had been no other audit directed at safety, including plant. An audit usually arose when an issue needed to be considered but the mine had been running for over twelve months injury free with no lost time and there was no reason for the Board to flag any specific area that needed attention over and above that being directed by the managers at the mine. In terms of its safety performance, the mine was operating better than any other mine in the country and so there was no reason for the Board to bring in third party auditors. Although Mr Baldwin could not recall when it occurred, Hawcroft Miller Swan had undertaken a substantial review of safety systems and it was unlikely that happened in 2000. 178 From time to time, Mr Baldwin did attend toolbox talks but he was unaware of any action to determine which miners actually attend and whether they were gaining anything by listening to the talks. Mr Baldwin made no enquiries about those matters. The question did not arise as to whether the safety message was getting through to the workforce because of the mine's good safety record - the safety message had to be getting through to the workforce or the safety record could not have been achieved. Mr Baldwin rejected the notion that safe operating results in cut and flit operation did not mean much for partial pillar operations, noting that safety was a culture and a culture of safety had been engendered to produce those safety results. He was also aware that the men had accepted the suspensions as a result of a breach of the safety rules without engaging in industrial action and that indicated to him and the Board that there was an acceptance of the system and culture of safety. If the rules were broken, there would be ramifications. 179 It was understood that when partial pillar extraction was to be undertaken, there would be men in the mines who did not have that experience although Mr Baldwin expected that there would be a mix of experience and inexperience. For that reason the University of New South Wales was engaged to conduct the necessary training. Mr Baldwin did not look into the question of whether everybody was actually attending those courses or enquire whether they understood what they were being told. He expected from the status of the course and those presenting it that those issues would be addressed. As to whether people actually attended, Mr Baldwin relied on the managers to ensure that occurred but he did make an enquiry about competency testing and he understood that there were competency tests undertaken arising out of that training scheme. That system may not necessarily have involved partial pillar mining but there was a system of competency testing. 180 In re-examination, Mr Baldwin stated that there were over 50 pieces of equipment at Bellambi West which was a mine of significant size and he did not expect to be personally notified every time there was a difficulty with each piece of machinery. The mine had employed Mr Keith Murray as a safety officer and an additional position had been authorised for his employment. The purpose of creating that position was for training and safety documentation procedures. There had been an annual audit of safety and no one from the Department of Mineral Resources or the Joint Coal Board suggested to Mr Baldwin or the Board that there should be more than an annual audit.

PROFESSOR GALVIN'S REPORT 181 Professor Galvin was the Professor of Mining Engineering at the University of New South Wales and the managing director of Galvin & Associates Pty Ltd. He held a number of academic qualifications including B.Sc (Mathematics) from the University of Sydney (1973), B.E (Hons 1), Mining Engineering, University of Sydney (1975), Ph.D Mining Engineering (Rock Mechanics), (University of Witwatersrand (1981) and was a Churchill Fellow (1988). The Professor was a Fellow of the Institute of Engineers Australia and a Fellow of the Australasian Institute Mining Metallurgy and held Certificates of Competency as a colliery manager, a colliery under-manager, a colliery Deputy and mines rescue. He had been a member of the Pillar Extraction Working Party established by the Chief Inspector of Coal Mines in New South Wales in May 1991 to review New South Wales pillar extraction mine layouts. In that connection he had been an organiser and member of an overseas study tour investigating pillar extraction principles and practice in July 1991 and had been a member of the Pillar Extraction Industry Committee established by the Chief Inspector of Coal Mines NSW to develop a Code of Principles for pillar extraction in 1991. Between 1995 and 1998 he had been a member of the New South Wales Pillar Extraction Committee, New South Wales Coal Mining Inspectorate, Department of Mineral Resources and since 1996 had been a statutory member of the New South Wales Coal Mines Qualifications Board. 182 In addition to a variety of other appointments, the Professor had been involved in international consulting to over 50 organisations in areas related to mining and geo-technical engineering, risk assessment, accident investigation, occupational health and safety, strategic management, education and research. He had been involved in the preparation of expert opinions on behalf of plaintiffs and respondents in over 60 legal matters relating to engineering and industrial issues, risk management, insurance claims and occupational health and safety prosecutions amongst other matters. 183 From approximately March 2003, it appears that Professor Galvin was asked to provide an expert report in relation to the incident that occurred on 20 December 2000 at the Bellambi West Mine that was to be the subject of an occupational health and safety prosecution. The Professor was provided with a number of documents, including Mr Sheehy's report of his investigation into the accident and statements made by various persons involved in the incident including Mr Milner and Mr Baldwin. The use of statements and materials said to be provided under the protection of s 60(2) of the Coal Mines Regulation Act were challenged during the proceedings but the objection to the receipt of the report into evidence was rejected (see chapter entitled "A Further Challenge to the Proceedings: a Claim for Privilege). 184 Ultimately, the Professor was instructed to provide a report in relation to this incident based on a number of assumptions. Those assumptions were as follows: i The defendant (Allied Coal Pty Ltd) was the mine owner of Bellambi West Colliery at all material times and was the employer of the personnel involved in the mining operations. ii The colliery was an underground coal mine located approximately 75km south of Sydney in the southern coal fields. The mine extracted coal in the Bulli seam. iii On 23 June 2000 the DMR received an application to extract coal reserves at the mine by means of pillar extraction. The application was accompanied by a risk assessment undertaken in May 2000 on the proposed pillar extraction and two geotechnical reports dated, respectively, 19 June 2000 and 20 June 2000. iv The risk assessment report did not identify the risks associated with a continuous miner (CM) breaking down. v The risk assessment report included a note to the effect that the risk assessment considered generic risks to pillar extractions and that a more detailed study would be required when the panel and pillar design was finalised. A further risk assessment had not been developed as at 20 December 2000. vi As at 20 December 2000 the mine had not developed training modules for specifically addressing the training needs of employees in the safe retrieval of a CM that had become immobilized (stranded) under unsupported roof during pillar extraction operations. vii As at 20 December 2000 there was no specific recovery procedure for a stranded CM and no requirement for the under-manager to be notified should a CM become stranded. viii On 17 November 2000 timber props were used to support the roof to gain access to a CM in a cut and flit system of mining. An electrical report concluded that the CM was immobilised by a piece of coal interfering with the mode switch. ix On 18 November 2000 the CM was immobilised by falling material hitting the stop button. Timber props were again used to support the roof to gain access to the CM in a cut and flit system of mining. x Roof conditions at the mine could change from sandstone to laminate. xi Roof falls had occurred at 519 Panel as described in documents contained in the Tender Bundle. xii The roof conditions immediately prior to and as at 20 December 2000 were as described in documents contained in the Tender Bundle. xiii On day shift and afternoon shift of 20 December 2000, before proceeding to 519 Panel where they were to work, crew members were addressed by the Project Manager in a tool box talk and instructed to leave small fenders in areas of bad roof, pursuant to section 4.6 of the Pillar Operating Procedures. xiv Fenders were left between lifts on the dayshift of 20 December 2000. xv The afternoon shift of 20 December 2000 did not leave a stook (fender) between the lift associated with the fatal accident and the preceding adjacent lift. xvi The intersection of the pillar extraction lift associated with the fatal accident and the main access road (9 cut-through) to the workplace was not in accordance with design. An excessive amount of the corner of the pillar leading into the lift had been mined. xvi The Bellambi West Colliery Cut and Flit Safe Job Procedures (SWP 5/1782) contained a written procedure for recovering an inoperative CM from under unsupported roof in a cut and flit environment. The procedure requires the use of a Fletcher bolter equipped with temporary roof support followed up by hand bolting. xviii The Mine Manager modified the procedure in toolbox talks and safety meetings held in June and October 2000. xix The modified procedure called for the use of timber props to support roof when accessing a CM under unsupported roof. It is to be assumed that the procedure was summarised in the terms: "Two rows of props, driver's side [i.e. right hand side], straight out" [i.e., by the shortest route]. xx On 24 November 2000 the Mine Manager and Project Manager delivered a toolbox talk on pillar extraction operating procedures to the nominated pillar extraction crews. xxi On 27-28 November 2000 a Coal Industry Training Course - UMRC0011/1, "Pillar Extraction - Basic Principles and Practice for Face Supervisors" was held at the mine. The two principal supervisors in the afternoon shift crew, Deputy McAlary and production coordinator Rowles attended the abridged version of the course. The course highlighted the risks associated with roof fall with pillar extraction mining. It did not address the recovery of a CM from a lift. xxii On 1 December 2000 the Chief Inspector of Coal Mines approved an application by Allied Coal under s.138 of the Coal Mines Regulation Act 1982 for pillar extraction mining at Bellambi West. xxiii On 20 December 2000 Gregory Aspinall was working as a Miner operator on the afternoon shift production crew for 519 Panel. xxiv Before proceeding to the panel the crew were addressed by Michael Pearce, Project Manager, in a tool box talk and instructed to leave small fenders in areas of bad roof and as to the safe positioning of operators. xxv The afternoon shift crew on 20 December 2000 were: Justin Rowles Production Co-ordinator James McAlary Deputy Gregory Aspinall Miner operator Robert Monk Fitter Gavin Pearce Fitter Thomas Fraser Machineman Richard Zgorgelski Machineman xxvi Prior to pillar extraction commencing in 519 Panel on 1 December 2000, none of the afternoon shift crew had prior experience with extracting coal pillars by taking long lifts left and right using a remote controlled CM and three mobile breaker line supports. xxvii None of the afternoon shift had been engaged previously in any form of pillar extraction at Bellambi West Colliery prior to pillar extraction commencing in 519 Panel on 1 December 2000. xxviii None of the afternoon shift had been engaged previously in any form of pillar extraction for at least four years prior to pillar extraction commencing in 519 Panel on 1 December 2000. xxix At approximately 9pm on 20 December 2000 when the Afternoon Shift crew was on duty, Gregory Aspinall was engaged in extracting coal in the 519 Panel when the remote control CM he was operating failed to respond to commands from the remote controlled transmitter and became immobilised some 15 m from supported roof. This was caused by a piece of coal entering in behind the guarding on the control panel and affecting the Mode selection switch on the side of the CM, although the cause of the failure was not known at the time of the breakdown. xxx The goaf in the sub-panel between 8 and 10 cut-through was still open. It had not caved. xxxi The crew decided to approach the CM by setting two rows of props straight out from the closest supported roof to the "driver's side" of the CM as per the modified cut and flit recovery procedure. xxxii There was a Fletcher Bolter present in 519 Panel at the time. xxxiii This type of machine had been used to install roof support when the panel was developed at the site of the incident. It incorporated a hydraulic jacking system for providing temporary support to operators engaged in installing roof support. xxxiv Its precise location and availability to the crew are not known. xxv Messrs Aspinall and Rowles were in the process of installing the first timber prop in front of breaker line support No 3 when the roof fell without warning. xxxvi Gregory Aspinall was at that time supporting the bottom of the prop and was leading the prop into position. The bottom of the prop was positioned at a distance of approximately half a metre out from the last lien of roof bolts. As Justin Rowles reached the roof with the top of the prop a piece of stone dislodged from the roof. The two men were struck by slabs of rock of varying weight and size but less than 300mm in thickness. xxxviii Mr Aspinall received fatal injuries. Mr Rowles was seriously injured. xxxviii Subsequently the Fletcher Bolter was used when bolting the area around the immobilised CM prior to ultimately recovering it from the lift. 185 On or about 22 March 2005, Professor Galvin delivered his report into the incident at the Bellambi West Mine that occurred on 20 December 2000. His conclusions were as follows: A well documented history of roof behaviour in 519 Panel had been established prior to 20 December 2000. Broken roof and falls of roof had been recorded in the vicinity of the accident site on a number of occasions during both roadway development and pillar extraction prior to the accident. This history causes me to be of the opinion that: i. The occurrence of the roof fall associated with the incident on the 20 December 2000 in 519 Panel was foreseeable. ii. In light of the large mining spans associated with pillar extraction in 519 Panel and the nature of the immediate roof, the occurrence of a roof fall when lifting off in 519 Panel was foreseeable to the extent of being probable. iii. It was foreseeable that a roof fall in 519 Panel could possess sufficient energy as to present a grave risk to the health and safety of any person exposed to it. It was well recognised and documented in the NSW underground coal industry prior to the incident that a CM could become immobilised in a pillar extraction lift for a range of reasons. In my opinion: i. The probability of the CM becoming immobilised in a pillar extraction lift in 519 Panel was clearly foreseeable. ii. Given the history of roof instability in 519 Panel, there were foreseeable risks associated with recovering a remote controlled CM that had become immobilised under unsupported roof in a pillar extraction lift in 519 Panel. iii. The need to have a Safe Work Procedure (SWP) to manage risk in these circumstances had been well documented for some time prior to the incident in 519 Panel on 20 December 2000. iv. This documentation was of a nature and form that was readily available to the Defendant prior to 20 December 2000. Risk assessment is the process of identifying hazards, assessing the risks associated with these hazards on the basis of probability of occurrence and consequences of occurrence and identifying measures to control the risks. Hence, the development of SWP's should be underpinned by risk assessment. I consider that: i. The risk assessment conducted into pillar extraction at Bellambi West Colliery in May 2000 was deficient because the risks associated with recovering an immobilised CM from under unsupported roof during pillar extraction were not identified in the risk assessment. ii. A review of the May 2000 generic risk assessment should have been undertaken once the pillar extraction layout (panel and pillar design) had been decided. The Bellambi West Mine Strata Management Plan, Revision 2, dated 17/8/2000 which was in force as at 20 December 2000 only addressed the support of first workings (conventional mining, cut & flit) and longwall mining. It contained no provision for the support of (secondary) pillar extraction workings in general and pillar lifts in particular. In my opinion, irrespective of the interpretation placed on the need to have approved Support Rules in place for entering a pillar extraction lift to recover an immobilised CM, there was a requirement under the Coal Mines (General) Regulation, 1999, for the owner of the mine to have in place a SWP for recovering an inoperative CM from under unsupported roof in a pillar extraction lift. As at 20 December 2000, there were many foreseeable mechanical, electrical and mining reasons for a CM to become immobilised under unsupported roof. The incident at Bellambi West Colliery on the 20 December 2000 was associated with a control button having being activated by falling material. This possibility was known since that same machine had been affected in a similar manner twice in the preceding five weeks. The intersection of the pillar extraction lift associated with the incident and the main access road (9 cut-through) to the workplace was not in accordance with design. One effect of this was to increase the span of the roof between the front of the Mobile Breaker Line Support (BLS) and the solid pillar (fender). Consequently: i. The increased roof span increased the likelihood that a roof fall could occur in front of the BLS. ii. This risk was foreseeable, having been documented in an industry manual for pillar extraction.

iii. This risk needed to be considered when assessing how to safely access the immobilised CM from in front of the BLS . The Bellambi West Colliery written procedure for recovering an inoperative CM from under unsupported roof in cut and flit mining was modified prior to the accident and could be summarised in terms of "Two rows of props, driver's side straight out". There were very significant differences between the cut and flit mining system and mining environment and the pillar extraction mining system and mining environment at the site of the incident. I have been asked to assume that the cut and flit recovery procedure was applied by the mine workers to recovering the CM immobilised in the pillar extraction lift on the 20 December 2000. It is my opinion that as a result of the Defendant failing to identify risks associated with recovering an immobilised CM from a lift in pillar extraction and to develop a relevant SWP for this task: i. The 519 Panel crew were unguided and left to their own devices and planning. The persons to whom the decision making was left were not trained or competent for the circumstances that confronted them. They adopted a procedure that was devised for recovering an immobilised CM from a significantly different mining environment. ii. Any procedure for recovering an immobilised CM in a pillar extraction setting should have been subjected to an on the job risk assessment to verify that it was an appropriate methodology. iii. The procedure actually employed was not appropriate to the circumstances. iv. The guidance provided to the crew before the incident with respect to recovering an immobilised CM was misleading for the pillar extraction circumstances in 519 Panel. It exposed them to significant risks. v. These risks were associated not only with a shallow fall of roof, as occurred, but also with a higher and more regional fall of roof, that is, a goaf fall. vi. Significantly greater and more risks are potentially associated with a goaf fall. vii. There was an existing experience base of these risks in the Australian underground coal mining industry to alert the Defendant to them. viii. The crew lacked adequate guidance from an Under-manager or more senior mining official as to how to recover the immobilised CM from the pillar extraction lift. They required a procedure to be in place for carrying out a proper evaluation of the task of recovering the CM. ix. The Defendant did not plan for the circumstances, having regard to the potential dangers that were foreseeable and serious and could expose employees to grave risk of injury if not diligently planned for and managed.

The Fletcher Bolter was available in 519 Panel on the day of the incident. It was used to access the CM following the incident. Even though the immediate roof had fallen to a height of some 300 mm, the area about the CM was still bolted on about a 1.5 m grid. It is likely that some pieces of rock that fell at the time of the incident may have otherwise had two or more bolts inserted in them if the Fletcher Bolter had been used initially to systematically support the area behind the CM. Alternatively, if this stone had fallen prior to or during installation of the roof bolts, the operators would have been protected from it by the hydraulic temporary support system at their work station on the Fletcher Bolter. 186 In the detailed reasoning of the report, Professor Galvin dealt with a number of issues including industry guidelines and standards and expressed a view of how they were important in reaching his conclusions about the inadequacy of the procedures at the mine when recovering a continuous miner from under unsupported roof in partial pillar extraction. The Professor spoke of the February 1998 guidelines for the use of remotely controlled mining equipment and the recommendation that a safe system of work should be developed to recover mining equipment being operated by remote control that had stopped in a dangerous location, for example, under unsupported roof. 187 In September 1998, the National Black Coal Training Package contained a competency unit dealing with non-routine recovery of buried or immobilised equipment: the training included safety information and procedures assessed or applied throughout the work and preparation of a recovery plan confirmed as necessary by site inspection and appropriate authorisation obtained before proceeding. Also, in September 1998 the Department of Mineral Resources issued an assessment document to accompany the guideline which emphasised that it was extremely important that all underground mine sites where mining equipment was being operated under remote control were to have systems and procedures ensuring that the system of work used for remotely controlled mining equipment was suitably documented and enforced and operators were properly trained in its use. In relation to equipment recovery, the assessment posed a number of questions including whether a procedure had been developed for the recovery of mining equipment from dangerous locations and that such a procedure should cover notification of a recovery situation, the persons authorised to take charge, the methodology for recovery and precautions to be taken. Professor Galvin also noted that on 27 November 2000, Professor Hebblewhite and Dr Shepherd had presented a training course at the Bellambi West Mine that included training notes dealing with a manual on pillar extraction and these advised that, when extracting fenders using a remote controlled continuous miner, the issues to be considered were the position of the machine operator and other face workers and how the machine would be recovered if power was tripped. 188 In relation to the risk assessment for recovering an immobilised continuous miner, Professor Galvin referred to Clause 6 of the Coal Mines (General) Regulation 1999 requiring the owner of the mine to ensure that risk to health and safety at the mine were regularly assessed and that identified risks were dealt with in order of priority: firstly, to eliminate the risk; secondly, to control the risk at its source; thirdly, to minimise the risk by means including the design of safe work systems; and fourthly, so far as the risk remains to provide for the use of personal protective equipment. These steps were to be taken having regard to what was reasonable, practicable and feasible and having regard to good practice and the exercise of due diligence. Professor Galvin pointed out that the May 2000 risk assessment supplied to the mine owners on the introduction of pillar extraction at the mine identified the risk associated with a continuous miner becoming buried during pillar extraction but no existing controls were identified. A potential control was identified to be the development and implementation of an SWP for recovering buried machines. It was noted that the risk associated with a continuous miner becoming immobilised under unsupported roof during pillar extraction was not identified in the risk assessment. 189 The development of the use of continuous miners beginning with driver-operated miners was dealt with in Professor Galvin's report and it was noted that, at that time, mostly any recovery action necessary would take place under supported roof. The Professor was unaware of any requirements placed on a Mine Manager to develop and seek approval of support rules specifically concerned with recovering such a machine if it broke down under unsupported roof and each case was assessed on its own merit and a plan for recovery of the machine was devised at the mine's site. From his experience gained from management roles in pillar extraction operations, by serving on the Chief Inspector of Coal Mines Pillar Extraction Committee and reviewing a number of safe working procedures relating to the recovery of an immobilised continuous miner from unsupported roof, it was the Professor's understanding and experience that SWPs for recovery of an immobilised continuous miner for unsupported roof were required in order to fulfil the requirements of Clause 6 of the Coal Mines (General) Regulation. It was the Professor's view that, under the Regulation, it was the obligation of the owner of a mine to have in place a safe job procedure for recovering an in-operative continuous miner from under unsupported roof in a pillar extraction lift. 190 It was noted in the report that the mine had a written procedure for recovering an inoperative continuous miner from under unsupported roof: the procedure provided for supporting the area using the mobile bolter to the back of the miner, then the use of hand held bolters to the point on the miner where repairs were to be made. Professor Galvin, acting on assumptions he was asked to make, proceeded on the basis that the Mine Manager modified this procedure in toolbox talks and safety meetings held in June and October 2000. The assumption was that the modified procedure called for the use of timber props to support the roof when accessing the continuous miner under unsupported roof and was summarised as "two rows of props, driver's side straight out". This was the procedure assumed to be applied by the 519 Panel crew on 20 December 2000 when the accident occurred. The Professor did not accept that as being an appropriate procedure to apply to the recovery of a continuous miner immobilised in a lift (that is, in partial pillar mining) because that procedure did not reflect the performance criteria of the National Black Coal Training Package Competency Unit and because the procedures were not subject to a risk assessment. In addition, there were very significant differences between the cut and flit mining system and its associated environment and the pillar extraction mining system and mining environment at the site. The unsupported roof in the cut and flit mining system had maximum dimensions giving an area of 75 M². The unsupported ground (goaf) at the instant site was in the order of 2000 square metres. Therefore, the risk of a roof fall in the pillar extraction situation was significantly greater because the spans of the excavation were significantly greater, the weight of unsupported strata was significantly greater and the significantly greater area of unsupported roof introduced the possibility of additional roof failure modes coming into play. 191 In pillar extractions there were additional risks potentially associated with a roof fall extending to a much greater height than under cut and flit mining. In the cut and flit mining system the unsupported roof was surrounded by solid coal on three sides meaning that props set to recover a continuous miner were located close to two solid rib lines. Further, in the cut and flit environment at the mine, props were required to support and hold in place the immediate roof strata but in pillar extraction they were almost invariably required to take on added functions. In some circumstances this may include supporting a greater thickness of immediate roof that is prone to fall as a result of the increased mining spans. In most circumstances the props have also to act as "breaker props", thus serving to "snap off" a goaf fall and prevent it from entering into the work area. When the props were used as breaker props, it was important that the props were set as close as possible to the solid ribside. Based on the Professor's experience, it was highly doubtful if two rows of props set as intended at the accident site would have functioned as effective breaker props should a general goaf fall have occurred. 192 Having concluded that the risks associated with recovering an immobilised continuous miner from under unsupported roof in a pillar extraction lift was significantly greater and additional to those associated with recovering a continuous miner in the cut and flit mining system, the Professor observed that there were occasions when the identification and proper assessment of some of the risk could fall outside the training and scope of mine workers and deputies. In those circumstances input from more senior mining officials into the risk assessment process was required and that was reflected in the performance criteria of the National Black Coal Training Package Competency Unit. 193 In cross-examination, Professor Galvin was taken to a number of the assumptions he was asked to act upon. He had been told to assume that Mr Aspinall did not attend either of the two pillar extraction training courses held at the mine but there appeared to be contrary evidence before the Court. The Professor had avoided training issues because it was something upon which he could not express an opinion. Any reliance in his report on deficiencies in training was based upon assumptions he was asked to make. The Professor also accepted that, if those assumptions were shown to be incorrect, it might well lead to a change in his opinion. 194 It was confirmed by Professor Galvin that the assumptions he had been given led him to proceed on the basis that the Mine Manager had modified the procedure for the recovery of a stranded continuous miner by directing that timber props be used, summarised as two rows, driver's side, straight out. He had assumed that method had been used by the workers on 20 December 2000 because they had been directed to do so. He was critical that, in all circumstances, miners were to automatically go to two rows of props straight out for this task. 195 His report was premised on identifying the option that may be required in advance but accepted that every case had to be treated on its merits at the time. To that end, sometimes the circumstances may make it preferable to use a Fletcher bolter to the extent that it could be used or if unavailable or because of other circumstances, a combination of the Fletcher bolter and other techniques such as hand bolting and timber propping would be appropriate. There needed to be some flexibility of method to meet the particular circumstances confronting workers and sometimes if there was no option about using the Fletcher bolter, then the next step would be to consider the alternatives. Professor Galvin agreed that, as it turned out in this pillar extraction site, the immobilised continuous miner was recovered by a combination of the use of a Fletcher bolter, a hand held bolter and timber props. That was an example of a desirable approach in using a combination of techniques for the circumstances and demonstrating the flexibility of approach required. He agreed that in the context of an overall safe work position, if the Mine Manager had directed that the men were to consider the use of a Fletcher bolter as far as it could be used, a hand held bolter and timber props in suitable combination, that was a desirable approach but an important preliminary which was fundamental was sounding a stone roof. 196 In an earlier draft report, Professor Galvin had stated that it was not practical to have a single rigid procedure and each case needed to be assessed on its own merits. His idea was that the men had to look at the local circumstances and evaluate the approach based on each local situation, for example, where a corner had been cut off a stook or the current state of the roof. There was a need for a considered approach to the current circumstances. It was desirable, nevertheless, to set core criteria. 197 In the draft report, Professor Galvin had expressed the view that, on the basis of his experience and knowledge, he would have expected sounding of the roof to be effective to demonstrate that the roof where the accident occurred was unstable. He believed that if the roof had been sounded, it would have been demonstrably "drummy". If the crew had sounded the roof in the proper way, he would have expected them to at least recognise that it was drummy and they should have recognised that it was unstable or potentially unstable. If the roof had been sounded and shown to be drummy, the next step would be to assess the risk and to go no further until a determination had been as to how best to address that risk. One option was to bar down the roof but Professor Galvin did not know whether that was a good option. Another option was obtaining extra protection afforded by using the Fletcher bolter and if the Fletcher bolter had been used, the roof may have fallen but would have been pinned so that it could not come away and this accident would have been avoided. Another option was for the workers to stop work entirely and refer the problem on if they had any doubt about it and he expected the Deputy to do that if confronted by any doubts. 198 The Professor was of the view that if the roof had been sounded and then barred down, then the roof would have come down. It was his view that, if the crew had attempted to bar down the roof using any of the usual techniques, he was sure the roof would have fallen if it was that close to falling when they went to put the prop up and he suspected that it would not have taken much to bar the roof down. When asked if there was no excuse for an experienced coal miner not to have sounded this roof, Professor Galvin said that there could be excuses if they had not been taught or trained in that method but he found it surprising that no one in the crew would bar down a roof and that surely there would be someone amongst the crew with experience. The only other possibility was that each one thought that the other had performed that task. It appeared to the Professor that the root cause of the accident was the failure to sound the roof. 199 In Professor Galvin's opinion it was not sufficient for the Mine Manager to have given toolbox talks on sounding the roof and barring it down and then in dealing with the recovery of the immobilised continuous miner to say that the option of using the Fletcher bolter should be considered. What had to be taken into account was the crew and the role of the Deputy and the need for the crew to be given some direction and some working procedures or some criteria as to how they were to go about performing this task. They were faced with a critical situation and in the Professor's view, it fell above the Deputy to evaluate what they were doing and to then select the combination of options just discussed and then to proceed. It was not necessary for the Deputy to go to someone superior before deciding whether to sound the roof. Professor Galvin accepted that it would have been effective if the Mine Manager had instilled in the workers the need to sound the roof and on an indication of a "drummy" roof, then to step back: if that had occurred when it was found to be a drummy roof, then that would have been "quite effective". In earlier drafts, Professor Galvin had expressed himself as being "perplexed" that the roof had not been sounded. It was one of the things that he would not anticipate experienced miners would omit. 200 Professor Galvin accepted that the use of the Eimco placed under supported roof but using the bucket to bar down the roof was as an effective means of performing that task. In relation to setting a timber prop, Professor Galvin said that a little niche in the roof or some little irregularity should be looked for and the prop set beneath that irregularity and then over the top of the prop, a tapered timber wedge should be driven into the niche to jam the prop into the niche and tighten it. It would be driven with a 7 lb sledgehammer. A wedge would be made of hardwood and be approximately 1 foot long and 3 inches wide and tapered. In relation to setting the prop, Professor Galvin said there was a time factor to be considered between any act of sounding the roof and when the workers proceeded to set the prop. The professor agreed that if the roof was merely touched by the prop and fell, that tended to confirm that the roof had not been previously sounded 201 In relation to general mining principles, Professor Galvin accepted that the mining environment was a dynamic one that could change minute by minute. It was because of that fact that decisions regarding safe mining practices had to be made on the job and the position of Deputy was a statutory position constituted for that purpose. The Deputy's position had been in existence for over 100 years and the primary purpose had changed little during that time. The Deputy's responsibility included inspecting their assigned districts, having regard to the state of safety in their districts, and, supervising all persons assigned to the districts. Under the Coal Mine Regulations Act the Deputy, in his production district, was to inspect the state of the roof and sides at least once every two hours because there was a potential for the underground conditions to change over a short time or over a short distance in terms of production mining work. The 519 Panel was a production district. In addition to the Deputy, other members of the mining crew were required to make on the spot judgements and legislation endorsed them to do so. 202 In relation to pillar extraction, the statutory provision was that the Chief Inspector or the Minister on the advice of the Chief Inspector was to approve such mining including the manner and sequence of extracting the coal pillars. Professor Galvin said that, in pillar extraction, one could never be sure that you will not get a roof fall: in some pillar extraction techniques there was a strong emphasis in getting the roof to fall and to make sure it happened. In others, it may or may not happen: it was of no consequence if there was a safe system of work. 203 In relation to risk assessments, Professor Galvin said that, although there were varying models, the underlying principles were to identify the hazard, look at the probabilities, look at the consequences, rank the risk, put controls in place and assess if the controls were consistent across all of those matters. There were different ways that it could be approached to achieve those outcomes but the principles were fundamental. In performing the risk assessment the requirement was that the people involved had the knowledge and experience and skills appropriate to the task. A Deputy who was skilled in that particular topic relating to the risk assessment being undertaken would be included in the consultation but it could not be assumed that the Deputy was an expert in that particular field. 204 Professor Galvin confirmed that there were a number of considerations to take into account when rescuing a stranded continuous miner. Whatever the means of support, including props, the environment at the site needed to be taken into account together with the local circumstances such as: how far the continuous miner was in the lift; how much of the goaf was standing; where the stooks were placed; where the breaker lines support were set; had there been any falls in the goaf and where in the goaf had they taken place; what was the nature of the immediate roof; what was the impact of a corner being shaved on the entrance to the particular lift; could that stook or fender have been sliced; and if there was a very thin pillar, there might be a false sense of security. All these types of facts had to be considered before a decision was made as to the safest way to deal with the situation. Professor Galvin's view was that these matters were not generally within the competency of a Deputy. 205 In relation to sounding the roof, Professor Galvin said that properly executed sounding would identify drumming to a depth of approximately .5 of a metre and he had reason to have carefully considered this in the past. A decent tool was needed to sound the roof but not one that would dampen the sound. It needed to be thrown up with sufficient force. If it is a very drummy roof then a tap could reveal that factor but if one was looking to a depth of .5 of a metre, the steel or sounding implement had to really hit the roof and not dampen the sound and the steel needed to be let go momentarily then caught. There was also a need to sound not just one spot but to sound the general area. If steels were not available the men would have to improvise. If a very thin layer was involved, a shovel could be used to tap the roof but if there was thickness a shovel would not pick it up. The technique of sounding was normally learned on the job and mines had their own training programmes and issues such as this were one of the matters that were considered when people were judged to be competent. It was learned on the job and observations were made informally that it was being done properly and it was unlikely that any formal record would result. 206 Professor Galvin confirmed that the retrieval of an immobilised continuous miner from under unsupported roof in partial pillar excavation was not the subject of any detailed industry rule or set of safety guidelines. The guidelines were developed to draw attention to the need to develop safe working procedures but those procedures were not laid down. That was because the appropriate course needed to consider the specific circumstances and they may differ. In relation to the present incident, the timber props, the Fletcher bolter and the hand bolter were all options to consider and they could have been used together or in combination. However, the choice of timber props was inappropriate because the props had started back from the stook quite a number of metres back from a more rigid solid line and had to go quite a long way out into the goaf, perhaps 12 metres, and they no longer had the protection of the stooks or the breaker line supports and only had the protection of the timber. If there was a higher goaf fall, it was quite foreseeable that those one or two rows of props could be knocked off by the fall and Professor Galvin had a concern that could happen. In addition, behind the machine there was quite a reasonable area and a localised fall could possibly come in that direction towards the breaker props and result in one or two rows being knocked over. It was the construction of just two rows on their own that he believed was inappropriate. 207 The Professor accepted that there were occasions where it was quite appropriate for the crew to make the decision as to how they would rescue an immobilised continuous miner. That would occur where there had been a risk assessment and the risk assessment had looked at the various options for approaching a miner: identifying the different types of circumstances of an immobilised miner and having assessed the risks associated with each of the circumstances then decisions could be made. As an example, Professor Galvin said that, if the roof conditions appeared to be good and there was no structural disturbances, it may be appropriate for a Deputy to make the decision or, in another example, where the miner may be only partially into the lift. If there was, however, poor geology or the machine was a long way out then it really depended on what came out of the risk assessment as to what approach should be adopted. 208 In the present incident, when asked what was to guide the crew as to who should make the decision, Professor Galvin said that the guideline was the existence of a safe working procedure for pillar extraction that gave a Deputy guidance as to what circumstances were to be faced and what were to be the options in those circumstances. It may be that it should be laid down that if the continuous miner was more than a set number of metres out under unsupported roof, then the decision as to retrieval method should be taken at a higher managerial level such as Under-manager. When asked if the Professor had actually seen safe working procedures that made that type of specification for the rescue of an immobilised continuous miner as found in the circumstances of this incident, he said that he had seen safe working procedures that made provision for evaluating the work and if there were structural features present or the roof was not a normal type of roof then the Under-Manager was consulted. He had not seen a procedure that stipulated the distance as to how far the machine was out but that was the type of issue that should be raised in a risk assessment but he had not seen it in a safe working procedure. These answers were given by the Professor in relation to pillar extraction.

DR GALE'S REPORT 209 Dr Gale was the principal of the firm known as STC Operations Pty Ltd. Dr Gale was an Honours Graduate in Science from the University of Newcastle and held a Ph.D with his expertise lying in structural geology, stress analysis and rock deformation. While obtaining his doctorate he had worked at the CSIRO as a research scientist, partly based in Wollongong. At that time he was researching rock failure in underground coalmines, being originally based in the Southern coalfields. Dr Gale was then employed as Manager of the Strata Control Group with the Australian Coal Research Laboratory with responsibilities to undertake consulting and research into strata control issues affecting Australian coalmines. That body was funded by the Coal Industry. That position included research and design in respect of the stability of underground openings in coal mines in particular. Since 1989 his company had undertaken consulting in the same area of expertise in which he had been previously involved. 210 On 21 December 2000, Dr Gale was asked to attend Bellambi West Mine where an accident had occurred. His firm was requested to review the geological conditions surrounding nine cut-through of 519 Panel at which a rock fall had occurred during pillar extraction operations on the previous night causing injury to mine workers. On 12 April 2002, Dr Gale presented his report to Mr Sheehy, an Investigator with the New South Wales Department of Mineral Resources. In relation to the general roof conditions, Dr Gale noted that the immediate roof that could be visually inspected consisted of sandstone conglomerate lenses and laminate layers and was typically locally variable. It was noted that shallow falls of the immediate roof, typically less than approximately 0.3m, occurred during development mining. The overall structural stability of the main roof with development roadways appeared to be good. At the accident site the roof condition was of a similar nature and therefore variable. Shallow slabs of rock were noted in the right hand extraction lifts and also about the continuous miner in the left hand lift. The thickness of these blocks/slabs appeared to be typically less than 0.35m. It was noted that the slabs of rock which had formed broke off at the bolt line within 9 cut-through. The rock falls associated with the injuries to the mine workers occurred in the extracted and unbolted sections of the "goaf" area. The slabs appeared to be less than 0.3m thick and from the cut roof up to a conglomerate band. 211 In making general comments regarding large scale panel stability, Dr Gale observed rib conditions in the 8 cut-through adjacent to the extracted area and the adjacent roadway and stated they indicated that the large scale stability of the panel was maintained. Caving could only be seen from a distance but appeared to be shallow, that is, less than 1m high. In relation to general comments on the roof stability of the extracted area, Dr Gale stated that the nature of the caving in the extracted area was of thin slabs of the immediate roof rock, typically less than 300mm thick forming a shallow caved zone. The main stability issues noted were the potential for slabs or sheets of the immediate roof to form and detach during development and extraction. During development mining bolting and mesh panels were used to control this form of rock failure. During extraction, protection from slabbing was typically achieved by remote operation of the miner, the use of mobile breaker line supports and location of personnel under secured roofing. In some cases small stooks were left to minimise the slabbing of the roof under the continuous miner during extraction. While that may improve conditions above the continuous miner, it could not be considered a design that would eliminate the potential for slabbing of the immediate roof. 212 In relation to the rock slab failure mechanism, Dr Gale made the following comments: It was observed and inferred that the slabs were commonly initiated by sheer fracture close to the roof line adjacent to stooks or abutment areas, which then progressed across the goaf area by fracture of the bedding contacts of the sandstone/conglomerate unit. This type of fracture may be interpreted as a small scale version of feather edged fracture adjacent to goaf edges. This type of fracture may form rapidly and could create a slab which is fractured at one end (adjacent to an abutment area) and cantilevers over the goaf area from the fractured bedding plane contact. In this manner, the slab may break off adjacent to a support line (bolts, props, BLS) if the span is sufficient, of (sic) it may break off on a pre-existing joint or similar discontinuity in the rockmass. The fall of such blocks may occur in stages, and need not be a purely vertical fall. Rotation of the block from the break-off area may occur and cause the slab to hit the ground first at the initiation area of the fracture and then allow the slab to move (or 'walk' laterally towards the 'break-off point'). In this way, slabs may fall inside a vertical line drawn down from their break-off point. 213 Dr Gale then turned to the recovery of the continuous miner having regard to the nature of the roof structure and the features he had observed. Dr Gale then made the following comments: Recovery of a continuous miner within the extracted area would require a strata management approach which considered the risks and work procedures to manage the potential for shallow caving within the extracted area of the panel together with slabbing rotational falls of the immediate roof within the goaf. Caving and slabbing may occur at any stage during erection of support and the recovery process. Protection from such falling slabs during support erection would be considered a key aspect of the strata management approach. The process of erecting support 'inbye of the last row' does not provide protection, and it would be expected to require some form of additional temporary protection during this support stage. The use of timber props as part of a strata management approach would be appropriate so long as the props were set tight to the roof such that they provided an active force to encourage any slabs (which subsequently form) to break off rather than form above the support line. Props would need to be placed in close proximity to each other to provide a consistent break-off line. The density of props is outside the scope of this report, however, consideration of the distance to the ribside, other support in the area and potential for goaf falls is typically made. Such prop lines are particularly placed adjacent (eg. ‹3m) to a solid edge to minimise the risk of a goaf fall overriding the support. On the basis of goaf fall risk, such a location would be preferable to one initiated from the BLS support line. Similar comments can be made for roof bolts; they should be well grouted and tensioned such that they provide an active force into the roof . 214 In cross-examination, Dr Gale agreed that falls of rock may occur in stages and that stress could cause a change as the geometry changed thus, a fall could be induced over time. A change to geometry could occur because of a partial roof collapse and a partial roof collapse could then induce a stress collapse in a nearby area and that could happen over a period of hours. In providing his report, Dr Gale had some discussions with Mr Sheehy to clarify the views he had reached. He had been asked about sounding the roof and had replied to Mr Sheehy but that was outside of the formal report. Dr Gale stated that sounding the roof was not foolproof. When asked if sounding this roof over the immobilised continuous miner it would probably have been shown to be drummy, Dr Gale said that in some cases it would show up drummy as a drummy or slabby roof but in other cases it would not do so. He agreed that it would be a tool that should be used and it was possible that if used on this particular roof, it would have shown the roof to be drummy. When pressed, Dr Gale could not say that it would very probably show the roof to be drummy because it depended on the slope thickness: if there was a thick slope it would not necessarily show up as drummy. If the roof had been shown to be drummy it may or may not have been brought down by barring it down - it depended on the nature of the fracture although an attempt could have been made to bar it down. DR SEEDSMAN'S REPORT 215 Dr Seedsman was the principal of Seedsman Geotechnics Pty Ltd. He had been retained by Allied Coal Pty Ltd through Mr Milner to undertake reports from time to time in connection with mining at Bellambi West Mine in 2000. In May - June 2000, Dr Seedsman had provided reports to Mr Milner concerning the discovery of a fault that had led to consideration being given to adopt partial pillar extraction methods in relation to the 519 Panel. In providing advice in relation to this proposal, Dr Seedsman understood that the effect of this type of mining would result in the creation of voids in the order of 150 metres wide. 216 In dealing with caving/wind blasts, Dr Seedsman's advice in his report was that first goaf fall occured at approximately 50 metres of retreat. The width of the 519 sub-Panel was similar to the longwall retreat distance at which first goafing developed. He noted that there was a possibility that the roof would "hang-up" in these sub-panels and not cave. Given their size, this behaviour would not result in adverse weightings on the inter-panel pillars. 217 In a letter dated 27 November 2000 directed to Mr Milner, Dr Seedsman dealt with several queries raised regarding the adequacy of the roof support in the 519 Panel during pillar extraction. In the course of providing that advice, Dr Seedsman stated: The support patterns and the nature of the immediate roof together have resulted in good roof conditions during longwall retreat. No roof control issues have been reported in either the maingates or tailgates. There have been two changes in the roof support in 519 compared to earlier practices - firstly the introduction of 1.5m long bolts (compared to 1.8m) and secondly the use of butterflies instead of straps. The arguments for these changes have been presented in earlier reports and relate to the necessary beam thickness and the demonstrated beam thickness in the extended plunger. The roof support has functioned adequately on development. 218 In dealing with predicted roof behaviour, Dr Seedsman went on to state: In summary, it is argued that the mining induced stresses around the pillar extraction sub panels will be no greater than those developed around the previous longwalls, and the roof types are similar. Given this and the similar roof support density, it is assessed that the "structural" stability of the roof will be adequate during 519 extraction. The nature of the immediate roof is medium to very thickly bedded sandstone. This sandstone should have adequate ability to span between the butterflies and prevent the fall of scat. The roof support panel is not designed to suspend the roof should there be stress reductions that lead to net tension in the roof. It is noted that the large fenders and the alignment of the splits with respect to the jointing is such that the likelihood of roof falls in this scenario is low. Maintaining a large Stook X when lifting off both sides of the belt would help reduce the onset of adverse tensile conditions. Recommendations It is recommended that the current support rules continue to be used in 519 panel. No systematic re-support of the area is needed prior to pillar extraction. Geological/geotechnical inspection of the pillar extraction areas is recommended under the Department guidelines. Such inspection should identify any areas of poor roof and extra support be installed - this could be in the form of bolts or props. 219 In explanation of his report, Dr Seedsman said that his observations of the initial retreat of the longwalls and following discussions with Mr Milner and other people at the mine as to when the first fall would occur, he had come to the view that when the coal was removed the immediate roof did not necessarily fall down immediately and that there could be a period of time and particularly an additional increase in the span before that roof fell. 220 In cross-examination, Dr Seedsman said that he had known Mr Milner professionally for a period of time through work at the Bellambi West Mine and earlier and knew him to be one of the more knowledgeable coal mine Managers and very competent in the areas in which they had contact. He was very safety conscious in relation to areas in which Dr Seedsman was involved and had seen that safety systems were put in place that met best practice. 221 At the end of May 2000, Dr Seedsman had participated in toolbox talks that had specifically dealt with sounding the roof and scaling down the roof and the presence of laminates and stone plys. It was stressed to the crews that attention needed to be applied to the presence of laminates and stone plys when dealing with supporting the roof and as an expert in this field, Dr Seedsman had attended the talks to assist in educating the crews and instructing them on the topic. One of the issues that regularly arose was the presence of plys in the immediate roof and it was an issue that he and Mr Milner regularly discussed how to manage and the hazards it presented. He had been present when Mr Milner had dealt with that topic with the crews. The laminates here being dealt with were fine grained material that separated the bands of sandstone and were 0.2 - 0.3 metres thick. The stone plys being referred to were layers of rock that behaved as individual beams. Dr Seedsman was present when this topic was covered in a number of toolbox talks. There had also been discussions about sounding the roof and how to go about that task. Dr Seedsman had attended the mine on 21 December 2000. He was asked if, based on his own observation, there was no indication of cave-in or goafing relating to the failure of the overlying strata. He replied that from what he had observed, it was only that lower slab that had collapsed and that the main part of the rock overburden was still in place. His assessment of the Panel and pillar layout was that it was behaving as he thought it would. 222 The toolbox talks that Dr Seedsman participated in May 2000 were relevant to development mining but not all that information was relevant to partial pillar extraction. Dr Seedsman also stated that the presence of the BLS and the props were to control the immediate area where the mine workers were working and they offered protection against a goaf fall within the intersection. When Dr Seedsman arrived at the site in December 2000, he had observed that cavings had taken place in the 9 heading to the north of the BLS units. He saw slabs of sandstone in that area and also significant areas of open ground but there was nothing unexpected or unanticipated about the behaviour of the roof in that area. He explained that stooks were blocks of coal left close to the intersections to provide extra dimension to the roof support that was being offered and was sufficient to support the roof in the local area.

INSPECTOR BARRACLOUGH'S EVIDENCE 223 In 2000, Mr Barraclough was an Inspector of Coal Mines based in Wollongong. He held an Honours degree in mining engineering from the University of Wollongong and held Certificates of Competency under the Coal Mines Regulation Act to entitle him to act as Mine Manager, Under-manager and Deputy. He had attended the Bellambi West Mine on numerous occasions. During the course of his evidence he was asked questions about the practice of sounding the roof and agreed that it was a simple practice that had existed in coal mines for a very long time. The task could be performed by taking any implement that was handy and tapping the roof to determine how it sounded - when a drumming sound was encountered like a thud, it was different to the ringing sound of a more solid roof. If a drumming sound was obtained it indicated that there was a potentially parting of the roof and that it could fall. If a ringing sound was obtained , the roof was likely to be solid. A miner would not go out under unsupported roof because that was understood as being fundamentally unsafe. From everything known about the incident at the Bellambi West Mine, it was suggested that if someone had sounded the roof it would have potentially shown up to be a drummy roof and perhaps a clear probability that it would show that characteristic. If someone had attempted to bar down the roof it would have potentially come down but it depended on how weak was the strata lamination and how strongly it was being barred down. Nevertheless, there was a probability that it would come down. 224 Inspector Barraclough confirmed that, in the Coronial proceedings, he had given evidence that the circumstances of this accident a mine Deputy was competent to exercise the safety responsibility that was required. He had described the accident as a basic accident well within the competence of the miners as well as the mine Deputy. There was nothing about the circumstances faced by the miners that made it necessary to notify the Under-manager. 225 After the accident, Inspector Barraclough was asked to conduct an audit of the s 138 Application that had been granted by the then Department of Mineral Resources to undertake pillar extraction mining at the 519 Panel. He was aware that in a s 138 Application, the Chief Inspector could impose conditions on the grant of approval. The Inspector confirmed that no condition had been imposed by the Chief Inspector in relation to the application requiring a procedure to be documented dealing with the recovery of an immobilised remote continuous miner under unsupported roof. In giving evidence in the Coronial Inquiry, the Inspector had said that there was a common risk of trying to support the miners' way to the stranded continuous miner whether it was simply stranded or buried. It was a different risk for recovering a buried miner because of the necessity to deal with the fallen material and towing the miner out that would involved a risk that did not necessarily apply where the continuous miner was simply immobilised. 226 Inspector Barraclough agreed that, since the 1970s, there had been documents supplied and issued by the Department dealing with roof support that stated that, where it was necessary to proceed beyond the last line of support for the purpose of setting supports or installing roof bolts, temporary supports should first be set and timber props were such temporary supports and had been used for a very long time for that purpose. The Department's documents also warned that many accidents occurred in circumstances involving good roof and consequently roof inspection should not be conducted only by sounding but should also include careful examination to detect any natural or induced breaks or lines of weaknesses in the roof. For a very long time this had been the position in the industry with the Deputy having statutory responsibility for examining the roof for any defect before timber propping was commenced to provide temporary support. In evidence given to the Coronial Inquiry, Inspector Barraclough had agreed that timber propping by way of new support was a basic activity within the competence of a miner. It was becoming less so in recent time. In the past, the setting of a prop was a basic function of a person working as a machineman but in more recent times with changes in mining technology and roof support, the frequency of using props was greatly reduced. 227 In discussion with the Mine Manager after the accident concerning the recovery of the continuous miner, Inspector Barraclough had noticed that, because of the size of the Fletcher bolter, one of the BLS units had to be drawn back to enable the miner to be recovered. Moving the BLS unit temporarily limited the roof support it was providing. The Inspector agreed that the Fletcher bolter could not get to the position of the switch on the continuous miner because it could not get past the tail of the miner. Whatever approach was taken it was necessary to proceed incrementally from under the supported roof moving out into unsupported area. He agreed that it was dangerous to go along the rib side because the rib could fall and it was clumsy to try to prop over the top of the continuous miner. In the conditions at the mine it was impossible to bolt over the body of the continuous miner because there was insufficient height. At some stage, therefore, propping out was required in those circumstances. The Inspector agreed that each recovery of a continuous miner was different and a judgement had to be made about what was required. There could be an overall general plan of attack or options but what was needed to be actually done was impinged upon by site specific conditions. 228 In relation to sounding the roof and barring down, Inspector Barraclough spoke of the possibility of dislodging the roof. There were circumstances where areas of the roof were cantilevered such that there was a free edge on the goaf side and the slope of rock was actually cantilevering off the solid coal and it could also happen when the slab of rock falls in one position and then can complete its fall not in a direct vertical sense such that it pivots around one end or the other. While it was appropriate to bar down, there needed to be some assessment made of what was reasonable. Account had to be taken of the position and the potential outcome should more roof come down than was actually intended. A Deputy could make a determination when assessing the roof about whether to bar down or not. DELIBERATION 229 The defendants placed at the heart of their case the submission that the evidence demonstrated that no one from the crew had sounded the roof or barred it down before commencing to prop out to the stranded continuous miner. Closely connected to this proposition was the further submission that the immediate roof was so poor that, if it had been sounded, it would certainly have fallen and thus the accident would have been avoided. The roof fall was said to be the result of an inexplicable lapse by experienced miners acting contrary to instructions, training and safe working systems given and adopted by the company. The members of the crew had simply failed to properly sound the roof. It is, therefore, appropriate to begin by considering these propositions. 230 Of some significance is Mr Fraser's statement that when he checked the roof he noticed scrape marks on the stone roof. That observation suggests that, at an earlier time, the roof may have been sounded but that could only have been performed by either Mr Aspinall or Mr Rowles. The steps taken by them before the props were ordered, however, cannot be established. Mr Fraser was not available to give evidence and his observations form part of the statement he made to Mr Sheehy's Inquiry and therefore were not able to be elaborated upon or tested in cross-examination. It is, nevertheless, a statement made close to the time of the accident and before a serious issue was raised as to whether or not the roof had been sounded. 231 It may be open on that evidence to find that Mr Aspinall and/or Mr Rowles had the opportunity to sound the roof (perhaps with the pelican pick mentioned as being at the face), sometime before trying to place the first timber prop in position. The crew were not all in the one place nor were they observing everything that was being done by Mr Aspinall and Mr Rowles at this time in the shift. No other member of the crew stated that he sounded the roof or saw anyone else sound the roof. The Deputy, Mr McAlary, was absent and performing his district walk and inspections and was told by other members of the crew before he reached the face that the continuous miner had become stranded. He, therefore, did not participate in any preliminary discussion, if any took place, between Mr Rowles and Mr Aspinall as to what they had done and what they should do about recovering the continuous miner. 232 It is quite impossible to put a time upon when Mr Rowles and/or Mr Aspinall were in a position to sound the roof but logically that would be a step taken before directing the crew to obtain timber props and cutting instruments to allow a prop out to take place. As Professor Galvin continued, the time frame is important. The roof may have been sounded well before the props were obtained. However, this possibility, while real and not fanciful, does not rise above a possibility, but, as a consequence, it cannot be concluded that no member of the crew sounded the roof. 233 The second aspect is the proposition that the prop touched the roof and a slab of rock dislodged, pivoting on top of the timber prop before falling. Professor Galvin's opinion in relation to this matter was given during cross-examination and he offered the view that if the slab had dislodged by the prop touching the roof, then it was likely to the point of certainty that the roof would have fallen if it had been properly sounded and barred down. Professor Galvin was cautious to state that the time frame in which this all took place needed to be considered. The evidence, however, is not as clear on the timber prop actually touching the roof as suggested by the proposition put to Professor Galvin in cross-examination. The first prop had been measured and cut and Mr Rowles and Mr Aspinall were in the process of locating the base at a cleared spot on the ground and bringing the top of the prop to the roof although one witness talks about the prop being vertical. No witness is precise about the prop actually touching the roof. It was known that the use of props required a wedge to be inserted at the top of the timber prop but again there is no precise evidence as to whether a small gap was allowed, both to allow the prop to be put in a vertical position and a wedge to be inserted or whether it was to be cut so that it was fitted snugly before being wedged. It is the imprecision of the evidence that makes it difficult to find that the roof fell immediately after being touched by the timber prop: there is an unsatisfactory evidentiary basis for such a finding. 234 The evidence taken as a whole does not allow a firm conclusion to be reached that the roof was in such a bad condition that a mere touch of the prop brought about its dislodgement. Indeed, the evidence from the other members of the crew was that it was a good roof that did not need to be touched and that there was nothing to bar down - that was also Mr Milner's observations shortly after the accident. Dr Gale stated that a fall could be induced over time: stress could cause a change as the geometry changed. A change to geometry could occur because of a partial roof collapse and a partial roof collapse could then induce a stress collapse in a nearby area and that could happen over a period of hours. There were times when a roof would not be shown to be drumming if sounded - or if sounded drummy may not have been brought down by barring it. It is to be remembered that, when the shift handover occurred, no problems with the roof were identified to Mr McAlary and the incoming crew. Mr McAlary had satisfied himself, by inspection, that there was nothing out of the ordinary with the roof and there was no risk from the works. Dr Seedsman had indicated to the company his assessment that the roof stability would be adequate during the excavation of 519 Panel. Dr Gale had advised Mr Sheehy after visiting the site that the overall structural stability of the main roof with development roadways appeared to be good and at the accident site, the roof condition was of a similar nature. There is also the possibility of a time span between any attempt at sounding and the fall, resulting in the true nature of this part of the roof not being disclosed. 235 It is not possible, therefore, to conclude that the roof was not sounded or that the roof was likely to sound as a bad roof at this spot. The lack of clear evidence on these matters again highlights the inappropriateness of concentrating upon the accident rather than the particulars of the charge: as stated in WorkCover Authority (Inspector Farrell) v Morrison [2001] NSWIRComm 325, it is not necessary to arrive at a precise conclusion as to how the accident occurred - the general duties created by the Act are directed at obviating the risks to the health and safety of persons in the workplace. 236 The defendants also placed these allegations of a breach of s 15 of the Occupational Health and Safety Act in the context of the general attention to safety exhibited in the operation of the mine. Those factors were: (a) Mr Milner was a well qualified and experienced Mine Manager with a reputation for paying attention to safety; (b) Mr Milner did not hesitate to engage external experts (Dr Seedsman, Professor Hebblewhite, Dr Shepherd, the consultants Hawcroft Miller Swan etc) to advise on the safe operation of the mine and frequently submitted the Mine's safety procedures for advice and approval from the District Inspector and the Mines Department; (c) Dr Seedsman described the safety systems in operation at the mine as representing best practice. The mining crews were frequently instructed about safety in toolbox talks and in training sessions conducted by experts. Mr Milne was especially alert to the fact that many miners did not read lengthy documents on safety and so he devised presentations, combing written instruction with diagrams and oral instruction; (d) when he arrived at the mine, Mr Milner reviewed the Safety Management Plan. The redrafted plan was checked to ensure it complied with amendments made to the Regulation in 1999. All employees undertook an induction course before commencing work at the Mine. Dr Seedsman and Mr Milner had jointly authored support rules that directed miners to always inspect the roof and to cease work if they considered there was any danger because of the state of the roof or the sides. (e) Mr Milner had employed only experienced miners, including miners from Queensland, Kalgoorlie and America. He placed miners in a crew, balancing their skills and experience. He made observations of the crews in their work underground to assess their competency. 237 While these matters are of general significance, particularly in relation to the defences, nevertheless, the proper initial focus of the case is upon the particulars of the alleged breach. Thus, the focus is upon the acts or omissions of the company upon the introduction of the partial pillar method, and how the safety of working crews were ensured when they faced the problem of rescuing an immobilised continuous miner from under unsupported roof. 238 In the light of this discussion, it is necessary to consider the prosecution case on the usual and broader basis, namely, that there needs to be established, to the criminal standard, acts and/or omissions of the company that led to a risk to the safety of the miners employed in the 519 Pane during partial panel excavation. The first particularised such risk was an allegation that there was a failure to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. In dealing with this issue, it will be necessary to consider issues relevant to the other particulars in view of their inter-relationship. 239 The evidence shows that, prior to the commencement of partial pillar extraction, there was from 1999 a documented procedure for the recovery of a continuous miner in the cut and flit operation. That procedure involved the use of the Fletcher bolter (itself a sizeable piece of machinery) and possibly the hand bolter. An issue was raised with Mr Milner by the Check Inspector that, depending on the place where the continuous miner became stranded, there could be difficulties in manoeuvring the Fletcher bolter into place and using it to give support to the roof until hand bolters could be used, usually after reaching the rear of the continuous miner. As a result of the problem being raised, Mr Milner discussed it with the crews and orally modified the procedure by adding the option of using timber props. 240 When the partial pillar excavation process was close to commencing, the evidence shows that Mr Milner spoke to the crews in toolbox talks and told them that in either cut and flit operations or in the partial pillar extraction operation, the recovery of a miner would be undertaken in the same way: there was to be an inspection of the roof and the sides to assess their stability; there was to be a sounding of the roof and a barring down as necessary at the place where the work was to commence to give support to the roof; all the circumstances were to be considered; and, depending on those circumstances, the roof could be supported by using the Fletcher bolter, the hand held bolter, at least two rows of timber props or any combination of these methods. The crew were to use the Eimco to clean up the floor and could use the bucket to scrape the roof, if necessary. In addition, the crews were told that if they were not sure of what step to take they should cease work and seek assistance either from the Under-manager or the Mine Manager. 241 I am unable to find on the evidence that Mr Milner gave a direction that the Fletcher bolter or the hand held bolters were not to be used and that only timber props were to be used, nor am I am able to find that he directed that the only method to be adopted in recovering a continuous miner from under unsupported roof was that encapsulated in the phrase "two rows straight out, driver's side". This has some significance for the opinions expressed by Professor Galvin who proceeded on the assumption provided to him, as he understood, that only one method of support was to be used and that was the cut and flit system of the use of timber props "two props straight out, driver's side". 242 Mention should be made at this point of the recollection of the members of the crew who gave evidence more than six years after this incident. Their evidence, understandably in the circumstances, was sometimes vague and sometimes denied certain instructions were given or that they attended certain toolbox meetings but there were other records that showed that they had attended certain of those talks. It is no criticism of them that, after such a length of time, they had no precise memory of the details of what took place in the months leading up to partial pillar extraction being adopted for mining at 519 Panel. It does mean, however, that it is unsafe to rely on that evidence to conclude that no instruction was given or that the instruction given was only for the cut and flit operation or that the only way to rescue the miner was by using timber props "two rows straight out, driver's side". On the other side of the coin was the evidence of Mr McAlary and Mr Rowles: both recalled the toolbox talks where recovery of a stranded miner was discussed and where the use of timber props was added to the use of bolters as an available alternative method of obtaining support during the recovery exercise. While Mr McAlary could not recall the toolbox talk held on 24 November 2000 by Mr Milner, Mr Rowles was able to recall substantial details, including instructions to take care, to consider all the circumstances and to understand that there would be different situations to be faced requiring careful judgment to be exercised. The task was not to be rushed and was to be performed safely, regardless of the time taken in the recovery exercise. 243 Importantly, there is no evidence of particularity and substance that calls into question the account given by Mr Milner as to what instructions he gave about the recovery of the continuous miner from under unsupported roof, including recovery in pillar mining. As will be discussed later, the essential elements of a safe work procedure for the recovery of a stranded miner were contained within these instructions. 244 The prosecutor placed particular weight on the consultants' report and risk assessment identifying 64 separate risks in the partial pillar extraction process as generic to the process and stating that a further detailed study would be required when the panel and pillar design was finalised. Although there was some argument about what this meant, it seems clear enough that, having identified "generic risks to pillar extraction", the consultants were advising that once the actual design had been settled, specific issues may arise requiring a risk assessment. It is also significant that the consultants' report of May 2000 did not identify the risk associated with rescuing a continuous miner stranded under unsupported roof but dealt with what was conceded to be a more dangerous situation, the recovery of a buried continuous miner. In relation to the risks associated with that event, the potential controls identified were the development and implementation of a safe work procedure for recovering buried machines. 245 No detail was provided as to what might be appropriate for such a SWP. The evidence of Mr Milner and the statement from Mr Murray was that, indeed, further steps were taken after the design was settled. Those steps, although accepted as not constituting a "formal" risk assessment, commenced with Professor Hebblewhite and Dr Shepherd providing an independent technical review in mid-November 2000 that was discussed with Dr Seedsman, the Department and its Mine Inspectors. The consultants' report accompanying the s 138 Application stated in the introduction that the Mine had undertaken a risk assessment on the proposed pillar extraction system "to identify and control roofs associated with this system". The mid-November 2000 report dealt with structural issues, extraction methods and the fault area but did not descend into detail regarding the process for recovering a stranded continuous miner from under unsupported roof. There were, however, a number of drafts of pillar extraction operating procedures discussed with Inspector Gardiner and some aspects were reviewed in this process. The operating procedures were reviewed with the further assistance of Dr Shepherd and, on occasions, with the assistance of Dr Seedsman. It appears no one suggested, in this review process, that a new or different approach was required for the recovery of a stranded continuous miner. On 24 November 2000, Mr Milner held toolbox talks during which he instructed the crews on the modified recovery method indicating that it would apply to both the cut and flit operation and the partial pillar extraction operation. Mr Murray stated that those talks constituted part of the more detailed study referred to by the consultants. That further study looked at a number of matters after the size of the pillars and the location of the roadways were finalised: other pieces of equipment were also considered. 246 The thrust of the prosecution case then seems to focus on the fact that there was no detailed procedure laid down as a result of a specific risk assessment that gave quite definite and specific directions to the crew as to how they were to go about the task of rescuing a stranded continuous miner. 247 A significant part of the prosecution case was the fact that there had been a history of roof falls of a relatively minor nature compared with an entire goaf fall but, nevertheless, presenting a risk to safety. Professor Galvin stated that, given the history of these falls, it was foreseeable that, when rescuing an isolated miner from under unsupported roof, one of the risks to be considered and taken into account and a risk that was clearly foreseeable was that there could be a roof fall. In those circumstances the usual procedure was to closely inspect the roof, sound it and bar it down as necessary. The other factor was that it was well known at this Mine and in the mining industry that continuous miners became stranded and required to be "rescued". Again, Professor Galvin was of the view that it was clearly foreseeable that the mine operator would have to rescue a continuous miner when the operation altered from cut and flit to partial pillar extraction in Panel 519. In addition, the consultants advising the company in relation to its s 138 Application had provided a risk assessment of risks generic to partial pillar extraction and had identified the need to recover a buried continuous miner. It was common ground that the rescue of a buried miner under unsupported roof was a more dangerous task than the retrieval of a stranded miner from under unsupported roof. 248 Accepting all these matters does not necessarily advance the prosecution case regarding any culpable acts or omissions by the company. There is nothing in the evidence that suggests that the company and/or its employees, including the crew working on the 519 Panel, were unaware of the frequency of roof falls in the area of that Panel or were unaware that the continuous miner might become isolated under unsupported roof. There is nothing in the evidence to suggest that the crew and in particular Mr Aspinall and Mr Rowles, went about the task of rescuing the continuous miner in ignorance of the condition of the roof or otherwise being uninformed about the possibility of having to rescue the continuous miner. Both those factors were relevant to the type of risk assessment that had to be undertaken and the method adopted to rescue the continuous miner. The evidence shows that Mr Milner and the mine employees were well aware of the possibility of small areas of a roof falling and that support had to be given to a roof when rescuing a continuos miner from under unsupported roof , no matter what type of mining operation was involved, including partial pillar extraction mining. The method adopted by Mr Milner and passed on to the men nominated the use of the Fletcher bolter, hand held bolters or timber props or any combination of them in order to support the roof so that a crew engaged in the rescue exercise would not be exposed to the risk of part of the roof falling in on them while undertaking the rescue. The issue then appears to involve a consideration of whether a more detailed and written method of rescue should have been established by the company and that also involves a consideration of what should constitute those detailed steps to ensure the safety of the miners when engaged in a rescue exercise under unsupported roof. 249 In considering these issues, it is to be remembered that a critical part of the prosecution case was that when the company moved to partial pillar extraction, the mining crews were exposed to greater danger because the width of the goaf was substantially increased (from 75 sqm to over 2000 sqm). While the generality of that proposition might be accepted, there is evidence from Dr Hebblewhite and Dr Shepherd that, even in the previous form of mining, voids of up to 150 metres had been encountered (e.g. LW 518), with the company having to deal with geological stresses brought about by such a width: the suggestion was that a 150m total void width would also occur under the proposed pillar extraction method. Although there is no detailed evidence of it, it seems likely that in a general sense, under the previous method of mining, much smaller goaf areas were encountered and that under the partial pillar extraction method much wider goaf areas would be encountered but acceptance of that generality does not detract from the fact that, even under its previous method of operation, the company had to address the safety of the operation including the recovery of a stranded miner, albeit in smaller areas of goaf. There is no evidence to suggest that the company failed to appreciate the risks associated with goaf widths under its previous mining systems and how they might change under the new method or that, in some respect or another, it failed to fully appreciate those risks and ensure the safety of the men. Undoubtedly, differences in design would be of significance in taking measures to address the risk to employees presented by that width of goaf under the previous systems of mining. There is nothing, however, in the evidence to suggest that the company was ill equipped or omitted to take some step to address those circumstances under the previous method of operation. The prosecutor's case, however, proceeds on deficiencies in the system once pillar extraction mining commenced on 1 December 2000. 250 The difference that emerged in the evidence as to an appropriate procedure for partial pillar extraction was Professor Galvin's view that a detailed, almost step-by-step, method had to be provided to a crew faced with the task of rescuing a stranded continuous miner from under unsupported roof. While Professor Galvin accepted that the miners were sufficiently trained and skilled to make an assessment of the roof, to sound it and if necessary to bar it down, the nature of the goaf area was such that he was of the view that, ultimately, the crew including the Deputy, were not sufficiently skilled and trained to undertake the task themselves and that the exercise should be controlled by at least the Under-manager or someone higher in the managerial ranks. Professor Galvin did accept that situations could vary widely with the isolation of a continuous miner and because every circumstance had to be separately considered, it would not be possible to present a step-by-step method applicable to all situations or to provide a number of such safe work practices dealing with the number of variations likely to be faced. The Professor was of the view that a number of steps could be laid down but ultimately, to ensure the safety of the miners, the rescue exercise had to be conducted under the guidance and in some circumstances, under the direct control of someone above the rank of Mine Deputy. His frank assessment was that, in relation to this incident on 20 December 2000, the Mine Deputy and the crew did not have the training and skills necessary to undertake an appropriate risk assessment and to develop a method of rescuing the continuous miner such that the safety of the crew was ensured. 251 Professor Galvin's view in this regard was not supported by other evidence. Mr Barraclough, an Honours graduate with an extensive history in the mining industry and an Inspector in the region, was of the view that the tasks involved in the rescue of this miner were well within the capabilities and training of the crew under the direction of Deputy McAlary. Sounding and barring down of the roof and using timber props was a normal part of the work of a miner who had been certified as competent to follow that calling in underground work. Similar views were expressed by the company's training officer, Mr Murray. In February 2003, the Assistant Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment expressed the view that certified mine deputies were competent to exercise the safety responsibility that was required in the circumstances of this accident. The activity of installing new support was well within the competence of a miner as well as a Mine Deputy. It was also noted that new roof support could be installed for safety for any reason and not only for the retrieval of a continuous miner. Ultimately, no issue arose as to the capacity of these two officials to give such an opinion. 252 The prosecutor relies on this evidence of Professor Galvin and the fact that the method of retrieval approved by the Mining Inspector after the accident involved a role for the Under-manager as demonstrating the omissions from the company's system of work that led to crews being exposed to the risk of a roof fall while rescuing a continuous miner. The defendants point out that the method approved by the Mining Inspector was undertaken with the benefit of hindsight and was one where there were aspects with which the company did not agree - in particular, it was not accepted that there was a necessary role for the Under-manager to take control of a rescue nor was it accepted that the Deputy and his crew were not sufficiently trained and skilled to conduct an appropriate risk assessment and to devises a safe method of rescue having regard to the site circumstances then being faced. In particular, Mr Milner stated that he had quite deliberately over-supported the roof around the continuous miner after the accident because of a concern that many people would come to the scene who were unfamiliar with mining practices and who might inadvertently do things that could put them at risk. Quite a number of people had attended the site including persons who had previously never been underground. 253 It was submitted for the defendants that these factors significantly detracted from the proposition that the safe method of retrieval was that devised for the rescue of the continuous miner after this incident. There is some force in that submission even though it might be thought that support for the roof would be as effective for a working crew as for inexperienced persons coming to this part of the mine site. Mr Milner's evidence on this matter should be approached in a practical manner and I took him to be saying no more than, having regard to the serious accident that had taken place and the number of people who were likely to attend the site without having an appreciation of the dangers of mining, the fact that the roof was bolted to a much higher level of support and perhaps over a wider area as an over zealous precaution should not be indicative of that method being the only one that would ensure the safety of an underground working crew. His evidence has to be considered in the context of his experience that properly trained and skilled miners could detect, from the circumstances of the roof, whether there was to be a large scale goaf fall and that experience allowed assessments to be made as to what action should or should not be taken in a particular area. 254 Another difficulty arises with Professor Galvin's evidence. The system of competency tickets qualifying miners to hold certain positions, including Mine Deputy, results in the day-to-day operations of a mine being able to be conducted with a Deputy being given a particular role to constantly consider the state of the walls and the roof and to consider issues of safety during the course of the shift. There was no analysis in the evidence as to what was lacking in the training of a Deputy (quite apart from Mr McAlary's training) that resulted in a Mine Deputy being inappropriately informed, trained and skilled to conduct a risk assessment and incapable of establishing a safe method for the retrieval of a stranded continuous miner from under unsupported roof. There was no analysis of the training of a Under-mine Manager or persons higher in the hierarchy to demonstrate that their training and experience would be so superior to that of a Mine Deputy that, generally, only people at that level should control the rescue of a stranded continuous miner. No such suggestion was put directly to Mr Barraclough, a person with both high academic qualification and practical mining experience, nor was it put to the crew members who gave evidence. Without such analysis, the proposition is difficult to accept when considering questions of the means by which the safety of the men was to be ensured when engaged in the rescuing of a stranded continuous miner. The proposition has some echoes of a line of reasoning rejected over a long period of time in occupational health and safety prosecutions that the simple answer to a workplace risk was the addition of another layer or layers of supervision. In structuring a safe system of work the focus is on ensuring the safety of employees but the Act itself recognises the practicalities of the workplace and does not seek to establish perfect systems in a perfect world. As desirable as that outcome might be, that is beyond the requirements of the Act. 255 Mr Gardner, the Chief Inspector, did not give oral evidence in the proceedings but part of a statement previously made by him was, by consent, entered into evidence. Mr Milner's evidence was that it was the Chief Inspector's requirement that the safe working practice was to include the giving of a controlling role to the Under-manager in the rescue of a stranded continuous miner. There was no evidence as to why the Chief Inspector thought that was either appropriate or necessary. 256 The terms of the approved safe work practice, in any event, on closer examination do not require, in all circumstances, an overriding and controlling role for the Under-manager . The procedure adopted required the Deputy and the Co-ordinator to be notified by the crew of the immobilisation of the continuous miner. The Deputy, the Co-ordinator and miner driver were then to jointly inspect and assess the area and develop an appropriate method of support and a recovery method. The group was to decide whether bolters or props were to be used in accordance with the support rules. The Deputy was to have the final statutory responsibility as to the type of support and the method of recovery to be used. The Deputy was to notify the Under-manager before commencing work and inform that person of the action to be taken. The recovery exercise would commence immediately after the toolbox talk was completed - the Deputy was to conduct the toolbox talk with the whole crew and discuss the method of support and recovery. The Panel Deputy had full statutory control of the operation unless identified circumstances arose where the Under-manager was to assume control. Crew members installing roof support were to sound and test the roof during all support operations. The Fletcher bolter, hand held bolters and/or timber props could be used as required. Minimum support requirements were laid down. Where a BLS unit was to be moved closer to the miner, the Under-Manager was to oversee the operation. Where the recovery took longer than one hour, the support and recovery method had to be re-assessed with the shift Under-manager to be informed. Thereafter, the Under-manger was to oversee the operation. Where plys of up to 300 mm had fallen, this procedure was to be followed but where in excess of 300 mm of plys fell, the Deputy was to inform the Under-manager and he was to oversee the recovery and develop an appropriate strategy for recovery. This SWP was significantly different to the process proposed by Professor Galvin and left the Deputy largely in control of the operation until certain levels of difficulty emerged. 257 Another aspect to be considered is the fact that nobody, including Professor Galvin, had actually seen a documented safe work procedure of the type required by the Chief Inspector or spoken about Professor Galvin as being appropriate, or one with a requirement that an Under-manager or a person higher in the managerial structure should have control of the rescue of a stranded continuous miner. As earlier noted Professor Galvin, during cross-examination, did accept the necessity for flexibility in the procedures to be adopted in recognition of the many different situations that arose in the dynamics of mining and that, therefore, each circumstance had to be closely considered. Having agreed to that position, it is difficult to see how a position could then be reached that, in all circumstances, it was mandatory that an Under-manager or above had to be in control of the rescue exercise and the methods adopted and that there should be a detailed and documented safe work practice that could realistically meet all of the possible circumstances in which a continuous miner might have to be rescued. Mr Milner pointed out that there was practically no difference between the system of recovery he had instructed the crews to adopt (including at toolbox talks) and the system adopted to recover this particular stranded continuous miner: all of the options remained open and effective. 258 In this particular case, Deputy McAlary discussed the recovery of the miner with Mr Rowles and Mr Aspinall. Mr Rowles had proposed propping out to the miner and Mr McAlary required two rows of props to be used. This is the type of discussion envisaged by the safe work procedure developed after the accident. The Deputy remained in control of the operation in accordance with his statutory responsibility and authority. The use of timber props was one of the available options under the subsequent safe work procedure and that system was adopted. The course taken by the 3 men at the time largely reflected the terms of the later developed SWP and the broad terms of the 1998 Guideline and assessment document. Unfortunately it is not know what options, if any, were discussed by Mr Rowles and Mr Aspinal prior to Mr McAlary joining them nor was it known what action, if any, was taken to assess the roof immediately outside of the bolted area, if the accident is the focus of consideration in these proceedings. As discussed earlier, however, this matter is to be considered on the broader basis of the particulars, the risks faced by a mining crew in recovering a stranded miner and the identification of the culpable acts or omissions of the company in failing to ensure the safety of the men. 259 Having considered all of these matters, the Court cannot be satisfied beyond reasonable doubt that the company failed to undertake an assessment of the risks associated with the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. The prosecution has therefore failed to establish the first essential particular.

260 The second essential particular is an allegation that there was a failure to establish a SWP for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. The core of this particular has largely been dealt with in the preceding paragraphs. In addition, it might be noted that the Guidelines for the Use of Remote Controlled Mining Equipment, published in 1998, laid down that procedures should be developed clearly defining the circumstances and determining when work tasks were to be carried out: these procedures were to be "suitably communicated", regularly reviewed and the companies were to ensure that the procedures were understood. The later assessment document said that the procedures should be "suitably documented and enforced". This rather cautiously worded guideline allows for a variety of courses to be taken and seems to envisage a range of options, including a combination of written and unwritten directions. Importantly, the Guideline was not prescriptive as to the rescue method. 261 In the present case, the written direction was in relating to cut and flit mining and involved the use of the Fletcher bolter and the hand held bolter. That procedure was amended, orally, at a toolbox talk with the use of a whiteboard to demonstrate the technique and included the added option of using timber props. Those means of recovering a stranded continuous miner were to be used alone or in any suitable combination, depending on the circumstances of a particular incident. The need for that flexibility was recognised in the evidence of Professor Galvin, Inspector Barraclough and Mr Milner. It seems, therefore, that nothing should turn on the fact that the procedure was not documented for the partial pillar extraction method of mining. It was the subject of instruction and demonstration at toolbox talks, together with the instruction to always pay regard to, and closely inspect, the nature of the roof, to sound the roof and bar it down where appropriate. In my view, this combination of instruction repeated over a period of time represents a safe work procedure for the recovery of an immobilised continuous miner. It was always emphasised to the crews that, if they struck a situation that was unusual or where they felt uncomfortable about proceeding or they did not know what to do, they were to stop work and contact the Under-manager or the Mine Manager, Mr Milner. Such an instruction would cover situations where there was thought to be a possibility of a goaf fall. That approach contains all the main elements of the scheme approved by the Inspector for the recovery of the continuous miner involved in this particular incident, except for the different emphasis in that approved method of control being exercised at particular points over the recovery process by the Under-manager. 262 Of particular significance is the fact that there is no evidence that, in the circumstances considered by the Inspector, props were not to be used to recover a stranded continuous miner. Professor Galvin did offer the view that it was preferable to start with the Fletcher bolter as far as it could be used and then to use hand held bolters and props as appropriate. The Professor did ultimately accept that there needed to be flexibility in the procedures because of the variety of situations that could be met but also thought that there should be some core directions given. Upon analysis, the Court is of the view that the steps laid down by Mr Milner represented appropriate core instructions but necessarily left it open as to precisely what method should be adopted having regard to the specific conditions being faced. 263 It is also of some significance that the Deputy Mine Manager Mr Grey-Spence stated that, for many years, pillar extraction had been performed without safe work procedures being documented for the recovery of continuous miners. Apparently, this position arose because the recovery of every miner was different and there needed to be a mini risk analysis on site in order to work out how to retrieve the miner. Mr Murray, the Training Co-ordinator, understood that the University of New South Wales course examined a number of scenarios for recovery options and the miners went through that exercise. Mr McAlary's evidence is to the same effect. It was Mr Murray's understanding that those presentations included the process for the recovery of an immobilised miner from a pillar lift in general terms but not specific to the Bellambi West Mine. In addition, it was his view that the pillar extraction component of mining was basically irrelevant to what happened in the accident: thus, the alternatives that had previously been spoken about while the Mine was in the cut and flit operation were appropriate for partial pillar operation for the recovery of a stranded miner. 264 District Inspector Leslie Gardner could not recall ever seeing or having submitted to him a set of support rules for the recovery of a miner out of an area of unsupported roof, although s 102 of the Coal Mines Regulation Act required the Manager to make support rules. It will also be recalled that Professor Galvin had not seen a detailed set of safe working procedures for the recovery of a continuous miner from under unsupported roof. 265 In October 2000, as part of a refresher course in which Mr Murray, Dr Seedsman and Mr Milner participated, Mr Milner spoke about the Mine Manager's support rules designed by himself and Dr Seedsman and also spoke about dealing with a disabled continuous miner. Mr Milner told the crews that they were to make a thorough inspection of the roof and the sides, to sound the roof and bar down any material. The crews were to bring in an Eimco to clean the floor and use the bucket to scrape the roof, if necessary. An assessment had to be made whether it was safe to use bolts or props and if it was safe to use props then that would be appropriate. If there was a larger area requiring bolts then the process was to use a hand held bolter but if room allowed, the crew could use a Fletcher bolter. There needed to be an assessment of the situation at the time, depending on the condition of the mine. If using props, the miners had to use at least two rows of props to provide adequate protection and support. If unsure, they were to stop and seek assistance and in the first instance seek assistance from the shift Under-manager or ultimately, from himself as Mine Manager. The support rules had been signed off by the District Inspector and in part stated that each employee was to ensure that he made regular inspections of the roof and sides when undertaking any task while at the underground mine. If, for any reason, it was considered that the roof or sides presented a danger then the miner was to cease work and make the roof safe. 266 Under the cut and flit method a procedure had been drawn up for the rescue of an immobilised continuous miner but, in practice, it proved to have limitations. These difficulties were raised by a union Check Inspector and Mr Milner reviewed the method with the men and that is when it was decided that the use of timber props could be added to the procedure. Mr Milner had informed the workers of this change at toolbox talks in about June 2000 and he spoke to every crew about the use of the Fletcher bolter, hand held bolters and timber props or any combination of them. He had returned to that subject on a number of occasions after modifying the procedure. 267 In mid-October 2000, Mr Milner had enforced the prohibition against working under unsupported roof while rescuing a stranded continuous miner when he disciplined a crew for taking this unauthorised and dangerous action in breach of the mine safety rules. On the following day, all crews were involved in a toolbox talk when Mr Milner used a whiteboard to go through the available options for a crew to rescue an immobilised continuos miner and again the importance of testing and sounding the roof was emphasised. On 24 November 2000, (a few days before the University of New South Wales courses were undertaken for partial pillar extraction) Mr Milner conducted toolbox talks for each shift and dealt with pillar extraction operating procedures, using a whiteboard and overhead projector. During this toolbox talk, Mr Milner dealt with the recovery of a stranded continuous miner and the crews were told they were to carry out their normal pre-inspections and that they were to look at each situation as it would always be different and then an assessment would have to be made whether to use the Fletcher bolter, hand held bolters, timber props or any combination. At minimum it was necessary, as with any support, to create a safe work area. Mr Milner also went through a draft procedure for recovery of a buried miner and told the crews that, if that situation occurred, they were to stop and ring him even if he was at home. 268 Mr Milner made it clear in cross-examination that as at December 2000 there was a safe work procedure for the recovery of an immobilised continuous miner and that the procedure had been provided to all crews in the course of toolbox talks and orally, with the assistance of a diagram. It seemed to be accepted that Mr Milner did not make a distinction between the cut and flit operation and the partial pillar extraction operation but had treated the method as equally appropriate, having addressed the men just a few days before the University of New South Wales presentations in relation to partial pillar extraction and he did so in the context of the rescue procedure to be used in the new pillar extraction method of mining. Importantly, the evidence does not disclose that the men were left to their own devices under the new mining method and therefore relied on the cut and flit method without assessing its suitability. This was an important assumption upon which Professor Galvin was asked to proceed. 269 Having regard to Professor Galvin's evidence and the course of the evidence, there was a suggestion in the prosecutor's case that the safe working procedure should be documented. As already pointed out, Mr Grey-Spence had stated that, for many years, pillar extraction had been performed without documented safe work procedures as each situation was different and therefore there needed to be a mini-risk analysis conducted on site to assess the circumstances then present. 270 Not all work circumstances require a documented safe work practice. Many judgments of the Court provide examples of documented systems that are not enforced, but there are others where it is shown that there was a safe system of work and it was enforced although it was not documented. In WorkCover Authority (Inspector Patton) v Fletcher Constructions Aust Ltd (2002) 123 IR 121 at [82], the Vice-President, Walton J, stated that: ... (I) would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out in detail every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of the safe system of work, is a foundation element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation. It is the employer's obligation to 'ensure' that the system is safe.

In Inspector Kilpatrick v Jae My Pty Ltd (2004) 136 IR 148, the Full Bench accepted that the authorities have made it clear that not all systems of work must be documented, citing Fletcher, and further noting that on the job training in particular work may be sufficient to ensure safety, citing Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [61]. 271 It is significant that the substance of Mr Grey-Spence's evidence was not challenged or contradicted and that none of the experienced inspectors or experts were able to produce a detailed standard SWP for the recovery of a stranded continuous miner from under unsupported roof, especially in partial pillar extraction mining. The guideline and assessment document did not attempt to lay out such a prescriptive document nor did the consultants in supplying a risk assessment to accompany the s 138 Application. The Chief Inspector did not impose any further conditions when granting the s 138 Application and in particular, did not draw attention to the fact that there was an inadequate procedure for the rescue of an immobilised continuous miner. In the course presented by the University of New South Wales, Professor Hebblewhite and Dr Shepherd provided statistics in relation to injuries associated with rescuing continuous miners but again there is no suggestion of a requirement for some detailed documented recovery procedure. 272 Having considered this evidence, the Court is satisfied that there was a SWP that met industry and safety standards for the recovery of a stranded continuous miner under unsupported roof and that procedure had been reinforced with the crews from the middle of 2000 until just before partial pillar extraction mining commenced. The procedure was detailed, as earlier discussed. Importantly, it was emphasised that every situation would be different: that is why it was impractical to issue a fully documented SWP. This is one of the circumstances, recognised as happening from time to time in pillar exactions, where the absence of a documented process did not mean that there was an absence of a safe work procedure and that it was not reinforced with the mining crews. For those reasons, the prosecutor's second essential particular is not established. 273 To the extent that the prosecutor's case was that there was a lack of a system in relation to who was to take charge, what notice was to be given, what approval was to be given and what instructions were to given as to particular dangers or precautions to be taken, that they were in fact not formulated until after the accident, there is force in the submissions made on behalf of Mr Baldwin that the evidence demonstrated that, as the statutory Deputy, Mr McAlary was always in charge of the safety of the crew and had discussed the appropriate method of recovery with Mr Rowles and Mr Aspinall. Notice was to be given to the Under-manager if problems arose that the crew were not trained to meet. The instructions had been set out in detail at the toolbox talks. 274 The third essential particular was an allegation that the company failed in the context of pillar extraction coal mining operations to provide training, or any adequate training, information and instruction to its employees for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. Again, the material that has already been dealt with in relation to the first and second particular are relevant to this allegation. Mr Milner dealt directly with the issue by way of toolbox talks and returned to the matter in October and November 2000. The training co-coordinator, Mr Murray, said the topic was dealt with by way of reference to scenarios during the University of New South Wales presentation conducted by Professor Hebblewhite and Dr Shepherd. Mr McAlary gave similar evidence. One crew had already been disciplined in October 2000 for working under unsupported roof in the course of rescuing a stranded miner. The prohibition against such an approach must have been fresh in the minds of all crews when partial pillar extraction commenced on or about 1 December 2000 in circumstances where the crews knew that, under this method, the major risk was a roof fall. In addition, Mr Milner sent four very experienced miners underground to observe the mining methods adopted by the crews in the first few weeks of partial pillar extraction mining to ensure that they were working, in particular, according to the methods and procedures dealt with by Professor Hebblewhite and Dr Shepherd in their presentations given on 27 and 28 November 2000. More generally, Dr Seedsman had observed Mr Milner train the men at toolbox talks, especially in relation to sounding and looking for laminates: in his view, Mr Milner adopted best practice in the Mine's safety systems. 275 It appears, therefore, that this particular revolves around the allegation based upon Professor Galvin's evidence that the work had not been the subject of a proper risk assessment and that a relevant safe working procedure had not been developed so that the panel crew were unguided and left to their own devices and planning and they were not trained or competent with the decision-making involved but adopted a procedure devised for a significantly different mining environment. Professor Galvin's views of course were expressed in relation to the assumptions he was given. In important respects a number of those assumptions were not made out on the evidence: for reasons already stated, there was a risk assessment and there was a safe work procedure. 276 In relation to the prosecution case, the issue then arises as to whether it can be said that the men were not trained or competent in the decision-making involved and adopted a procedure devised for a significantly different mining environment. The evidence shows that the crew, quite deliberately according to Mr Milner's evidence, was one chosen to blend skills and experience. The crew involved in this incident comprised a number of men who had some pillar extraction experience although it was readily conceded that experience needed to be updated and that was the purpose of the presentation given by Professor Hebblewhite and Dr Shepherd on 27 and 28 November 2007. Mr Rowles had approximately two year's pillar extraction experience four or five years before the accident but had no partial pillar experience or experience of recovering a continuous miner. Mr McAlary had long experience in the mining industry and ten years' earlier had pillar extraction experience. He had experience of recovering a continuous miner in the cut and flit process approximately six or seven months before the accident but had no experience in recovering a continuous miner in pillar mining. Mr Monk had 15 to 20 years' mining experience and had three or four months' experience with pillar extraction mining quite some time earlier. Mr Pearce had ten years' experience in the coal mining industry but had no previous experience in partial pillar extraction and had not previously recovered a continuous miner at the Bellambi West Mine. Mr Zgorzelski had 20 years' experience in the mining industry and had experience in pillar extraction in three mines. Mr Fraser had long experience in the coal mining industry and had approximately 12 months' previous experience in pillar extraction mining. All the crew had attended the presentations by the University of New South Wales. Given that the mining processes were different, but that the crews had been instructed in the new method and had also been instructed by Mr Milner (in the ways described above), there is no analysis in the evidence as to the way in which this crew with their combination of mining experience, the University of New South Wales presentation, toolbox talks and ongoing instruction were not competent to perform this task. It has been previously referred to that Inspector Barraclough regarded the men as competent in relation to timber propping and carrying out the work on the day and that in a Departmental record, senior Department officials had made the observation that, at the time of this incident, the miners and Mine Deputy were competent to undertake the task of the recovery continuous miner. The evidence discloses that the placement of timber props was part and parcel of the usual duties of a competent miner and was part of the skill set that permitted them to work underground. All crew members were capable in this task and the timber props chosen were able to bear the weight of these falls. 277 The thrust of this particular therefore seems to hinge upon Professor Galvin's evidence which proceeds upon a number of assumptions and in a number of important respects, those assumptions have not been established in the evidence. In this respect the following assumptions provided to Professor Galvin were not, on the evidence, established or established to the extent of the presumption he was asked to act upon: a further risk assessment was not developed following the s 138 Application and after the design had been concluded; there were no training modules specifically addressing the safe retrieval of a continuous miner under unsupported roof; there was no specific recovery procedure and no requirement for the Under-manager to be notified of a continuous miner isolation; the modified recovery procedures of June and October 2000 called for the use of props on the basis of two rows of props, driver's side, straight out; that on 24 November 2000, the Mine Manager gave toolbox talks on pillar extraction operating procedures to the crews; on 27 and 28 November 2000, the University of New South Wales course did not address the recovery of a continuous miner from a lift; the crew had no prior experience extracting coal pillars by taking long lifts left and right using a remote controlled continuous miner and three mobile breaker line supports; none of the crew had previously been engaged in pillar extraction at Bellambi West Mine prior to 1 December 2000; none of the crew had any form of pillar extraction experience for at least four years prior to 1 December 2000; the crew tried to recover the stranded continuous miner using the cut and flit procedure; and, there was a Fletcher bolter present at the time. 278 As previously discussed, there was a further risk assessment developed after the s 138 Application had been granted and while the use of other equipment and circumstances were considered, in fact, no change was made to the already amended method of recovery. Mr Milner had explained that method in detail to the crews on 24 November 2000 while addressing the crews on the introduction of pillar extraction mining and just prior to the University of New South Wales course to be presented by Dr Hebblewhite and Dr Shepherd. While it might be strictly correct to state that no training modules had been developed specifically addressing the safe retrieval of a continuous miner, nevertheless, the men had been specifically instructed that working under unsupported roof for the recovery of such a miner was prohibited and had also been instructed in detail as to the course to be adopted for the retrieval of a miner. Professor Galvin was mistaken in his view that the modified procedure adopted by Mr Milner was to prohibit the use of the Fletcher bolter and hand held bolters so that the only method of recovery was to be propping out by using two rows driver's side, straight out. There appears to be no recognition that the men had been instructed repeatedly about assessing the roof, including sounding the roof and where necessary, barring it down. When the terms of what Mr Milner had instructed the men in this regard over a period of time were put to Professor Galvin, he accepted that approach as being appropriate. 279 It was assumed that the presentations made on 27 and 28 November 2008 did not deal with the recovery of a continuous miner from a lift although the written material referred to the dangers of a buried miner, but did not address the recovery process. The Training Co-ordinator Mr Murray said that, as part of the University of New South Wales course, Professor Hebblewhite had gone into some scenarios that basically talked about some recovery options and the crew were taken through those scenarios. The scenarios dealt with the recovery of a continuous miner from a pillar lift but were in general terms rather than specific to the Bellambi West Mine. The assumption that the crew were instructed to recover the miner using the cut and flit technique was incorrect in the context that they did so when left to their own devices and not being instructed what to do in relation to a recovery in pillar extraction mining. On 24 November 2000, Mr Milner had informed the crews what the recovery process would be applicable in pillar mining. 280 Professor Galvin acted on the basis that the Fletcher bolter was present at the time of the accident but the evidence is somewhat equivocal on that point: Mr Rowles thought that the Fletcher bolter was unavailable because of a breakdown and Mr Fraser did not know if the Fletcher bolter was available on the day as it may have been suffering from a mechanical or electrical problem. On the other hand, Mr Milner simply stated that the Fletcher bolter was present some 30 or 40 metres from the site of the accident and although not usually used in pillar extraction, it was subsequently used to recover this continuous miner. In terms, Mr Milner does not say that the Fletcher bolter was operational on the day of the accident but there appears to be an assumption that it was but the evidence is no higher than that. In light of the unsatisfactory nature of this evidence, the assumption that the Fletcher bolter was available is not a safe assumption upon which to proceed. 281 In relation to the assumptions that the crew had no prior experience extracting coal pillars using a remote controlled continuous miner and three mobile breaker line supports, that none of the crew had previously been engaged in pillar extraction at Bellambi West Mine prior to December 2000 and that none of the crew had any former pillar experience for at least four years prior to 1 December 2000, those assumptions, although substantially correct, do not result in any analysis of what level of further training would qualify the men for the recovery task in pillar mining, having regard to their extensive experience in mining generally and for a significant number of the crew, the fact that they had at some time or another some experience of the pillar extraction method. Mr Milner's evidence was that the fundamental principles of pillar mining had not altered in 100 years. There was no analysis of the course presented by the University of New South Wales to suggest that training could not permit the crew to perform pillar extraction work, including the recovery of a continuous miner: further, Professor Galvin put aside issues of training because he was not aware of what was involved, including the University of New South Wales course content. There is no evidence to suggest that, when the men were certified to undertake this work in pillar extraction at 519 Panel from 1 December 2000, they were not qualified to do so.

Having regard to all these matters, the third essential particular is not made out. 282 The fourth essential particular is the allegation that, on 20 December 2000, the company permitted employees without appropriate seniority and qualifications to determine the methodology for the recovery of an immobilised continuous miner from under unsupported roof in pillar extraction coal mining operations. It is clear from the discussion to this point that the Court rejects the notion that this crew and the mining crews generally were left to their own devices in relation to the recovery of a continuous miner from under unsupported roof. Mr Milner had addressed them at the toolbox meeting as to the steps to be taken from the preliminary observations through to making an assessment of the particular circumstances and the choice to be made between the two bolters and timber props or any combination thereof to support the roof during the rescue exercise. To this extent they had been given direction as to the method of recovery - a point conceded by Professor Galvin. What happened thereafter, as the witnesses agreed, depended on the particular circumstances. 283 There is simply no evidence to support a finding that the men were lacking in qualification or seniority to undertake this task. There is no analysis of their actual training to identify omissions nor is there any analysis of the training of the Under-manager as to why that person was more appropriate and better qualified to make the decision as to how to support the roof in a rescue exercise, and to make that decision to the exclusion of the Deputy or the crew. The recovery method approved by the Mines Inspector allowed these steps before raising particular circumstances where the Under-manager should be involved. Again, the prosecution case relies upon the evidence of Professor Galvin, itself being based on a number of assumptions. In part, the defendants again point to the observations made by the Assistant Director Safety Operations and Chief Inspector of Coal Mines and the Director, Mine Safety and Environment in February 2003 noting that the Coal Mines Regulation Act and the Coal Mines (General) Regulation contained requirements that dealt with hazards to employees through competency certification of mining officials, management structures and directions to deal with those hazards. As previously stated, the memorandum stated that certified mine deputies were competent to exercise the safety responsibility that was required in the circumstances of this particular accident and that the activity they were involved in was a "basic one well within the competence of a miner as well as a Mine Deputy". It was pointed out that a person may put in new roof support to make a place safe for any reason, not only to make a place safe to recover machinery that had stopped for a particular reason. 284 In relation to the prosecutor's suggestion that the crew were not experienced enough or informed enough of the risk of a wider goaf fall (rather than a more isolated laminates fall), the Court accepts the submissions for the defendants that, at the time of the attempted rescue of this stranded continuous miner, there was no evidence of a risk of what can only realistically be described as an unexpected goaf fall. As Dr Seedsman stated, the roof was behaving as was expected and there was in fact a prospect that the roof would hold up rather than fall in an expected time frame: there was nothing unexpected or unidentified about the behaviour of the roof. There was no evidence of a likely goaf or wider general fall, even shortly after the accident. 285 The defendants' response, in part, deals with the circumstances of this accident as does the evidence of Professor Galvin. If the broader view is adopted and the general risk of a goaf fall is considered in the context of recovering a stranded miner in the pillar extraction process, there is no acceptable evidence supporting the view that, because there may be a goaf fall, timber props (or any other option) are not a safe or appropriate option. The SWP, agreed to by the Mines Inspector after the accident, does not directly address the danger of a goaf fall nor does it specify circumstances in which the use of timber props will not be appropriate. Should a goaf fall be regarded as imminent, a decision might be made to wait for the fall and to then rescue a buried miner: as the evidence shows the circumstances of each case will need to be considered, along with all equipment options. 286 The prosecution's submissions that there was a lack of "recent" pillar extraction mining experience pays insufficient regard to the training provided by the University of New South Wales given to very experienced miners in circumstances where there is no analysis conducted to demonstrate that the previous experience of those involved in pillar extraction methods was of doubtful use or that their other mining experience, together with further training, was insufficient to undertake the mining task they were given on 20 December 2000. Importantly, experienced miners were sent underground to monitor the mines and to ensure that they were following the methods imparted to them during the University of New South Wales course.

The fourth essential particular is not made out. 287 Having considered all the matters referred to above, the prosecutor has not been able to establish a breach of s 15 of the Occupational Health and Safety Act 1983 by the company Allied Coal Pty Ltd: there has been a failure to establish a causal connection between the alleged acts or omissions of the company and the particularised risks to safety. It therefore follows that, by operation of s 50 of the Act, neither Mr Milner nor Mr Baldwin are thereby guilty of a breach of the Act. The proceedings in Matter No IRC 860 of 2006 against Mr Milner and the proceedings in Matter No 862 of 2006 against Mr Baldwin are dismissed. The prosecutor is to pay the costs of the defendants in a sum agreed or, in the absence of agreement, as ordered by the Court.

GLOSSARY Bolt (1) See 'Rock bolt'. Bolt (2) The process of installing a rock bolt. Breakaway The point where a crossroad is driven (mined) off another roadway. The main roadway is most often referred to as a 'heading' and the crossover roadway as a 'cut-through'. The angle between the headings and cut-throughs is typically 60 or 90. The point where the two roadways cross over each other is referred to as an "intersection'. Breaker Prop A timber prop installed between the edge of a working place and a mined out area (goaf) for the primary purpose of preventing any roof fall in the mined out area from extending into the working area. Breaker Line Support Another name for a Mobile Breaker Line Support. BLS Breaker Line Support. Cut and flit mining A mining system used to develop roadways in first workings whereby a significant distance is cut out by a continuous miner before the machine is moved (flitted) to another working place whilst the roof of the new roadway is supported. Cut-out, The distance mined (cut out) prior to the installation of roof support. cut out c/t Abbreviation for cut-through, cut through. Cut through Cut-through See definition of 'Breakaway'. cutthrough Fender (1) A portion of a coal pillar that is in the process of being extracted. A small pillar formed in the process of extracting coal. Fender (2) A thin web of coal left between pillar extraction lifts; that is between slices of coal cut off a pillar in the process of extracting it. First workings Mining systems which involve the formation of roadways separated by coal pillars. Goaf An area has been mined out and left in an unsupported state. The term can refer to both an area where the roof has not fallen and to an area where the roof has partially or totally fallen. Heading See definition of 'Breakaway'. Intersection See definition of 'Breakaway'. Laminate Rock that is comprised of many thin layers. Lift A slice of coal cut off the end of a coal pillar in the process of extracting the coal pillar. Coal pillars are extracted by progressively cutting slices of coal off them on the retreat. Mobile Breaker Line Support A remote controlled, mobile machine mounted on caterpillar tracks which comprises a steel canopy that is jacked to the roof by two hydraulic props to take the place of timber break props. The canopy is typically 2m wide by 4m long and can exert a force of the order of 600 tonnes on the roof. MBLS Mobile Breaker Line Support. Panel and Pillar Mining A form of partial extraction in which coal pillars are left on a regular basis so as to divide the mine workings up into a series of 'panels' from where the pillars have been extracted, separated by 'pillars' which are not to be excavated. Partial Pillar Extraction A form of pillar extraction in which some coal pillars are left in order to restrict the extent of caving of the upper roof strata. Usually employed in order to restrict the effects of mining on the surface. Pillar extraction A method of secondary extraction in which coal pillars formed by the first workings are extracted by progressively cutting slices of coal (lifts) off them. Plunge The depth or distance of a cut-out. Roof bolt An abbreviation of the term 'rock bolt'. A dowel, most often comprised of round steel bar, which is secured in a hole drilled into rock in order to stabilise and reinforce the rock mass by binding it together and providing a resistance to movement. Roof Ply A layer of strata within the roof. Second Workings Mining operations undertaken for the purpose of increasing percentage extraction from existing workings. Pillar extraction and longwall mining are examples of second workings. Secondary Extraction See 'Second Workings'. Stook A portion of a coal pillar lift in situ in order to provide temporary support to the roof during pillar extraction. Usually left in the vicinity of an intersection.

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