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[2012] NSWCA 320
Court of Appeal (NSW)
2012-09-11
Allsop P, Macfarlan JA, MacFarlan JA
Original judgment source is linked above.
Section 3 Definitions Insert in alphabetical order in section 3(1): mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 8(3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.
Sections 4 and 52A(9) and Part 18 of Schedule 6 Omit "to which the Coal Mines Regulation Act 1982 applies" wherever occurring". 20The respondent argued in support of his Notice of Contention that the first of these amendments effected a substantive change, and thus did not operate retrospectively, while the second of the changes was procedural and therefore operated retrospectively, rendering it applicable at 10 April 2006, the date of Mr Kearney's accident. Thus he said that the effect of the changes (plainly designed to move the reference to the Coal Mines Regulation Act from one place in the Workers Compensation Act to another) was that for a period of time prior to 22 December 2006, encompassing 10 April 2006, the Workers Compensation Act did not contain any presently relevant reference to the Coal Mines Regulation Act. 21The respondent proffered no reason why the legislature might have intended this apparent incongruity. In my view the proposition that the two amendments were designed to operate from different points in time should be rejected as inconsistent with the apparently complementary nature of the two amendments. As the appellant noted in reply, it is highly unlikely that two provisions, intended to complement one another and having their genesis in the same amending Act, would be intended to operate at two different times. Whether they both apply, or neither applies, in relation to Mr Kearney's accident is not in my view significant as in both cases consideration is required of whether the subject site was a mine within the meaning of the Coal Mines Regulation Act. In my view there is no relevant difference, at least in this context, between the language used in the first amending provision ("a mine within the meaning of the Coal Mines Regulation Act 1982") and that of the second (a mine "to which the Coal Mines Regulation Act 1982 applies"). 22In any event, if, as the respondent contends, recourse cannot be had to the Coal Mines Regulation Act 1982 for the purpose of determining whether Mr Kearney was a worker "employed in or about a mine" (see the definition of "coal miners" in Schedule 6 Part 18 Clause 3(4) of the Workers Compensation Act after the second of the 2002 Act amendments took effect on 22 December 2006) the same result still follows because the ordinary meaning of the words "employed in or about a mine" in my view includes employment in the rehabilitation of a mine site after extraction of minerals has ceased. For the reasons given above, that activity is an incident of the mining itself. A mine does not cease to be a mine immediately upon cessation of extraction of minerals. It continues to have that character at least whilst equipment is packed up and the site is rehabilitated. Only once that is complete and the site has been abandoned by those concerned with the mining or restorative operations does the site cease to be a mine. 23For these reasons I reject the submissions made in relation to the Notice of Contention.
ORDERS 24For the reasons that I have given, the appeal should be dismissed with costs. 25TOBIAS AJA: In this matter I have had the benefit of reading in draft the judgment of Macfarlan JA. I agree with the orders proposed by his Honour and, subject to what follows, with his reasons including those relating to the respondent's Notice of Contention. 26The only reservation I have with his Honour's reasons relates to [9] and [10] and the suggestion that the primary judge's reasons may, in part, have been founded on s 5(8)(b) of the Coal Mines Regulation Act 1982 ("the Act"). It is true that the primary judge made a finding to the effect that the mine had not been abandoned due to the necessity to rehabilitate the mine site but in my view he was relating that finding to a submission of the appellant founded on a notice given pursuant to s 134 of the Act. 27Thus at page 9 of his reasons the primary judge said: I accept the submission made by Mr Kelly . . . that the notice of discontinuance does not mean that the mine then became abandoned pursuant to the provisions of [the Act]. 28No submission was advanced by the respondent on appeal in reliance upon s 5(8)(b) although he referred to s 8, as well as ss 9 and 10, as "illuminating" the definition of "mine" (as a noun) in s 5(1). Rather, the respondent's support for the primary judge's decision was founded on so much of the definition of "mine" in s 5(1) as referred to "work . . . whereby, any operation for or in connection with mining is carried on . . .". It was then submitted (at paragraph 22 of the respondent's written submissions) that work carried out to rehabilitate the mine site was work "in connection with mining". As Macfarlan JA concludes at [12] of his reasons, this was clearly correct. 29In any event s 5(8)(b) is not easy to construe. Relevantly it deems to be part of a mine "work . . . which is part of a mine and which is in the course of being abandoned". The provision would make more sense if the conjunctive "and" was deleted. Given the terms of the sub-section, it is difficult to appreciate what it is seeking to achieve as it states the obvious, namely, work which is part of a mine (albeit in the course of being abandoned) is deemed to be part of a mine. 30As neither the primary judge nor the respondent sought to found their findings on the one hand and submissions on the other, upon s 5(8)(b), I would prefer to rest my agreement with Macfarlan JA, on the issue under discussion, on his Honour's observations at [12] of his reasons. This is not to say that I disagree either with his Honour or the primary judge that the rehabilitation of the mine site and its ongoing maintenance was not "work" or that the fact that that "work" was being carried out meant that the mine had not been abandoned. My only point is that in my opinion, the appeal can be decided on the definition of "mine" (as a noun) in s 5(1) without recourse to s 5(8)(b).
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Select Civil (Kiama) Pty Ltd
Kearney
[1993] FCA 456
[2007] WASCA 161
(1974) 1 NSWLR 81
(1974) 2 NSWLR 75