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?