Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady - [2003] NSWIRComm 292 - NSWIRComm 2002 case summary — Zoe

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Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady

[2003] NSWIRComm 292

Industrial Relations Commission (NSW)|2002-07-31|Before: Staunton J, Mr J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2002-07-31

Before

Staunton J, Mr J, Mr P

Source

Original judgment source is linked above.

Judgment (115 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 292 revised - 5/11/2003 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: IRC No's 3198 - 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - admissibility of expert witness statements - voir dire - Rules 187 and 188 of Industrial Relations Commission Rules considered relevantly and procedurally deficient as to principles governing receipt by Court of expert witness reports - Rule 89(5) of Industrial Relations Commission Rules applied - Part 39r13C and Schedule K of Supreme Court Rules considered applicable - specialised knowledge considerations - impartiality of an expert witness - probative value of evidence - expert opinion evidence excluded under s137 of the Evidence Act. Occupational Health and Safety Act 1983 LEGISLATION CITED : Evidence Act 1995 Coal Mines Regulation Act 1982

[17]

5 In relation to Mr Anderson's statements the defendants have raised objections to their admissibility based on: (i) The field of 'specialised knowledge' that underpins Mr Anderson's statements. In short, the defendants say Mr Anderson has no relevant specialised knowledge to support the opinions he purports to express. (ii) The statements of Mr Anderson's do not comply with the form as required by Schedule K of Pt 36r13C of the Supreme Court Rules (SC Rules) and relevant judicial authorities: see HG v The Queen (1999) 197 CLR 414 at 427 where Gleeson CJ states at para [39]: An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. and ... the provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question . (emphasis added) As well, the summary by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85] sets out the proper principles to be observed in the admissibility of expert opinion reports. Mr Anderson's statements do not conform with those principles. (iii) On any view, Mr Anderson's evidence offends the principle of impartiality as a critical factor in expert witness evidence. In many respects Mr Anderson's evidence has the tenor of being an advocate for the Department of Mineral Resources, a party whose role in matters is relevant to the substantive proceedings before me. Accordingly, his evidence as an expert should be excluded on discretionary grounds under s135 or s137 of the Evidence Act . (iv) Further, the specialised knowledge that he relies upon to express his opinions has been obtained, in part, in circumstances that, overall, preclude it from being relied upon and it should be excluded in accordance with s137 of the Evidence Act .

[57]

36 Further, in Makita, Heydon JA (as he then was) summarised the principles applicable in relation to expert witness opinion evidence at para [85] as follows: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; 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 or 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. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.'

[61]

40 One of the critical evidentiary matters to be determined by me is the process followed and research undertaken by the defendants in relation to the old abandoned Young Wallsend workings and relevant record tracings of those old workings. As I now understand it, that mine had been originally mined and mapped in the 19th century, and ultimately abandoned in or about 1928. Details including original maps (or record tracings) of prior abandoned mine workings are either held by the DMR or stored with State Archives. In his opinion evidence on this critical issue Mr Anderson states: Records Tracings 73. The Mine Manager must supply record tracings every 6 months to the Chief Inspector of Coal Mines pursuant to Clause 14(3) Coal Mines Regulation (Survey and Plan) Regulations 1984. The record tracing shows at a particular point in time the extent of the workings of the mine accurately surveyed and signed off by the surveyor of the mine. 74. Exhibit 13.21 is a copy of part of the original record tracing RT523 for the Young Wallsend Seam Coal Workings. 75. Exhibit 13.22 are copies of plans issued by the Department and given the number RT523 sheets 2 and 3 interpreting the layout of the Young Wallsend coal workings. 76. Exhibit 13.04 is a larger copy of sheet 2. 77. Apart from examination of the record tracing and merely because you are dealing with old workings a company should recognise that the plans of old workings may be inaccurate. Exhibit 21.05 provides selected quotations from various texts on the reliability of old plans of old workings. 78. There are a number of aspects of old plans which raise issues of reliability. The underground workings may have inaccuracies if the survey co-ordinates are inaccurately transferred underground. This may result in a plan showing the mine going in one particular direction when in reality the workings are displaced by a small angle and over time large displacements may occur. 79. Another possibility is that the surveyor may have made an error in calculations so that in fact he has not accurately located the underground workings. 80. It is also possible that there are unrecorded workings, that is, the surveyor is unaware of workings that may have taken place, so his plan does not reflect their existence.

[62]

Questions Arising From Record Tracing Exhibit 13.21 81. I believe that the Mine Manager and/or surveyor should examine the original record tracing as required by Clause 8 Methods and Systems Regulation. 82. Clause 8(2) provides that the mine manager 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 the presence in the vicinity of any workings carried on, or proposed to be carried on in the mine of any disused workings. In fulfilling the duties imposed by this clause the mine manager is to 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. 83. The original record tracing may give some indication as to its reliability or otherwise. Exhibit 21.05 sets out extracts from texts relating to viewing the original record tracing. 84. Whoever viewed the original record tracing RT523 would notice certain warnings, in particular the fact that the workings didn't seem to correlate with respect to certain roadways and there were handwritten notes on the plans by the Chief Inspector of Coal Mines in 1963 alluding to extra workings. 85. At the foot of the record tracing on the left hand side appears the date '21 March 1892.' There are various other dates on the RT. 86. There are annotations in pencil. These suggest to me that the Chief Inspector of Coal Mines believed that the first workings probably existed or were probably carried out in areas that he has pencilled or refers to in pencil on the plan and those areas are linked by a rough pencil line and arrows. 87. These are very general comments and they refer to the probability that workings may exist without accurately defining them. Therefore you would have to ask yourself did they exist and if they did what was the extent of them. 88. Various headings at the perimeter are open. This may be significant in assessing the accuracy of the plan. It would depend on what significance the surveyor at the time put upon the open and shut headings. Current mining practice would suggest that an open roadway is one that has not yet been accurately or finally surveyed and there may be some error in it. A closed roadway would indicate that there is certainty as to its location. 89. The area depicted in black, unlike the area depicted in red, does not have dates around the periphery. It is hard to say what this infers. As it does not have a date on it you don't know when it was surveyed. 90. I am unable to infer anything about which seam is depicted. 91. The old workings had two shafts that came to the surface and which can be located. This means that they show on a particular plan at a point where the surveyor may have been able to locate them. He can then resurvey from known bench marks or known points to those shafts and compare the actual location versus the location that is inferred from the plan and see whether the two positions correspond or not. 93. A staple shaft is a shaft connecting two seams, which is usually vertical, passing from one roadway to another working in another seam. 94. If one superimposed upon the same plan workings of the 'top' seam and the 'bottom' seam then the roadways which are said to be connected to the staple shaft do not align correctly. This discrepancy may be explained by the staple shaft being inclined, though this would be unusual and would require checking. 95. In relation to the outline of the workings displayed upon a plan it is possible for their representation to be inaccurate even though the workings have been accurately measured. This occurs when the representation of the workings on the plan are incorrectly aligned from their actual orientation. 96. I would have expected the end of the access roadways to the staple shaft in each seam to overlap and so be coincidental. As they do not that would suggest that one or both of the plans may be in error to some extent. 41 Putting aside for the moment Mr Anderson's reference to a mine manager's statutory obligation, the above paragraphs are, in my view, predominantly speculative in nature about an area of quite specific specialised knowledge that is, mine surveying, that Mr Anderson would be hard pressed to substantiate except on a most general basis. Secondly, Mr Anderson speculates on the beliefs of others and probabilities that 'may' exist. Even if such evidence were strictly admissible, which I say it is not, its evidentiary weight may be minimal at best.

[64]

43 The considerations of the Full Court of the Federal Court in Sydneywide Distributors were further considered and applied by R D Nicholson J in Australian Consumer Commission v Emerald Ocean Distributors Pty Ltd (Unreported, FCA 31 July 2002) where his Honour said: The contents of s79 and the dicta of Heydon [JA] and that of Gleeson CJ...were recently considered by the Full Court of this court in Sydneywide Distributors ... In their joint judgment Weinberg and Dowsett JJ, after referring to the dicta of Heydon JA, stated that it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, the evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence...The difficulties of applying the dicta of Heydon JA in the course of a trial was also adverted to by Branson J who described the dicta of Heydon JA as constituting a counsel of perfection. She said that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined by him. This is particularly because the admissibility of evidence is ordinarily required to be made by the trial judge during the course of the trial rather than at its conclusion. Branson J referred to the fact that s79 has changed the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion...She also emphasised that the general discretion to refuse to admit evidence is sufficient to deal with problems that might arise in respect of an expert opinion, the basis of which is not disclosed - see s135 of the Evidence Act 1995 (Cth) .

[108]

75 The statutory protection provided by s60(2) of the Coal Mines Regulation Act does not just apply to statements. It applies to 'any answer given by a person.' Mr Anderson says that the opinions he expresses are based in part on the knowledge he obtained in his role in the judicial inquiry. On matters of detail relating specifically to the accident, and with the exception of those matters in which he was directly involved as an officer of the DMR, all of the opinions he purports to express would have to come from knowledge obtained from the judicial inquiry. The difficulty that that background poses, it seems to me, is that it is not sensibly possible for Mr Anderson to assert that some of that distilled knowledge that he now relies upon to express his opinions did not derive in part from information obtained by him in his questioning of the defendants or the answers they gave in cross examination let alone what may be in their statements. In my view, there is a fine but important distinction to be drawn between the defendant's statements as opposed to any answers given by them pursuant to the powers of compulsion under s60(1) of the Coal Mines Regulation Act. In my view, the perception is very strong that, in expressing the opinions that he has and relying as he does upon a body of knowledge gained from the judicial inquiry and his involvement in that inquiry, impinging in the way that it has upon the defendants before me, Mr Anderson has drawn upon information obtained from answers given by the defendants before me. In other words, it is simply not possible, in my view, for Mr Anderson to compartmentally excise from a distilled body of knowledge, precise answers to diverse questions in cross examination or otherwise that, when taken together with all the other information gathered, forms the knowledge that he now relies upon to express the opinions that he does. For those reasons, in addition to s79, Mr Anderson's evidence must pass the tests of s135 and s137 of the Evidence Act.

[111]

78 The approach to be taken in relation to the application of 'probative value' is commented upon by Odgers S, Uniform Evidence Law, 5th Edition, p448 particularly as follows: Given the definition of 'relevant evidence' (s55(1)), 'probative value' in substance means degree of relevance, although it is suggested that it should be understood in this context in the sense of 'incremental' relevance. However, there is a potentially significant difference between the definition of 'relevance' and the definition of 'probative value.' The former refers to evidence that 'if it were accepted' could rationally affect the probability of the existence of a fact in issue. The definition of 'probative value' does not import this qualification. This would suggest that, in assessing probative value, the court is not required to assume that the evidence will be 'accepted.' Thus, the court would not proceed on the assumption that the evidence is credible and reliable. A court could make an assessment of both truthfulness and general reliability before proceeding to exercise this discretion. Such an approach would not appear to accord with the common law approach: see Rozenes v Beljajev (1995) 1 VR 533; R v Robinson (1995) 80 A Crim R 358 (Qld CCA); R v Lowe (1997) 2 VR 465. Further, the use of the word 'could,' rather than 'does,' in the definition of 'probative value,' provides some support for a more restrictive approach. Certainly, decisions in respect of this provision have tended to support the more restrictive interpretation, as best articulated by Hunt CJ at CL in R v Carusi (1997) 92 A Crim R 52 at 66: [T]he power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect.