Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others - [2004] NSWIRComm 202 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others

[2004] NSWIRComm 202

Industrial Relations Commission (NSW)|2004-07-01|Before: Staunton J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Staunton J

Source

Original judgment source is linked above.

Judgment (1181 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202 PROSECUTOR: Stephen Finlay McMartin PARTIES : DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady. FILE NUMBER: 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - mining fatalities and injuries caused by inrush - corporate defendants charged with breaches of ss15 and 16 of the Occupational Health and Safety Act 1983 - associated personal defendants charged pursuant to deeming provisions of s50(1) of the Occupational Health and Safety Act 1983 - pleas of not guilty - three specified charge periods identified - night shift charges - system of work charges - planning research and assessment charges - issues going to multiplicity of charges and overlapping of alleged offences - duplicity in a number of particularised failures - concern as to double jeopardy - issue as to whether mining activity being undertaken at the time of inrush was an act permitted to be done such as to attract the protection of s33(2) of the Occupational Health and Safety Act 1983 - application of s32(2) of Occupational Health and Safety Act 1983 as a defence to the offences charged - relationship between the Coal Mines Regulation Act 1982 and the Occupational Health and Safety Act 1983 and the respective regulatory frameworks - onus of proof arising under s33(2) of Occupational Health and Safety Act 1983 - expert witnesses evidence and reliance on opinions expressed - admissibility of disputed evidence - whether evidence admissible against a particular individual defendant is admissible against the corporate defendants and all other individual defendants - s87(1)(b) and (c) of Evidence Act considered - clause 9 of the Coal Mines Regulation (Survey and Plan) Regulation 1984 as a threshold defence to all charges - consideration of the Gretley mine as an undertaking of OPL - elements of offences under ss15 and 16 of Occupational Health and Safety Act 1983 - relevant principles - causal connection between the alleged conduct of the defendant and the alleged risk - issue as to when potential risk to safety arose - defences under s53(a) and (b) of the Occupational Health and Safety Act 1983 considered - corporate defendants failed to ensure the health, safety and welfare of their employees (or non-employees as the case may be) contrary to ss15(1) and 16(1) of the Occupational Health and Safety Act 1983 with respect to specific particularised failures - offences arising with respect to natural person defendants pursuant to deeming provisions of s50(1) of the Occupational Health and Safety Act 1983 - issue as to whether those natural person defendants are persons concerned in the management of the corporation - need to consider that provision with regard to both corporations - considerations as to proper approach to and construction of that phrase - onus on prosecution to establish - issue as to whether reverse onus arising for prosecution to discharge under s53 of the Occupational Health and Safety Act 1983 is a condition precedent to considering deeming provisions of s50(1) - defences available under s50(1) (a) and (b) - clause 9 of the Survey and Plan Regulation not available as a defence for Mine Surveyor in light of specific facts and circumstances - specific offences found proved with respect to corporate defendants and three natural person defendants - summonses with respect to five natural person defendants dismissed as being persons not concerned in the management of the corporations - penalty and costs to be determined. Occupational Health and Safety Act 1983 Coal Mines Regulation Act 1982 Coal Mines Regulation Act 1896 Coal Mines Regulation Act 1902 Coal Mines Regulation Act 1912 Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 Coal Mines Regulation (Survey and Plan) Regulation 1984 Coal Mines Regulation (Amendment) Act 1931 Coal Mines Regulation (Transport - Underground Mines) 1984 Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 Coal Mines Act 1911 (UK) Mines Inspection Act 1901 LEGISLATION CITED : Evidence Act 1995 Occupational Health and Safety Act 2000 Health and Safety at Work etc Act 1974 (UK) Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth) Companies (NSW) Code Companies (Victoria) Code Companies (Queensland) Code Corporations Law (SA) Victorian Health and Safety Act 1985 Re-establishment and Employment Act 1945 (Cth) Crimes Act 1914-1941 (Cth) Proceeds of Crime Act 1987 (Cth) Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 WorkCover Authority of NSW (Inspector Maltby) and Anor v Abigroup Contractors Pty Ltd and Luis Bustamante [2003] NSWIRComm 35 Connelly v DPP [1964] AC 1254 Davern v Messel (1984) 155 CLR 21 Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 Pearce v The Queen (1998) 194 CLR 610 Wemyss v Hopkins (1875) LR10QB 378 Blockburger v United States (1932) 284 US 299 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 Rodney Dale Morrison v Coal Operations Australia Limited [2003] NSWIRComm 249 Rodney Morrison v Tahmoor Coal Pty Limited (2002) 120 IR 153 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392 McAuliffe v The Queen (1995) 183 CLR 108 Tripodi v The Queen (1961) 104 CLR 1 Ahern v The Queen (1988) 165 CLR 87 WorkCover Authority of NSW (Inspector Reid) v CSR Limited t/a CSR Wood Panels (1995) 109 IR 275 WorkCover Authority v Boral - Montaro Pty Limited: Peterson J: 19 December 1997: No. CT 1218/96, unreported WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 James Manassa v WorkCover Authority [2003] NSWIRComm 348 Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) 90 IR 432 Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 R v Board of Trustees of the Science Museum [1993] 3 All ER 853, [1993] 1 WLR 1171 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 CASES CITED : Weissensteiner v R (1993) 178 CLR 217 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 470 McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241 Cullen v State Rail Authority of NSW (1989) 31 IR 207 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 Edwards v National Coal Board [1949] 1 KB 704 Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No. 1) (1999) 101 IR 239 Inspector Cameron v Wanless: Fisher P: 8 October 1997: CT 1127/96, unreported Hookham v The Queen (1994) 181 CLR 450 Inspector Ian John Batty for the WorkCover Authority of New South Wales v C I & D Industries Pty Limited (ACN 001 119 026), C I & D Manufacturing Pty Limited (ACN 001 002 446) and Kyle Leslie Grigor (Matter No's CT 1192, 1193, 1194 and 1195 of 1994): Fisher CJ: 14 December 1995, unreported WorkCover Authority of NSW v John Anthony Brown (Matter No's CT 1024, 1025, 1026, 1027 and 1028 of 1996): Maidment J: 29 July 1997, unreported Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Limited and Anor (2001) 105 IR 348 Tesco Supermarkets Ltd v Nattross [1972] 2 All ER 127 Commissioner for Corporate Affairs v Bracht [1989] VR 821 Griggs v Australian Securities Commission (1999) 75 SASR 307 R v Campbell (1984) 78 Cr App Rep 95 Cullen v Corporate Affairs Commission (NSW) (1989) 7 ACLC 121 Holpitt Pty Ltd v Swaab and ors (1992) 105 ALR 421 Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 5 ACLC 1027 Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 Standard Chartered Bank of Australia v Antico (No's 1 and 2) (1995) 38 NSWLR 290 Omnicon Video Pty Ltd v Kookaburra Productions Pty Ltd (Receiver and Manager Appointed) and ors: No. 1024 of 1991: Bryson J: 13 November 1995 (Unreported) R v Pasta Master Pty Ltd and Conway: Holt J: Victorian County Court, 16 August 2000: Interlocutory ruling R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Henry Bailey: Stott J: Victorian County Court, 31 October 1991: Interlocutory ruling Cain v Doyle (1946) 72 CLR 409 R v Brian John Buckett (1995) 79 A Crim R 302 Morris v Wellington City and anor (1969) NZLR 1038 HEARING DATES: 07/14/2003; 07/15/2003; 08/11/2003; 08/12/2003; 08/13/2003; 08/14/2003; 08/18/2003; 08/19/2003; 08/25/2003; 08/26/2003; 08/27/2003; 08/28/2003; 09/01/2003; 09/02/2003; 09/03/2003; 09/04/2003; 09/08/2003; 09/09/2003; 09/10/2003; 09/11/2003; 09/15/2003; 09/16/2003; 09/17/2003; 09/22/2003; 09/23/2003; 09/24/2003; 09/25/2003; 09/29/2003; 09/30/2003; 10/02/2003; 10/07/2003; 10/08/2003; 10/13/2003; 10/14/2003; 10/15/2003; 10/16/2003; 10/27/2003; 10/29/2003; 10/30/2003; 11/03/2003; 11/04/2003; 11/05/2003; 11/06/2003; 11/11/2003; 11/13/2003; 11/17/2003; 11/18/2003; 12/01/2003; 12/02/2003; 12/03/2003; 12/04/2003; 12/08/2003; 12/09/2003; 12/11/2003; 12/16/2003; 02/09/2004; 02/10/2004; 02/11/2004; 02/12/2004; 02/16/2004; 02/23/2004; 02/24/2004; 03/10/2004; 03/16/2004; 03/29/2004; 03/30/2004; 03/31/2004; 04/05/2004; 04/06/2004; 04/20/2004 DATE OF JUDGMENT: 08/09/2004

[22]

13 The eight personal defendants were, at relevant times, occupying statutory positions at the Gretley Colliery arising under the Coal Mines Regulation Act 1982 (CMRA 1982). They were as follows: (i) Mr Richard Porteous was the Statutory Mine Manager at Gretley at the time of the inrush on 14 November 1996. He was appointed Mine Manager at Gretley on 28 October 1994. Mr Porteous is charged with 12 offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act over the three identified charge periods. (ii) Mr Jonathan Romcke was the Statutory Mine Manager at Gretley between June 1993 and 28 October 1994. After he left Gretley, Mr Romcke was appointed Statutory Mine Manager at another colliery within the Oakbridge group. Mr Romcke is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift on 14 November 1996. (iii) Mr Phillip Pritchard, Mr Michael Alston, Mr Michael Coffey, Mr Christopher Nicholls and Mr Terence Shacklady were all appointed statutory Under Managers at Gretley. As well, Mr Alston was statutory Under Manager in charge at Gretley and Mr Pritchard occupied that position from 10 November 1996 for a period of some weeks while Mr Alston was on leave. Each of them have been charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act, covering the type 2 charge period between about 16 September 1996 up to the commencement of the night shift at 11:30pm on 13 November 1996. (iv) Mr Mark Robinson was the statutory Mine Surveyor for a number of relevant periods: 25 September 1995 - 6 October 1995; 18 December 1995 - 21 January 1996; 30 January 1996 - 4 March 1996; 1 April 1996 - 30 June 1996 and 1 July 1996 - 31 December 1996. The initial intermittent nature of Mr Robinson's appointment as statutory Mine Surveyor was because of the absence through illness of Mr Michael Murray, his predecessor as statutory Mine Surveyor. Mr Murray was, by all accounts, on extended sick leave from September 1995 onwards. He died in October 1996. Following Mr Murray's death, steps were taken to formally appoint Mr Robinson as statutory Mine Surveyor on a fulltime basis. That process was undertaken in October 1996. Mr Robinson is charged with four offences arising from the alleged breaches by the corporate defendants under ss15 and 16 of the Act covering the type 3 charge period between about 22 March 1994 and the end of the night shift finishing at 7:30am on 14 November 1996.

[147]

120 While the prosecution may say that such an approach is permissible within the widest construction of s49A of the OHSA 1983, it is an approach that should be discouraged. It carries with it the danger of offending against the rule of double jeopardy. As well, it seems to me that it serves no useful purpose within the context of the Act or s49A in particular to break up the alleged contraventions of the defendants, relying predominantly on a temporal component with duplication of alleged contraventions simply to add to or create additional offences. This is particularly so where the prosecution is faced with a factual situation of continuing workplace activity encompassing those alleged contraventions. Further, it has to be asked whether such a pleading device materially adds to the substance and objective seriousness of the offences charged. And it is no satisfactory answer, it seems to me, for the prosecution to argue that any duplicity that arises can simply be addressed in the sentencing process. In this respect, I can only endorse the sentiments expressed by Haylen J in Robert Darcy Coombs v Patrick Stevedores Holdings Pty Limited [2004] NSWIRComm 77, particularly at paras [5] and [6] as follows: I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case.

[152]

125 It should also be acknowledged that, at common law, a person may be convicted of two offences in respect of the same conduct. That principle was reaffirmed and the application of the test of double jeopardy was considered in Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502. In that matter Gleeson CJ said at 507-508: Both the proposition that a person cannot be punished twice for the same offence, and the related proposition that where one offence is an element of a more serious offence (or, to put it another way, where the second offence charged is merely an aggravated form of the first offence) a person cannot be convicted of both, are well-established. R v Dodd (1991) 56 A Crim R 451 provides a recent example, in this jurisdiction, of the latter. As was pointed out in that case however (at 457), it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation. Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts. In Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 510, Hope J said: '…There is no reason why an act may not be prohibited by two separate statutes and …involve an offence under each statute.' That statement, as part of his Honour's reasoning in the case, was approved by the Court of Appeal in that case ([1973] 1 NSWLR 229) and also in Sydney City Council v Paul Dainty Corporation Pty Ltd [1984] 3 NSWLR 104 at 107: see also Australian Oil Refining Pty Ltd v Cooper (1989) 11 NSWLR 277. The Supreme Court of South Australia has, on a number of occasions, most notably in R v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219, taken what some would regard as an expansive view of the rule against double jeopardy, and indicated a willingness to apply it in a case where a second charge relates to the same set of facts as those in respect of which there has been an earlier conviction. However, the problem of defining the relevant set of facts was clearly acknowledged. Bray CJ said (at 225-226): The view I take then is that a man should not be convicted again in respect of any act or omission for which he has previously been punished but it is necessary to define with some care the precise act or omission for which he was previously punished in order to see whether it is the same act or omission which is in question in the second prosecution. Wells J (at 258) said the rule was wide enough to cover cases where: '…the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former.' (See also Travers v Wakeham (1991) 28 FCR 425; 54 A Crim R 205.) Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another. It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provision or administrative action, there are some kinds of conduct which almost inevitably involve participants in multiple breaches of the law. For example, the scheme of the customs legislation and regulations is such that a transaction or dealing designed to evade customs duty is highly likely to expose the offender to multiple penalties: cf Scott v Geoghegan and Sons Pty Ltd (1969) 43 ALJR 243. This will be because various steps in the transaction are likely to contravene various prohibitions. That is not ordinarily regarded as involving double jeopardy in the technical sense.

[200]

168 In relation to Mr Adam's specific knowledge in connection with mine surveying, Mr Adam elaborated on that in some considerable detail as follows: (a) 1955/63: i) Cadet Surveyor then Mine Surveyor at Wongawilli Colliery. (ii) Nature of Work: (1) Routine underground Mine Surveys, lease boundary identification and borehole location in MWS and Dbd Catchment areas. (2) Responsible for engineering survey, work associated with construction of underground and surface decline conveyors, both of which had specifications as 'southern hemisphere' firsts relating to length and drop. Subsequent to completion of this project, I was retained by APEX Belting to conduct check surveys for a similar decline installation at Huntley Colliery. (b) 1956/1973: (i) From 1956 to around 1973, I also worked with two other surveyors conducting surveys at small mines in the Southern Coalfields. During the course of time I progressively accepted responsibility for this work and by around 1962 conducted this work as the Mine Surveyor at both Avondale and Bulli Main Colliery. (ii) Details of work conducted in this period included: (1) Routine mine surveys and preparation of workings and statutory plans at Lock (sic) Catherine Colliery. (2) Routine mine surveys and preparation of workings and statutory plans at Port Kembla No 2 Colliery. (3) Routine mine surveys and preparation of workings and statutory plans at Avondale Colliery together with design of mine layout proposals. Over a period of some 18 years, this mine extended its operations from a single seam, contract operation (men loading 1 ton skips with shovels and coal drawn to central haulage by horses), to a two seam operation in which coal was mined with continuous miners. (4) Survey work included lease identification involving transfer of azimuth and levels to the top of an escarpment some 700' above the mine portals. (5) Lease boundary surveys for the acquisition of new/contested leases and outcrop surveys to determine mining limits and location of secondary mine entries. (6) Retained by Allied Constructions Pty Ltd to conduct survey work for the driving of a cross measure drift through the Illawarra Escarpment. This drift had a gradient of approximately 24% and was driven from each end and connected in the centre. (7) Retained by management of Bulli Main Colliery to conduct routine underground mine surveys, prepare working and statutory mine plans, also resurvey main roadways to identify errors in original surveys which would impede proper installation of a trunk conveyor belt. (c) 1975 to present: (i) As teacher and later Head of Division of Mining New South Wales TAFE, I taught and then supervised mine survey trainees in the area of mining technology and mine survey practice, and following my resignation from TAFE, at the request of my successor at Wollongong TAFE, I supervised a small group of three to four students, studying these topics for a further year. (ii) I have also lectured and conducted field exercises for Wollongong University in the areas of mine survey practice, mining machinery application and mining legislation. (iii) Until about 2000 I provided tutorial assistance for candidates preparing for exams for mine managers certificate of competency including mine surveying. One of these students resided in central Queensland and flew to Sydney on occasions to attend tutorials. (iv) Ending about December 2002 I assisted the National Mining Industry Training Board with the validation of all new training courses for the quarrying industry including the topic of survey practice for quarry operators.

[205]

173 In an interlocutory judgment of 4 November 2003: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited and others [2003] NSWIRComm 392, I considered, amongst other matters, objections raised on behalf of the defendants to the admissibility of Mr Adams' expert witness statement. One of the grounds of objection raised was the field of specialised knowledge that underpinned Mr Adams' statement. The defendant's counsel submitted that Mr Adam had insufficient specialised knowledge to support the opinions he expressed, particularly in the area of mine surveying. 174 In that interlocutory judgment and on the above point, I said: [9] I refer to my earlier judgment already referred to in dealing with expert witness statements of Mr Anderson, particularly para [31]. In applying the concept of specialised knowledge as expressed in that paragraph and as expressed by reference to the judicial authorities referred to therein, I am satisfied that Mr Adam does have specialised knowledge and expertise in the area of mine management and mine surveying and that, on a prima facie reading of his statement, the opinions he expresses are based wholly or substantially on that expertise. I will return to that issue later. [10] I turn now to the argument raised by counsel for the defendants as to Mr Adam's statement and its compliance or otherwise with Schedule K, in particular para 5. [11] On the face of it, Mr Adam's statement purports to comply with Schedule K, para 5. That is, from para [27] onwards his statement is structured such that he identifies facts, matters and assumptions in relation to a particular subject matter followed by the opinion he then expresses in relation to the previously identified facts, matters and assumptions. [12] Counsel on behalf of the corporate defendants reminded me of the decision of Hayden JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85] and, in particular, the following passage: So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. That is, the expert's evidence must explain how the field of specialised knowledge in which the witness is expert, by reason of training, study experience, and on which the opinion is wholly or substantially based applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is, strictly speaking, not admissible and, so far as it is admissible, of diminished weight. [13] In many respects it was submitted that Mr Adam's statement does not meet the test as expounded in the above passage. On this issue, I refer to my earlier judgment on the admissibility of the expert witness statement of Mr Ian Anderson and, in particular, para [25] of that judgment. [14] For the moment it is not possible to come to a concluded view having regard to those matters as identified by Hayden JA in Makita to which I have been referred. That is simply because Mr Adam's opinions and the facts, matters and assumptions that he details in his statement have not been subjected to any scrutiny or testing by way of cross-examination. [15] As I indicated earlier, on an initial reading of his statement, structured as it is, Mr Adam's statement has the appearance of compliance. It may be that at the end of the day the opinions he expresses, relying on the facts, matters and assumptions that he does, cannot be identified and properly and relevantly established in a suitable evidentiary way. [16] If Mr Adam's statement is to be challenged in that way, as it has been, more has to be done by the defendants than simply assert that proposition. Mr Adam's statement must be tested in accordance with the principles expressed by Hayden JA in Makita , referred to above. That process of testing can and should be done by the evidence and cross-examination of Mr Adam that goes directly to those issues. Only then can the court come to a concluded view as to the evidentiary soundness or otherwise of Mr Adam's opinions and the weight to be attached to such opinions. [17] On this issue, I am of the view that the proper course would be to have Mr Adam give evidence and be cross-examined as to the basis of his opinions in accordance with the principles required to be satisfied and as expressed by Hayden JA in Makita .

[225]

186 In relation to his overall experience in the United Kingdom, Professor Thomas detailed that in his statement relevantly as follows: I started underground at age 18 pushing wooden mine cars bent over double in a 1.2 m high roadway, and I moved up to the face as a trainee and learnt how to undercut coal with a pick, and load the cars by hand, so I have a close acquaintance with pillar and stall (or Welsh bord) hand mining, and the necessary mine layouts for hand working with horse and wire rope haulage. I also learnt stepped longwall methods. The UK mining industry in 1948 was still using turn of the century mining methods in small mines as a result of the 1920s depression and the war period, but it gradually mechanised. I was studying part-time at a technical college for my mine manager's certificate while I worked, and as a result I was put onto all the new-technology jobs. I helped install some of the mine's first belt conveyors, and operated coal cutters and any other machinery supplied. After two years I received a National Coal Board scholarship and somewhat reluctantly reduced my high contract rate earnings to read mining engineering at Birmingham University. I remained on the colliery books, and each vacation I worked underground to boost my income. Because I was then a casual, but valued worker, I had a wide range of odd jobs, mainly in the repairer classification because I was a skilled collier. We dug out buried machinery, fixed up roof falls, closed off old workings or opened new faces, recapped haulage ropes, filled in for absentee equipment operators, and any other problems that occurred. After my first degree and a Ph.D. in basic rock and coal fracture properties, I started work as a cadet engineer in the National Coal Board's Directed Practical Training (DPT) program. It was a structured program designed to provide a range of experience for the three years that graduates needed to sit for their certificate of competency to be a coal mine manager. … … My controller in the Survey Office as a DPT was H.R. Herbert, who was the chief author of the National Coal Board's Code for Surveying Practice and Statutory Plans. He was the Area Chief Surveyor, and R.J. Orchard, author of the NCB Subsidence Engineer's Handbook, had been the Property Manager and Chief Surveyor for the West Midlands Division before moving to the London Headquarters as Chief Subsidence Engineer. … … As a result of my training, I was aware of the NCB Surveying Practice Code, which was issued in 1951, and I still have a copy of it. As part of my survey work, and in the continuation as an engineer in the Area Planning Office, I had the task of reviewing the older mine workings to examine what areas of coal might be available for remnant extraction with the constraints of multiple safety barriers between old small mines, many of them closed, and under canals, railways, bridges and built-up areas. Consequently I became familiar with old mine plans. As the only mining engineer in the Area Planning Office, where everyone else was a surveyor (eight of them, from memory, plus the Deputy Production Engineer), I handled special planning projects and monitored the routine five year rolling plans, and the production planning and face scheduling. … … I helped deal with mine water, open fires, sealing off districts, roof falls, and a collection of other problems that I was transferred into, before I was promoted to be a research engineer at the headquarters' controlled Mining Research Establishment (MRE) at Isleworth in London. I was the shafts and tunnels field engineer and consultant at MRE over that period, and again as the only mining engineer in my division in a mixture of physicists, geologists, a statistician, and a mechanical engineer, I provided the mining experience for all the projects.

[253]

207 Ultimately, despite the initial misleading impression that Professor Thomas' opinion created in relation to his estimate of crush zones based on the Gupta and Singh article, he summarises his opinion in relation to barriers as follows: My own feeling, and probably that of the Water Dangers Committee seventy years ago, is that a mathematically exact calculation of a safe barrier width is impossible because there are too many assumptions needed to approach the topic as engineering design using material with known properties. Rock and coal strata in situ have inherent geological properties that make them difficult for use in practical design to precise levels. All too often the real properties of bulk rock have been derived by back-analysis of failures. Experience has shown that safety factors in mines need to be a minimum of at least two, and for some critical items such as winding ropes the factor of safety is six, and is eight in some circumstances. It seems that about 20 m of intact rock or coal will hold back a hydrostatic head of water if one can guarantee there are no geological problems. The real problem is whether an engineer can guarantee that the 20 m is actually there. There are recorded instances of accidental holing within a mine's own adjacent workings, so how can one mine trust another mine's plans, even if they are relatively recent. Mine surveyors make their initial plots of extracted workings from the deputy's section plan. Each shift the deputy is supposed to mark his copy with the coal that has been extracted, and show the heading advance or the pillar extraction. If the surveyor's quarterly survey, or work between the quarterly surveys, does not pick up the maximum advance of a heading, then the record tracing compiled from the colliery working plan will be in error if a deputy makes a mistake on his daily sketch. Once extraction retreats from a panel the surveyor cannot go in under unsafe roof to confirm the maximum advance. Doubling a safety pilar to 40 metres by requiring adjacent mines to leave 20 m each should provide a margin for error, and if a mine leaves a notional safety barrier of 40 m between their current working and old workings, that is a notionally safe barrier. The fact that the safety barrier is only notional is shown by the legislation that requires holes to be bored ahead of workings to make sure that they will not hole into a body of water or gas under pressure.

[313]

236 The nub of the defendant's argument on this point is that the above Regulations expressly permits the Mine Surveyor (and through him the corporation and Mine Manager) to rely, without liability, upon the accuracy of previously certified mine plans. Relevant to that point, it was stated, the expression 'mine record tracing' is defined in clause 5 of the Survey and Plan Regulation as meaning a complete and accurate copy of the mine working plan. In turn, 'mine working plan' is defined as meaning the mine working plan required to be kept under clause 12(a) of the Regulation. Reference to clause 12 and, as a consequence, clause 13 of the Regulation discloses that the mine working plan is to be prepared by the Mine Surveyor and kept by the Mine Manager. Accordingly, it was submitted, relying as the defendants did on the Record Tracings 523 Sheets 2 and 3 obtained from the DMR as being certified mine plans and which, on a proper analysis, could be the only cause of the risk, was an act or omission expressly required or permitted in the terms as expressed in s33(2) of the OHSA. Therefore, it is said, no offence lies under ss15 or 16 of the OHSA. In short, the defendants relied on the same submission placed before the Court relevant to the operation of s33(2) of the OHSA and s138(1) of the CMRA. 237 For the same reasons as enunciated by me in dealing with that point raised on behalf of the defendants, I reject the primary submission that clause 9 of the Survey and Plan Regulation provides a threshold defence to all of the charges before the Court. In the first instance, clause 9 applies to a mine surveyor in relation to surveys certified by a 'former surveyor' or certified as correct 'by another surveyor.' It has no application to any other defendant before me, corporate or personal. As well, clause 9, as part of the Survey and Plan Regulation must be read in the context of the CMRA 1982, the Regulations and, in relation to the issue of mine surveys, the Surveying and Drafting Instructions for Coal Mine Surveyors (Underground) 1984. It must also and, more significantly, be considered in the context of the CMRA and the Regulations as being associated occupational health and safety legislation, the overriding objective being the requirement to secure the health, safety and welfare of persons at work.

[316]

240 As a matter of construction, the absolute or general duties imposed upon particular mine officials at the Gretley mine and in particular the Mine Manager, cannot be said to be abrogated by the provisions of clause 9 of the Survey and Plan Regulations. For example, in accordance with s37(1)(d), the Mine Manager shall have full charge and control of all persons employed at the mine and all operations at the mine. As well, the Mine Manager is subject to an absolute obligation to avoid inrush under clause 8 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 specifically Part 3 - Prevention of Inrushes. Section 56 of the CMRA permits a Mine Manager to delegate to a mine official, in writing, the exercise of the functions conferred or imposed on the Manager under the CMRA. That power of delegation is quite specific in that not only must it be in writing but it is also required to be counter-signed by the person to whom the authority is delegated and may be revoked wholly or partly, in writing. In short, for a Mine Manager to delegate his or her responsibilities and obligations under the CMRA cannot be done lightly or implicitly. In the facts and circumstances before me, there was no delegation by the Mine Manager to any mine official, including the Mine Surveyor, pursuant to the provisions of s56 of the CMRA. As well, the provisions of clause 8 of the Survey and Plan Regulation state relevantly: 8. A mine surveyor shall - ... ... (f) prepare, or supervise the preparation of, all plans, drawings and sections required to be prepared or kept by this Regulation or the Surveying and Drafting Instructions and shall certify the accuracy of all such plans, drawings and sections in writing thereon; (g) where the mine surveyor has any doubt as to the accuracy of any plans, drawings or sections of the mine not prepared by the mine surveyor, or under the supervision of the mine surveyor, which may have an effect upon the working and operation of the mine or the safety of persons at the mine, draw such doubt to the attention of the manager of the mine;

[426]

337 Further on that issue see Haynes v CI & D Manufacturing Pty Limited (1994) 60 IR 149 at 157-158 where a Full Court of the Industrial Court stated: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace . The OHS Act, as its long title indicates, has the prime purpose '(t)o secure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. (emphasis added) ... ... The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

[469]

379 Evidence about the role of record tracings in mining activity was given by Miss Marjorie Roberts (now retired) who had been the custodian of mine record tracings at the DMR for many years. In her evidence Miss Roberts confirmed that the original mine working plan is always retained at the mine site and a copy of the mine working plan is sent to the DMR, generally within three months of the preparation of the mine working plan and thereafter every six months. As Miss Roberts' statement explains: [3] RTs are required to be submitted to the Chief Inspector of Coal Mines within six months from the time when the first coal has been extracted, then every six months after that they are sent out by the Department for an update by the colliery until the date of discontinuance or abandonment. The Department holds copies of old and abandoned mine plans (RTs) within the State of New South Wales; these plans are available to the public for viewing or to obtain copies. Copies of current RTs may only be issued with the written consent of the Chief Inspector of Coal Mines or the mine owners. [4] It is also my job to issue the new RT numbers to any new mine and, if requested by the Mine Surveyor, to advise the correct map sheet number from the State ISG grid numbering system. [5] Before forwarding RTs to the mines for update, I usually phone the surveyor to find out which sheets are needed for the last six months' workings. Mine plans have been lost in the past, so it is better to send only the sheets needed for that particular period. [6] When the plans are returned, I have to check them against a checking sheet, a blank copy of which is annexed 'A', to make sure they conform with the requirements of the 'Survey and Drafting Instructions for Coal Mine Surveyors'. They then have to be sent out for scanning in order to be able to produce 1:10,000 plans of the RTs for ourselves and for the Newcastle Mine Subsidence Board. [7] In the past, RTs were used as a means of checking production of mines for royalty purposes. However, nowadays, the checking is done directly by royalty officers, who visit the mines in person. [8] The Coal Compensation Board uses information in RTs for purposes of calculating compensation to private coal owners whose rights were taken by the Government in 1982. Officers of the Board visit the Department from time to time to view relevant RTs and take prints off them as required.

[498]

(a) in the case of an underground or open cut mine, a separate plan for each seam being worked in the mine showing the information specified in subclause (3); (b) in the case of an open cut mine, a separate cross section sheet corresponding to each sheet of the plan referred to in paragraph (a) showing cross sections of the open cut working and such other information as may be required in the Surveying and Drafting Instructions for open cut mines, except that where separate plans are prepared and kept for 2 or more seams being worked, 1 cross section sheet corresponding to each sheet of the plans will suffice to illustrate composite sections of the seams worked within the area shown on the cross section sheet; (c) such sections of the seams being worked in the mine as may be necessary in the opinion of the manager of the mine or the mine surveyor to show any substantial variation in the thickness or character thereof; and (d) such sections may be necessary in the opinion of the manager or the mine surveyor to enable the relation between the seams being wor ked in the mine to be determined at any place within the boundaries of the mine. (3) The mine working plan shall show - (a) all current workings of the mine in the seam or seams of the mine up to a date not more than 3 months before the making of the plan; (b) any workings of the mine in the seam or seams which are abandoned, discontinued, disused or worked out ; (emphasis added) (c) any current workings, up to a date not more than 6 months before the making of the plan, of any other mine and any abandoned, discontinued, disused or worked out workings of any other mine located within a distance measured horizontally of 100 metres outside the boundaries of the colliery holding for the mine; (d) such workings or goaf areas in the seam or seams of the mine as contain or are likely to contain an accumulation of water or gas which may be a danger to the mine or part thereof; (e) any barrier or protective pillar to be left in the mine in the seam or seams and which is within a distance measured horizontally of 1 kilometre from the workings of the mine in the seam or seams; (f) in the case of an underground mine, all shafts, outlets, drifts or staple shafts from, to or within the mine; and (g) such other information as may be required to be shown in accordance with the provisions of this Regulation and the Surveying and Drafting Instructions.

[500]

37 Functions of managers (1) Subject to any instructions given to the manager of a mine or to another person employed at the mine by: (a) the owner of the mine, (b) a superintendent of the mine, or (c) an assistant superintendent of the mine, (excluding instructions which are required under section 52 or 54 to be confirmed in writing and which have not been so confirmed), the manager of a mine: (d) shall have full charge and control of: (i) all persons employed at the mine, and (ii) all operations at the mine, (e) shall enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, and (f) shall have such other functions as may be conferred or imposed on the manager by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder. (2) Without limiting the generality of subsection (1), the manager of a mine shall: (a) appoint the requisite number of officials of the mine required by this Act or the regulations (other than officials who are senior to the manager) to exercise the functions conferred or imposed on those officials by this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder, (b) ensure that the machinery, apparatus and equipment in use at the mine is maintained in a safe working condition, (c) if the mine is an underground mine: (i) ensure that the height and width of roadways in the mine are at all times not less than those specified in the transport rules made in respect of that mine, and (ii) ensure that the roof and sides of working places and roadways in the mine (other than roadways located in a part of the mine which is fenced off in pursuance of the regulations) are adequately supported where necessary for safety, (d) ensure that officials at the mine are in possession of such information and plans as are necessary to enable those officials to ensure that all operations at the mine for which they are responsible are carried out in a safe manner, (e) ensure that the officials appointed by the manager are trained in the exercise of any functions which they are required to exercise under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder,

[561]

457 The evidence of Mr Adam was that it would be important for a surveyor to see the original of Sheet 1. He provided the following reasons for the opinion: (a) The surveyor would be looking for a plan which was as close to the original mine plan as could be obtained. (b) Before the advent of computer drafting systems there was one main plan for each mine or seam - the main mine plan. It was the official working document within the colliery, drawn 2 chains one inch (44 yards to the inch). That plan could be expected to have the maximum amount of survey information. (c) The Department of Mineral Resources required that an up to date tracing of that plan should be provided every six months. (d) Every transcription is liable to create errors. Every copy from the plan, therefore, is suspect. Copies from copies become progressively less accurate. The surveyor would, therefore, be looking for the original. For that reason, Mr Adam would not go to the Mines Subsidence Board. Based on his knowledge of the Mines Subsidence Board their statutory purpose does not require survey accuracy. Their plans are determined by 'the best fit'. They are prepared at a high reduction ratio (1:10,000) and then expanded to 1:4000. That process itself is likely to induce error. According to Mr Adam, that fact is not significant to this event, but it simply underlies that the Mines Subsidence Board is not the place to go to obtain survey standard accuracy. All information they have, moreover is derivative. The derivation process itself involves compromises and the potential error. (e) Mr Adam would therefore go to the charting branch of the Department of Mineral Resource and ask to see everything they have in relation to the mine. (f) Mr Adam said he would not be looking for a copy of the original, but the original itself. If the original is manually traced, there is still the possibility that something will be missed, or mistranscribed. If it is photographically reproduced, there is the possibility that something will be lost in terms of definition either in the ink or markings on the plan.

[566]

462 The basis for Mr Adams' opinion to that effect is summarised as follows: (a) It very difficult to overlay the workings in two seams so that roadways are superimposed on top of those below. (b) The regularity in shape and alignment of the black workings is likely to be an idealised or stylised plan, rather than an accurate survey plan. The plan implies that the miners were able to drive roadways to an exact alignment, to turn the boards at exact distances and drive them at exact widths. In contrast, the red roadways show more detail of deviation. This is consistent with general working practice in an era of hand working. (c) There is nothing on the black workings that indicate that the workings had been drawn as a result of a survey conducted by a mining surveyor. (d) The air shaft does not line up on the two plans. (e) The red workings are incomplete. This supports the hypothesis that a resurvey was done and the only area that they were particularly interested in was the actual position around the faces at that time. (f) If the red workings represented the bottom seam it would be extremely difficult if not impossible to ventilate and extremely difficult to even drive that roadway in the first instance. (g) The information in the legend (on P111) explains the doors and stoppings lines drawn on the plan. From this information the general ventilation circuit of the mine can be determined for the working shown in black but not those in red. The black workings may have been drawn to depict where the air would flow through the mine. (h) P111 provided strata section details but no mention of workings in a second seam. (i) The actual record tracing (P111) has no reference either in the title, the legend or elsewhere to suggest that two seams were worked. (j) There are no survey dates shown in black on the plan but the red workings show survey dates which is consistent with re-survey. It is unlikely that a surveyor would work to the degree of detail that is show in the red workings and date his work and then in the same mine not provide similar information in the opposite seam. (k) The discrepancy between the length of the roadways to the staple shaft. There is no connection shown between the two seams. The usual function of a staple shaft is to connect two seams. (l) There are no lines on the plan that indicate the limit of workings at the time of abandonment. You could never be sure that this plan was up-to-date at the time the mine was closed.

[599]

487 What Mr Carroll received was the file Ms 28/7067. That file was not located within the DMR but at the State Archives. Although the file was located relatively quickly at State Archives, the process of successfully producing such a file is not an easy task. Evidence about the complex and difficult nature of the task was given by Ms Emily Hanna, a Senior Archivist, Access and Information (Western Sydney) with the State Records Authority of NSW. Ms Hanna's evidence was predominantly in sworn statement form. In that, she stated: [6] My job as Senior Archivist, Access and Information, is to oversight and manage the Western Sydney reading room. This includes assisting the public to locate material in the State archives collection. [7] I have been asked to assume that State Records has been approached by a person (the researcher) who requests documentation about the Young Wallsend Colliery which is near Newcastle. [8] I have also been asked to assume - the researcher makes an enquiry about the Young Wallsend Colliery and has the following information about documentation concerning the colliery: (a) Ms 28/7076 (b) Misc 12:2071 [9] An enquiry such as the one outlined in paragraph 8 above is very complicated and would require a high level of skilled research. Many researchers would not have the time, experience or understanding of the records to complete the research successfully. The research process is outlined more fully later in the statement. [10] The enquiry is complex because of the original record keeping practices of the Department and the poor descriptive information provided at the time the records were transferred to State Records. In addition, the infrequency of such enquiries means there are fewer past staff experiences from which to draw a more intimate knowledge of the records. [11] State Records staff assist in identifying and locating likely sources for researchers but it is not our policy, nor within our resources, to conduct further research on the behalf of most clients. This enquiry would demand a greater level of staff assistance than most, with the researcher guided step by step through research methods by reading room staff. [12] Because the enquiry relates to a colliery and from my knowledge of the records I would assume that Ms 28/7076 and Misc 12:2071 are possible references to Department of Mineral Resources or its predecessors ("DMR") Departmental files from 1928 and 1912 respectively. [13] Many NSW State archives that are more than 30 years old are open to public access. This includes the records of the DMR. I would therefore be able to assist a person with enquiries about locating Young Wallsend Colliery documents. [14] If the researcher simply asked to locate documentation about the Young Wallsend Colliery I would show the researcher how to consult the finding aid called the Concise Guide to the State Archives of NSW ("the Concise Guide"). The version of this aid used in the reading room in 1996 is approximately 2200 pages in length. [15] The Concise Guide is a comprehensive finding aid to the holdings of State Records received up to July 1991. [16] In consulting the Concise Guide I would direct the researcher to the heading 'Mines later Mineral Resources.' Under that heading there is a list of all record series transferred from the DMR prior to 1991. [17] Under the Mines heading there is a section titled "E Coal Fields Branch." This section begins on page 54 of the Concise Guide (Ma-Mi). A copy of this section of the Concise Guide is attached and marked "A." [18] At series 2 under the heading "Coal Fields Branch" it states:

[648]

528 Having said that, it does not seem to me that strictly complying with a narrow view as to the meaning of clause 13(3)(b) in relation to the depiction of old workings on the current mine working plan can be seen as discharging the defendant's absolute obligation to provide for the health, safety and welfare at work of all its employees. The regulatory provisions of the CMRA 1982 are minimum regulatory provisions that must be met. Overriding those minimum regulatory provisions is the obligation on employers to 'ensure' a workplace free of potential risk to safety. The defendant knew that the Young Wallsend old workings in the Young Wallsend and Borehole Seams were full of water. The need to be alert to the potential for inrush with all its known attendant consequences was very real. The presumed old workings in the Borehole Seam were 18 metres below the mining activities taking place in 50/51 panel. The depiction of the presumed old workings in the Borehole Seam were within 100 metres or so to the planned direction of mining activities in 50/51 panel. In fact, if the presumed depictions of the old workings had been accurate, the mining activities in 50/51 panel would have mined directly above those presumed old workings in the Borehole Seam. There is no evidence before me that allows me to determine with certainty the mining implications of that but there was a suggestion in a question asked of Professor Thomas in cross examination that, at some earlier time, the defendants had mined over the top of known old workings with much the same vertical interburden without any untoward outcome. Nevertheless, I perceive compelling commonsense from the perspective of safety in the evidence of Professor Thomas as to the wisdom of depicting those presumed old workings in the Borehole Seam on the mine plans for Gretley. As Professor Thomas said: It is not necessary to show the complete detail of the old workings on items other that the colliery working plan, but I would consider that an outline and a warning line (as in Section 5 of Attachment 2) is essential. I do not think it is sufficient to provide a separate plan so that one plan has to be mentally superimposed on another. If the deputy's section plan, and the other working plans of the Young Wallsend seam displayed at Gretley Colliery, had carried the outlines of the presumed Borehole seam workings in the YWC and its warning barrier, all the discussions about water trickling in from the floor (Deputy McLean's evidence, Assumption M20, for example), would have had a very different impact. Rightly or wrongly for which seam they were in, water from the floor near the edge of workings supposed to be 18 m below should have raised far more alarm than for workings supposed to be over 100 metres further away. [See Coal Mines Regulation Act 1982 Section 139 (1), (2) and 4(b).]

[662]

538 In McMartin v Newcastle Wallsend Coal Company Pty Limited and ors [2003] NSWIRComm 470 I gave an interlocutory judgment in relation to objections raised by the defendants to certain aspects of Inspector Buggy's statement. In that interlocutory judgment I stated, in part, as follows: [9] At the outset, Inspector Buggy was quite clear as to the basis and extent of his expertise in the area of risk management and risk assessment. As he said on page 17 of his statement: The knowledge I possess in the area of risk management, including the use of risk assessment, is based on the application of training and experience over time, within the various roles I have held in the substantive or relief capacity with my current employer . This knowledge is based upon generic aspects of risk management and risk assessment. The writer does not profess to be experienced with any particular risk identification system or study, nor any particular risk analysis approach, which may be adopted for particular application in specialised areas. (emphasis added) [10] As well, on page 32 of his statement, Inspector Buggy confirms that he has 'no experience in the underground mining industry.' Accordingly, he says, he is 'unable to provide any direct comparison of relative performance in 1996 between the underground mining industry and industry in general within New South Wales.' He confirmed his lack of knowledge about the mining industry in evidence before me. [11] Further, Inspector Buggy's knowledge of the relevant provisions of the Coal Mines Regulation Act and Regulations was and is limited to an extract of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984 that was provided to him by the prosecutor's solicitors as part of material for him to peruse prior to preparing the statement before me. [12] Having regard to those clear limitations that Inspector Buggy himself acknowledges, I would consider the major import of Inspector Buggy's opinion evidence to be that of expressing general principles of risk management and risk assessment that, in his opinion, would have, indeed should have, been incorporated into workplace safety considerations in 1996. In his opinion, the legislative obligations imposed on employers by the Occupational Health and Safety Act 1983 , would have embraced risk management and risk assessment policies and procedures, admittedly with flexibility as to the form of such policies and procedures. Given that the Occupational Health and Safety Act 1983 applied to the mining industry as much as any other in 1996, in Inspector Buggy's opinion, the general principles of risk management and risk assessment would have applied equally to that industry, as any other. As a general proposition, that would be difficult to argue against I would have thought. What might be arguable is how those general principles were applied in practice in particular industries in 1996 specifically, in relation to the matters before me, the coal mining industry. That is the point, I believe, where the defendants take issue with Inspector Buggy as to the opinions he expresses beyond the general principles he has identified. ... ... [15] By November 1996, Inspector Buggy had been with the WorkCover Authority for just on two years. During that time he had completed a Diploma of Injury and Illness Management and Prevention with the WorkCover Authority in 1995. That, it seems, was a prerequisite for all inspectors employed by WorkCover. In short, it would be fair to say, the bulk of Inspector Buggy's knowledge and expertise in the area of risk assessment and risk management has been obtained from 1996 onwards. That he is now being asked to project his current accumulated knowledge and expertise back to 1996 and, in doing so, somehow discounting or ignoring the past seven years to a precise point in his overall memory as to expertise and knowledge at that time is, on any view, fraught with great difficulty. I accept that Inspector Buggy has generally sought to do so but that does not discount the caution that I believe should accompany the receipt of his opinions expressed in 2003 as to what were the standards applying in risk management and risk assessment in 1996 except in the most general of terms. ... ... [26] Inspector Buggy's field of specialised knowledge is the general principles of risk management and risk assessment. He has no specialised knowledge or practical experience as to the proper application of the general principles of risk management and risk assessment in the mining industry either as applicable in 2003 or, I would conclude, in 1996.

[682]

547 In Mainbrace at para [73], it was submitted on the part of the company and on the question of risk assessment 'that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse.' Clearly, having regard both to general principles and the particular facts of the matter before them, the Full Bench said at [73] - [74]: [73] Given the nature of the risk, an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident, but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and the equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focussed on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety. [74] It seems to us that, if after such a risk assessment had been carried out, the risk assessor asked himself or herself whether any action was required to ensure the safety of persons using the ceiling as a walkway the answer would inevitably have been 'yes'.

[685]

551 The requirement to be satisfied as to that was paramount. Further, such a requirement would have, should have, put the defendant on notice as to the need to obtain every available piece of information relevant to those old workings. Further, the consultative and communication process with the employees working in 50/51 panel would have alerted them to be particularly vigilant in acting upon and/or following through in relation to matters that might otherwise be considered within acceptable parameters. For example, knowing of the risk, having addressed it in a systematic way and put in place strategies to deal with the risk of inrush may well have prompted the defendant to respond more quickly and proactively to the reports of unusual water emanating in C heading in 50/51 panel toward the end of October and the first week of November 1996. The extent to which a proper risk assessment would have identified and prioritised the risk of inrush might not have been evident in such a process but, as was said in Mainbrace at [73] it 'would have at least raised the issue in the mind of the assessor'. As the prosecution submitted, and I agree: If during or after a risk assessment had been carried out on the development of the miniwall panels around the YWC, the risk assessor asked himself or herself whether any action was required to ensure the health and safety of persons working in 50/51 panel the answer would inevitably have been 'yes'. For example, the consequences of an inrush occurring in the Gretley Colliery from the workings of YWC would obviously be identified as death or injuries to workers. It would then be obvious that the location and extent of the YWC would want to be known. This would have led to pro-active action by the corporate defendants to ensure the health and safety of persons at Gretley and in particular those working in 50/51 panel, such as obtaining information on the old workings, drilling ahead, issuing instructions to employees and other persons at risk, setting an appropriate barrier on the basis that the location and extent of the workings was not known with certainty, or alternately draining the workings or abandoning work in these relatively short panels.

[723]

585 The prosecution has pleaded this alleged failure with respect to all of the three time period charges. In relation to the planning and research period which I am currently considering, the prosecution relies upon clause 8 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984, as follows: Manager's Duties 8(1) The manager of a mine shall ensure, in respect of every working in the mine, that such steps are taken as may be necessary to prevent any inrush into the workings of flammable or noxious gas from disused workings (whether mine workings or not) or of water or material that flows when wet (whether from disused workings or from any other source). (2) The manager of a mine shall take such steps as may be necessary to ensure that the manager is at all times in possession of such information as would indicate or tend to indicate the presence in the vicinity of any workings carried on, or proposed to be carried on, in the mine of - (a) any disused excavations or workings (whether mine workings or not); (b) any rock or stratum containing or likely to contain an accumulation of water which may endanger the workings or proposed workings; or (c) any peat, moss, sand, gravel, silt or other material that is likely to flow when wet. (3) In fulfilling the duties imposed by subclause (2), the manager of a mine shall have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager. (4) The manager of a mine shall ensure that - (a) at least 2 separate means of egress to the surface are provided from each ventilation district and from any other area in which persons regularly work so that, in the event of either means of egress becoming impassable at any point, the other will afford means of egress to the surface; and (b) those means of egress are adequately signposted so as to minimise the risk of persons losing their way.

[757]

616 The numbered further particulars that are not admitted in whole or in part are: [1] The defendant was the owner of The Newcastle Wallsend Coal Company Pty Ltd ("Newcastle Wallsend"). [3] The defendant employed Mr Alston, Mr Coffey, Mr Nicholls, Mr Pritchard and Mr Shacklady as Under-managers ("the employees") at the Gretley mine. [4] On or about 6 September 1994 an application was submitted to the Department of Mineral Resources ("the Department") being an "Application for Approval to Use the Miniwall Mining Methods for Panels MW39 to MW 45". On or about 27 October 1994, a redrawn plan was forwarded to the Department . [5] The Application was approved on 5 January 1995. [6] On or about 11 August 1995, a variation was submitted to the Department being a "Variation of Approval to Extract Miniwall Panels MW39 - 45". [7] The Variation was approved on 1 September 1995. MW 44 - 45 later became MW 50 - 51 ("50/51 panel"). [8] There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from old coal mine workings namely Young Wallsend coal workings. [9] Between about 16 September 1996 and about 14 November 1996 employees of Newcastle Wallsend and other mine workers were required to work on the development of a roadway (known as "C" heading) in MW 50 - 51 ("50/51 panel"). [10] 50/51 panel was being developed in the direction of the Young Wallsend coal workings. [11] The Young Wallsend coal workings were full of water and under a head of pressure at the level of 50/51 panel. [12] The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees of Newcastle Wallsend and/or other mine workers. [13] The employees were required from time to time to work in 50/51 panel. [14] On 14 November 1996, the continuous miner holed-in to the Young Wallsend coal workings. [15] The holing-in resulted in an inrush of water into "C" heading of 50/51 panel. [16] On 14 November 1996, an employee of Newcastle Wallsend and three other mine workers suffered fatal injuries at Gretley mine when they were swept away and drowned by the inrush of water. [17] On 14 November 1996, two employees of Newcastle Wallsend and two other mine workers were exposed to the risk of injury.

[774]

632 The prosecutor particularises the alleged failures as follows: (a) Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. (b) Allowing the operation and use of the continuous miner at the face of "C" heading. (c) A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. (d) A failure to ensure that there was any adequate barrier between where the employees were working and the Young Wallsend coal workings. (e) A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. (f) A failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings. (g) Allowing mining operations to proceed in 50/51 panel without draining the Young Wallsend coal workings. (h) A failure to investigate, adequately or at all, the Deputies written reports on 1 November 1996, 4 November 1996 and 13 November 1996 and two oral reports on 4 November 1996. (i) A failure to inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings. (j) A failure to inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure. (k) A failure to instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. (l) A failure to take such action as may have been necessary in the interest of safety of the mine and the employees. . 633 In the overall facts and circumstances surrounding the charge before me, the genesis of many of the defendant's alleged failures derives from what I characterise as its primary failure to properly research the location and extent of the Young Wallsend old workings. Fundamental to that primary failure was the defendant's reliance on RT 523 Sheets 2 and 3. It seems incontrovertible to me that once that failure is established, as it has been, then to a large extent, the other charges and the particularised failures therein within them arise derivatively from the primary failure. I have already stated as much in relation to a number of the particularised failures in the planning, research and assessment charges. In the current charge, that is also the case, I believe, in relation to failures (a), (b), (c), (d), (e), and (f). As to alleged failure (g), I will comment on that in due course.

[790]

641 As well, in discussions with Mr Romcke after August 1994, Mr Flett stated: I asked about the draining of the Young Wallsend seam workings and Mr Romcke said words to the effect of: We have considered that but it presents some major problems for the mine. The development of the headings is some distance away and we would have to have time to drive roadways to drain the area and would need extra pipes and pumps installed and an area for water standage. I cannot afford to stop mini-wall development or the mine will close if the mini-wall stops for too long. He also said, 'There are also environmental problems of getting the water out of the mine'. I accepted this proposition after some further questioning on the above details and decided to accept the barrier principle. Mr Murray, the Mine Surveyor, was present at the meeting and I asked: 'How much water is in the old workings?' He replied: 'The shafts were about half full before they were filled'. I took this to mean that the water level in the shafts before any filling was approximately 60-70 metres from the surface. I agreed fifty metres was an appropriate barrier as I was aware that Liddell Colliery was at this time operating with a 40 metre barrier between the Liddell mine and the abandoned Foybrook mine with a head of water of just over 100 metres against the barrier, and had been doing so for approximately six years. I was aware of some geotechnical work that had been carried out by Liddell Colliery that had shown that a barrier of approximately 30 metres would be a long-term stable at this head of water. The height of the coal seam at Liddell was approximately three metres. I was Inspector at Liddell Colliery at about this time. I did not discuss my experience at Liddell Colliery with the Mine Manager. Based on this knowledge, I had no doubts as to the reliability of a barrier of less than fifty metres. There is also no doubt in my mind that if the seam correlation of the Young Wallsend workings had been correct the barrier left would have been more than adequate. (emphasis added)

[795]

645 Reference to the 1927 Committee Report is reference to the 1927 UK Water Dangers Committee Report already referred to in this judgment. In making reference to it, Professor Thomas refers to factors identified by the Committee in determining the width of barriers as follows: No general rule can be laid down to determine the thickness or width of a barrier necessary to retain water. The circumstances of each case must decide the matter. Generally it is clear that Mining Engineers have designed such barriers with a view to resisting the percolation of water, and the width of barrier necessary to prevent percolation is invariably greater than that required to prevent the dislocation or collapse of the barrier in such a manner as to endanger life by inrush. Factors in deciding the width of a barrier - The principal factors which have to be taken into account in deciding the width of a barrier are:- 1. The thickness of the seam and its depth from the surface. 2. The friability of a seam and its porosity. 3. The nature of the parting between the seam and its roof and floor. 4. The inclination of the seam and the direction of the barrier in relation to the inclination. 5. The maximum pressure of water to which it may be subject. 6. The porosity of the strata above and below and their tendency to close tightly in the waste. 7. In some degree, the system of working the minerals at the sides of the barrier, and the support that may be afforded by the worked out area, for example, by packing. 8. The degree to which its strength is diminished or increased by fault fractures and their direction. 9. The risk of disturbance by workings under or over the barrier. It is impossible to lay down the degree of importance to be attached to each of these factors. It will vary with every seam and in every coal field. The decision as to the design of a barrier must be left in the hands of those with knowledge and experience of the particular locality. So far as we have been able to form an opinion by the study of past occurrences it may be safely so left.

[796]

646 In considering the issue of barriers, the Water Dangers Committee was considering the then provisions of s68 of the Coal Mines Act 1911 (UK). It came to the view that s68 was held to be defective, relevantly, because it was stated 'The Section has not been held to apply to water over or under an approaching seam'. In suggesting the application of the principle of deciding each case on its merits, the Committee Report stated: The variety of conditions under which danger from accumulated water in mines occurs, and the diversity in the degree of knowledge of the position and outline of disused workings likely to contain water, are so great that in our opinion it is impossible to frame any workable rule or set of rules defining in detail the precautions necessary to avoid danger. The evidence before us has clearly proved that the conditions and the degree of risk both vary infinitely. We recommend that the principle governing the amendment of Section 68 which clearly is necessary, should be to make provision for each case of danger, or apprehended danger, to be considered upon its merits. The consideration of recent as well as of former accidents has driven us to the conclusion, however, that the detail of the precautions to be observed cannot justifiably be left in all cases to the sole discretion of one person, and we therefore recommend that the Manager should be required to taken steps similar in principle to those required by Part V of the General Regulations of 30th July, 1920, as to workings under moss. Notification on approach - The Manager should be required to notify the Divisional Inspector, and the representative of the persons employed in the mine, upon any working approaching within 100 yards in any direction of any place known or likely to contain accumulated water, and to communicate to these two parties the details of the precautions which he proposes to take, having regard to the circumstances and the reliability of the information as to the position and extent of the 'place.'

[820]

669 As a mine Deputy, Mr McLean had a number of responsibilities. Many of these are spelt out in the Coal Mines Regulation (Managers and Officials - Underground Mines) Regulation 1984 particularly in Part 6, Deputies and Part 7, Inspections and Reports of that Regulation. The provisions of clause 64 and 65 of that Regulation provide the obligatory inspections and reports by a mine deputy as follows: [64] (1) Before the commencement of any shift in a deputy's district (production), a deputy appointed by the manager of the mine for that purpose shall inspect every part of that district in which persons are to work or pass or which are temporarily standing places. (2) An inspection referred to in subclause (1) shall be made not earlier than 4 hours before the commencement of the shift. (3) For the purpose of subclause (1), 2 or more shifts succeeding one another without any interval shall be deemed to be one shift. (4) A deputy making an inspection of a part of a mine in pursuance of subclause (1) shall inspect - (a) for the presence of flammable or noxious gases; (b) the state of the ventilation; (c) the state of the roof and sides; (d) the general safety of the part of the mine inspected; (e) all falls, cavities, seals and stoppings along the course of the main ventilation current on the intake side of the last working place; and (f) the edges of goaves and waste workings. (5) No person, other than a mining official senior to a deputy, shall pass beyond a deputy's station which is situated in a deputy's district (production) unless the deputy of that district authorises the person to do so or has indicated by a notice in the station which is signed and dated by the deputy that it is safe to do so. (6) The manager of a mine shall, in respect of every deputy's district (production) in which persons are working, appoint a deputy to inspect - (a) at intervals not exceeding 2 hours - every place in which a continuous mining machine is operating; (b) at intervals not exceeding 4 hours - (i) every place in which persons are working and where the roof and sides are removed, supported or interfered with; and

[847]

690 Overall it is apparent that, when reports of water in 50/51 panel were made, they were investigated. Admittedly, this investigation took place against the background of the presumed old workings of the Young Wallsend Colliery being as depicted on Sheets 2 and 3. As far as the Deputies and other mine workers were concerned (and quite possibly the Undermanagers) the only Young Wallsend old workings they knew of were in the Young Wallsend Seam and they were some considerable distance away. The presumed old workings in the Borehole Seam were never depicted on any mine or section plan for Gretley. There is no evidence before me to enable me to conclude with certainty that, apart from the Mine Managers and the Mine Surveyor, other mine officials including the Undermanagers and Deputies as well as the mine workers were ever informed about the presumed old workings in the Borehole Seam. If they had, whether it would have made a difference as to the way in which the reports of water were investigated in early November is not clear on the evidence. As Professor Thomas stated when asked what would be the appropriate response of mine management to small inflows of water or leakages when developing the present workings of an underground coalmine towards old colliery workings: This is probably the hardest question of all to answer. There are statutory requirements for supervisors (e.g. Clause 9 of the Managers and Officials - Underground Mines Regulation 1984 ) to investigate any safety problems brought to their notice. Clause 13 requires a manager to investigate any complaint, and clauses 28 and 39 require undermanagers specifically to do that. In fairness to Mr Coffey in respect to his statutory duty, he glanced down the statutory form given to him, and in a manner described in training manuals as management by exception, he noticed that one of the answers on the form was not what he expected to see. Mr Coffey was in the office with Mr Shacklady but immediately called Mr McLean back to ask him to explain (page 1405 of the transcript - Assumption 20 - McLean). I was not party to the discussion but Mr McLean and Mr Coffey could be said to have investigated the complaint by virtue of the interchange of views. The problem that I see is that the investigation in the undermanagers' office was apparently flawed by the fact that Mr Coffey's plan and the deputy's section plan indicated that the YWC workings in the 'upper seam' were still far enough away for it to be unlikely that the water was seeping through from the old workings in the Young Wallsend seam, and there was either no indication of the presumed subjacent Borehole seam workings on those plans, or the officials had not been warned of their potential danger. There was no real reason for Mr Coffey to suspect that water was likely to inrush through the floor, so the problem did not appear urgent. There were other possible reasons for the water, as in other parts of the mine.

[848]

691 On the same issue, Mr Adam stated: As an Undermanager if I received a report about the existence of water in a development roadway my response to the report would depend on my knowledge of the mine, or that part of the mine, and the general seam conditions. If it was a mine known for its water problems I would probably review the report simply as one that may require me to change operational procedures. If a mine did not have a history of water in the seam or surrounding strata I would arrange for additional examination of the area to be made. In some mines water is relatively unknown and the faces are quite dry and therefore the presence of any water is worth noting. If a mine has experience of water in the strata appearing and disappearing and then returning, depending on the porosity of that particular seam, the Deputy would be within his right and within his duty to report it. If the Undermanager on that or some other shift went to the place and looked at it and saw something that in his opinion was consistent with normal conditions and was not, in his opinion, an abnormal condition, I believe it would be within be within his right to say 'well I've had a look at it and I believe there is nothing there of any great danger'. This is so particularly if he had referred back to the plan and in his belief the face was 100 meters away from the known hazard. I believe that would be within his normal duties and a responsible response to the original deputy's report. (emphasis added) If the conditions were totally abnormal to the mine or to that particular part of the mine I believe he would have an obligation to report it to the Undermanager-in-charge or the Manager immediately because that water may not necessarily be coming through that 100 metres but it could have come from above or below or through some geological abnormality. There could be a number of reasons why water could traverse 100 meters or strata without necessarily even requiring the presence of other mine workings in the area.

[962]

794 In Cleary Bros, Walton J received the relevant authorities as to the proper meaning and application of the words 'reasonably practicable'. Amongst others, he considered the judgment of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 (particularly at 712) as well as the decision of the High Court in Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481. In summation, his Honour said at 206-207: It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle. At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

[976]

798 In the context of the overall proceedings before me, what was reasonably foreseeable and should have been considered by the defendants was the risk of inrush if the defendants did not research and accurately identify the location and extent of the Young Wallsend old workings. The risk of inrush from old workings, known to be full of water, was real. It was imperative that the defendants approach mining activity within the vicinity of known old workings with great care and caution and by adopting the principle well established in relation to the dangers and risks of inrush. Those principles were referred to by Mr Adam by reference to and adoption of well known texts used as a teaching resource for mining studies in NSW. One such text Mr Adam referred to was Colliery Explosions and Recovery Work: a text book for Candidates for the first class Managers and Under Managers Certificates: J W Whitaker and H L Willett: 1946: Pitman & Sons (UK). In Chapter XX of that text, which Mr Adam adopts and acknowledges as valid principles, the following appears: Serious accidents involving the simultaneous loss of many lives at collieries fall into three main categories: (1) firedamp explosions; (2) coal-dust explosions; and (3) inundations. It remains to treat of the third class, namely, inundations, or inrushes of large quantities of water into the mine. In recent years there have been two or three grave accidents from this source. ... The precautions to be observed are (1) The making of thorough inquiries regarding all old workings. (2) The inspection of all plans of previous workings. (3) The recording of the results of (1) and (2) on a special plan or on the working plan. (4) The issuing of instructions to the mine officials and workman to report at once any unexpected or serious inflows of water. (5) The carrying out of the Coal Mines Act Regulations regarding the procedure to be adopted when approaching old works and when working under moss. ... the accuracy of old plans must always be questioned until proved. (emphasis added)

[1022]

831 Section 8Y of the Taxation Administration Act 1953 (Cth) provides relevantly: (1) Where a corporation does or omits to do an act or thing the doing or omission of which constitutes a taxation offence, a person (by whatever name called and whether or not the person is an officer of the corporation) who is concerned in, or takes part in, the management of the corporation shall be deemed to have committed the taxation offence and is punishable accordingly. (2) In a prosecution of a person for a taxation offence by virtue of subsection (1), it is a defence if the person proves that the person: (a) did not aid, abet, counsel or procure the act or omission of the corporation concerned; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation. (3) For the purposes of subsection (1), an officer of a corporation shall be presumed, unless the contrary is proved, to be concerned in, and to take part in, the management of the corporation. (4) In this section, 'officer', in relation to a corporation, means: (a) a director or secretary of the corporation; … 832 In dismissing Mr Hookham's appeal, the majority (Deane, Dawson and Gaudron JJ) held at pp 458 - 459: The appellant's argument misconceives the function of s.8Y. That function is to reverse the onus of proof which would otherwise rest upon the prosecution of proving that a defendant who is concerned in, or takes part in, the management of a corporation is a participant in a taxation offence by reason that he or she aided, abetted, counseled, procured or was knowingly concerned in, or party to, its commission. Apart from the reversal of the onus of proof, it is to the same effect as s.5(1) of the Crimes Act which provided: Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly. That provision, extended to persons knowingly concerned in the commission of offences, merely reflects the position at common law, namely, that a person who intentionally assists in the commission of an offence or encourages its commission may be convicted as a party to it. That is to say, there may be parties to the one offence, other than the actual perpetrator, with varying degrees of participation, each of whom commits the offence. The 'deeming' provisions in both s.5(1) of the Crimes Act and s.8Y of the Taxation Administration Act do not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence to be regarded as parties to that offence ((2) See Lee v Mallan (1949) SASR 17; Mallan v Lee (1949) 80 CLR 198). Section 8Y, in providing that the person is 'punishable accordingly,' is not providing for punishment for an offence which was really committed by the corporation and is only 'deemed' to have been committed by that person; it is providing for punishment for an offence to which that person is deemed to be a party because of his or her complicity in it. The offences of which the appellant was convicted under s8Y were the same offences as those committed by the corporation and he therefore fell within the words of s21B of the Crimes Act making him liable to an order for reparation.

[1039]

850 The concept of 'management' was considered in some detail by Ormiston J in Bracht. At p830 he stated: There must be an element of decision-making, which affects the corporate enterprise as a whole, but those responsible need not form part of the board, nor even need they be executives directly communicating with the board. Nevertheless, in the ordinary course of affairs, it is only in a large company that persons outside this latter category, so far removed from the power of control exercised by the directors, may be engaged in the 'management' of a company. In a small company like the present the actions of those directly answerable to the directors may amount to 'management', for, even if those people are also engaged in routine activities of a kind not normally associated with management, it is sufficient if powers and functions are delegated to those persons which are likely in their performance to have a significant effect on the business and financial standing of a company. As it is a protective section, protective at least of the creditors and shareholders, then it must have been designed to prevent the participation in management of those who might put the solvency or the probity of the corporation's administration at risk. Persons not given any significant discretion or advisory role in decision-making could not therefore be intended as an object of the prohibition. It may be difficult to draw the line in particular cases, but in my opinion the concept of 'management' for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs. (emphasis added) And further at pp 830 - 831: Thus, although the decisions of a branch manager, subject to predetermined restrictions, may not be comprehended, there are those involved in large, discrete parts of a corporation's business, who, although not participating in the central administration of that corporation, nevertheless are involved in its management to the extent that their policies and decisions have a significant bearing on its business and its overall financial health. One has only to look at the published annual reports of public companies to realise that the results of one or more 'divisions' of a company can affect in large measure its general performance, albeit that in many cases those divisions will be in law represented by separate subsidiary or related companies.

[1061]

873 Bryson J also considered the review of the expression 'being concerned in a company's management' as undertaken by Ormiston J in Bracht and Young J in Cullen. On that issue and its relevance to s556, his Honour stated at pp12-13: I must respectfully say that I have found the reviews of case law by Ormiston J and Young J illuminating, but their Honours did not deal with s556, nor did any of the decisions which they reviewed. In my view s556 refers to a concept closely similar to that identified by the Court of Appeal in Reg v Campbell , not to managing specific aspects of the company's activities, but to central management of the affairs of the company, being matters usually undertaken by the directors. The language used in subs556(1) is rather general, and the indications which lead me to this view are these. There is obviously intended to be a close analogy between the position of a person on whom liability is fixed and a director, and the respects in which they are analogous must have some relation to the subject matter dealt with by the subsection and to the capacity of that person to influence whether or not the company incurs debts which it will not be able to pay. The overall purpose of the subsection and of the involvement of the person who took part in the management of the company point towards management at the highest level, influence over whether debts are incurred and over ability to pay and to a corresponding restriction on the very wide range of conduct to which, within the literal meaning of words, taking part in management can refer. I also see some significance in the words 'of the company' as the subject matter of management; it is not the company's business, or any aspect of the business which is referred to but the company itself. While I am conscious of the difficulties pointed out by Ormiston J and also conscious that I am not offering a comprehensive restatement of the words of the statute, I am of the view that what is indicated is taking part in the central management of the affairs of the company, which I distinguish from management of particular activities of a company's trading affairs or of its administrative affairs. A wide range of activities could be conceived of as taking part in the management of a company. The range of matters which could be considered as management is wide, and so is the range of connexions between a person and a process which could be considered as taking part in it. So too is the range of matters which in fact are commonly attended to by directors, and by persons employed as managers. In my opinion it is necessary to approach the application of these provisions to facts with the nature and apparent purpose of the provision in mind, and to keep in view that s556 is concerned with imposing liability for debts incurred by the company, imposes personal liability on persons who take part in management, and also creates an offence, which may be punished by imprisonment. The management referred to is in my opinion a core of activities and responsibilities in the higher direction and control of the affairs of the company, of kinds which can be or usually are attended to by directors.

[1156]

956 In his judgment, Dixon J addressed what was referred to as the third question raised by the defendant's counsel in relation to the appeal. Ultimately, it was not a question that the Court, by majority, determined. But it is in relation to this third question that counsel for the defendants before me rely upon in support of the contention they have put concerning the condition precedent placed on the prosecution to the deeming provisions of s50 of the OHSA in relation to the personal defendants. At p427, Dixon J stated: The third question raised by the defendant's counsel is whether s18(2) operates to place the burden of proving reasonable cause upon the defendant when he is not the employer and is prosecuted as an accessory under s5 of the Crimes Act . In terms s18(2) applies only to a proceeding for a contravention of sub-s(1). But s5 of the Crimes Act provides that the person who aids, abets, counsels, or procures or is knowingly concerned in or party to the commission of a Federal offence shall be deemed to have committed that offence and shall be punishable accordingly. It is a question of construction whether a consequence of deeming the person bringing himself within s5 to have committed the principal offence is that upon the hearing of a charge against him he should be subject to the same burdens of proof as apply to the principal offender upon a prosecution for the principal offence. It is to be noticed that the language of s5 is not the same as that of the English Accessories and Abettors Act 1861, s1. It appears to me that, until all the elements described by s5 are established, the person charged is not brought within its scope, and, therefore, is not, until the proof is complete, deemed to have committed the principal offence. But to complete the proof it is necessary to show that there was no reasonable cause and perhaps that the defendant knew there was none. On the whole, I do not think that sub-s(2) of s18 can be invoked upon a prosecution under s5 of the Crimes Act .

[1158]

959 Counsel for the defendants also relied upon the decision of R v Buckett in support of his contentions on this point. In that matter, Mr Buckett was convicted initially on three counts of being knowingly concerned in the commission by Mr Saxon of the offence of disposing of approximately four million dollars that may reasonably have been suspected of being the proceeds of crime. On appeal Mr Buckett argued a number of points including the validity of the charges as to the interpretation of the statutory provisions upon which the prosecution relied. The offences at first instance had arisen under s82 of the Proceeds of Crime Act 1987 (Cth) in accordance with s5 of the Crimes Act 1914 (Cth). On the inter-relationship as between the principal act upon which the offence arises and s5 of the Crimes Act, Hunt CJ said at p308: Where the Crown relies upon s5 of the Crimes Act to make an accessory responsible for the commission by the principal offender of the offence against a law of the Commonwealth (the principal offence) it must establish by evidence admissible against that accessory that the principal offence was in fact committed by the principal offender. Proof of that fact is fundamental: see Lun and Welsh (1932) 32 SR (NSW) 363 at 364; Walsh v Sainsbury (1925) 36 CLR 464 at 477; Goldie; Ex parte Picklum (1937) 59 CLR 254 at 263, 268; Mallan v Lee (at 205); Giorgianni (at 491, 500; 176, 183); Stokes and Difford (1990) 51 A Crim R 25 at 37. If the principal offender is provided with a defence, and if he would have succeeded in establishing that defence had he been charged, the offence has not been committed . The fact that such offender would have carried the onus of proof in relation to that defence cannot alter that fact. In prosecuting the accessory, the Crown must therefore establish not only the essential ingredients of the offence committed by the principal offender but also that any defence so provided to him would not have been successful. This was indeed the proposition for which the Crown ultimately contended in this appeal: Transcript, 24-25. Reliance was also placed upon Hookham (1994) 181 CLR 450 at 459, 463; 75 A Crim R 588 at 592, 595. (emphasis added) In those cases where the defence so provided to the principal offender requires him to prove a positive fact, the Crown would have to establish that such a defence would not have been successful only where there is some suggestion in the evidence of the existence of that fact. However, where the defence so provided requires the principal offender to prove a negative fact, it would seem that the Crown would have to establish in every case that such a defence would not have been successful. That, of course, is the nature of the defence provided to the principal offender by s82 of the Proceeds of Crime Act , that he had no reasonable grounds for the stated suspicion. Such an obligation upon the Crown in relation to s82 could hardly be regarded as onerous. All that would need to be established is, in effect, that the principal offender did have a reasonable ground for suspecting that the property was derived or realised, directly or indirectly, from some form (any form) of unlawful activity.

[1162]

963 Having regard to the provisions of s50(1)(b) and (c) it is for Mr Romcke, Mr Porteous and Mr Robinson to discharge the onus that those sub-sections require. In relation to Mr Porteous and Mr Romcke, there is no evidence before me on which I could be satisfied that they have established, to the requisite standard relevant to their respective roles as General Mine Manager and Statutory Mine Manager at Gretley during the periods covered by the charges, they were not in a position to influence the conduct of the corporations in relation to the contraventions of the corporate defendants under ss15(1) and 16(1) of the Act nor, in the alternative, being in such a position, they used all due diligence to prevent a contravention of the Act by the corporations. More particularly, Mr Romcke and Mr Porteous were directly involved in co-signing relevant copies of the approved plan of the Gretley Colliery with the then Mine Surveyor Mr Murray that supported the applications made to the DMR in 1994 and 1995. Those approved plans depicted the presumed old workings of the Young Wallsend Colliery in the Young Wallsend Seam as depicted in RT 523 Sheet 3. That depiction was wrong. In that respect it could be said that Mr Romcke and Mr Porteous both failed to discharge their statutory responsibilities under s37 of the CMRA and Part 3 of the Coal Mines Regulation (Methods and Systems of Working - Underground Mines) Regulation 1984. As well, I am satisfied that the advice and decision making authority of Mr Romcke and Mr Porteous would have been a decisive factor in decisions taken at the corporate level as to proposed mining activities at Gretley. The only proviso I add to that is that in relation to the planning, research and assessment charges and those particularised failures (c) and (d), Mr Porteous could not have been in the position to influence the conduct of the corporations in relation to those particularised failures as he was not, during that period, the Mine Manager at Gretley. Those particularised failures go directly to the actions of Mr Romcke as Mine Manager at Gretley during the relevant period of the charge.

[1178]

979 For the reasons I have given, I am satisfied beyond reasonable doubt that the following personal defendants were persons concerned in the management of the respective corporations and, pursuant to the provisions of s50(1) of the Act, they are deemed to have committed the same offences as the corporations, having failed to satisfy the onus placed upon them as provided in s50(1)(a) and (b) of the Act. (i) Richard Myles Porteous with respect to IRC Matter No's 3210/00, 3211/00, 3213/00, 3214/00, 3216/00, 3217/00, 3219/00 and 3220/00: I find the offences proved with respect to the further particulars and failures as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. With respect to IRC Matter No's 3212/00, 3215/00, 3218/00 and 3221/00, I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find failures (a), (b), (e), (g), (h) and (i) established as against Mr Porteous. That finding accords with Mr Porteous' period of employment as General and Statutory Mine Manager at Gretley. (ii) Jonathan Erik Humphries Romcke with respect to IRC Matter No's 3234/00, 3235/00, 3236/00 and 3237/00: I find the offences proved with respect to the further particulars as determined in the corresponding corporate defendant charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded I find failures (a), (b), (c), (d), (g), (h) and (i) established as against Mr Romcke. That finding accords with Mr Romcke's period of employment as General and Statutory Mine Manager at Gretley. (iii) Mark Robinson with respect to IRC Matter No's 3230/00, 3231/00, 3232/00 and 3233/00. I find the offences proved with respect to the further particulars as determined in the corresponding corporate charges arising under ss15(1) and 16(1) of the Act. In relation to the failures as pleaded, I find the failures (a), (b), (f), (g), (h) and (i) established as against Mr Robinson. That finding accords with Mr Robinson's period of employment as Mine Surveyor at Gretley.

Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others

At a glance

Court

Decision date

Before

Source

Judgment (1181 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (53)

Cited By (10)