Bell v Hendry
[2014] ICQ 18
•2 July 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Bell v Hendry & Ors [2014] ICQ 018
PARTIES:
STEWART LYNN BELL
(appellant)
v
KEVIN JAMES HENDRY
(respondent)CASE NO:
C/2013/11
PARTIES:
STEWART LYNN BELL
(appellant)
v
MANSELL MINING AND SHOTCRETE PTY LTD
(respondent)CASE NO:
C/2013/12
PARTIES:
STEWART LYNN BELL
(appellant)
v
MOUNT ISA MINES LIMITED
(respondent)CASE NO:
C/2013/13
PARTIES:
STEWART LYNN BELL
(appellant)
v
MANSELL MINING AND SHOTCRETE PTY LTD (respondent)CASE NO:
C/2013/14
PROCEEDING:
Appeals
DELIVERED ON:
2 July 2014
HEARING DATE:
24 February 2014
MEMBER:
Martin J, President
ORDER/S:
In matter C/2013/11 the appeal is dismissed.
In matter C/2013/12 the appeal is dismissed.
In matter C/2013/13 the appeal is dismissed.
In matter C/2013/14:
the appeal is allowed;1.
the decision of the Industrial Magistrate, so far as it relates to the quantification of costs is set aside; and2.
that matter is remitted to the Industrial Magistrate to proceed according to law.3.
CATCHWORDS:
MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – DUPLICITY, AMBIGUITY AND UNCERTAINTY – GENERALLY – where a worker suffered serious injuries at a mine – where the appellant laid complaints again the worker’s employer, the mine operator, and the Site Senior Executive of the mine purporting to allege breaches of safety and health obligations – where the complaints, particulars, and further particulars were prolix, incoherent and otherwise confused – whether the complaints disclosed offences known to the law – whether the complaints were so flawed as to be void and not susceptible to amendment
PROCEDURE – COSTS – APPEAL AS TO COSTS – WRONG EXERCISE OF DISCRETION – where the Industrial Magistrate awarded the employer its costs of defending the complaint – where these costs were set at $60,000 – whether the Magistrate’s reasons fully disclose the basis for this calculation of quantum
Acts Interpretation Act 1954, ss 4, 32C
Justices Act 1886, ss 42, 43, 47, 48, 158, 158A, 158B
Mining and Quarrying Safety and Health Act 1999, ss 31, 35, 36, 39, 234
Statutory Instruments Act 1992, s 20CASES:
Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53, applied
DPP v Kypri (2011) 33 VR 157; (2011) 207 A Crim R 566; [2011] VSCA 257, referred to
GPI (General) Pty Ltd v Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157, referred to
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied
NK Collins Industries Pty Ltd v The President of the Industrial Court [2013] QCA 179, appliedAPPEARANCES:
D Kent QC and M Nicholson on behalf of the appellant, instructed by G R Cooper Crown Solicitor
J Murdoch QC for the respondent Hendry, instructed by Sparke Helmore
A Glynn QC for the respondent Mansell Mining and Shotcrete Pty Ltd, instructed by Simpson Quinn Lawyers
M Burns QC and A Scott for the respondent Mount Isa Mines Limited, instructed by Minter Ellison
Introduction
On 27 July 2009 Matthew Bertoni was driving an agitator truck at the George Fisher Mine near Mount Isa. It is alleged that he lost control of the truck, crashed and, as a result, suffered serious injuries.
Mr Bertoni was employed by Mansell Mining and Shotcrete Pty Ltd (Mansell) which was an off-site contractor. The mine is operated by Mount Isa Mines Limited (MIM). Kevin Hendry was the Site Senior Executive for the mine.
There are four appeals before the Court. The first three concern the validity of complaints laid by the appellant against each of Mr Hendry, Mansell and MIM. Under those complaints each respondent has been charged with failing to discharge obligations imposed on each of them by the Mining and Quarrying Safety and Health Act 1999 (the Act). The fourth appeal brought against Mansell concerns an order for costs made in its favour by the Industrial Magistrate. I will deal with that after consideration of the substantive appeals.
The Mining and Quarrying Safety and Health Act 1999
Part 3 of the Act contains a number of what are described as “safety and health obligations”. Certain categories of person are nominated as having those obligations under Div 3 of that Part. They include an operator of a mine (in this case MIM), a Site Senior Executive (in this case Mr Hendry), and a contractor (in this case Mansell).
Section 31 provides:
“A person on whom a safety and health obligation is imposed must discharge the obligation.”
The section goes on to set out the maximum penalties which may be imposed where a contravention of the Act is shown. For example, if a contravention causes death or grievous bodily harm then the maximum penalty is 1,000 penalty units or two years imprisonment.
Division 2 of Part 3 sets out the obligations held generally while Division 3 sets out the obligations of operators, site senior executives, and contractors. The relevant sections appear in the annexure to these reasons.
The complaints
One day before the end of the limitation period the appellant made a complaint against each of the respondents in respect of the events on 27 July 2009. Pursuant to those complaints each respondent was charged with failing to discharge obligations placed upon them by various sections of the Act contrary to s 31 of the Act.
The complaint against Mr Hendry alleges:
“… that on the 27th day of July, 2009 at the George Fisher Mine near Mount Isa in the Mount Isa Magistrates Courts District in the State of Queensland KEVIN JAMES HENDRY, the Site Senior Executive for a mine and a person on whom safety and health obligations were imposed by ss 36 and 39 of the Mining and Quarrying Safety and Health Act 1999, did fail to discharge the obligations, contrary to section 31 of the Mining and Quarrying Safety and Health Act 1999.
And the said failure by KEVIN JAMES HENDRY to discharge the obligation caused grievous bodily harm to MATTHEW MICHAEL BERTONI.”
The complaint against Mansell was in similar terms save that it referred to the obligations imposed by sections 36 and 40 of the Act. The same applies to the complaint against MIM – it referred to the obligations imposed by sections 36 and 38.
Particulars were attached to each complaint. They consisted of seven or eight paragraphs, each of which contained a number of sub-paragraphs, and then a further two paragraphs in which, with respect to the complaint against Mr Hendry, it is alleged that:
“In the above premises, Hendry failed to discharge the obligations imposed by ss 36 and 39 of the Act by …”
That was then followed by 13 assertions of failure said to amount to contraventions.
Each respondent sought further particulars of the complaints. Those particulars were supplied in May 2012.
For the purposes of this appeal, the differences in the complaints are of little importance. They all appear to assert essentially the same things as constituting breaches of various provisions of the Act. For the purposes of this proceeding I will concentrate on the complaint against Mr Hendry. If it is flawed, then they are all flawed.
The proceedings in the Industrial Magistrates Court
Each respondent applied for the complaint to be dismissed.
After a detailed examination of the complaints and the particulars, Callaghan IM concluded that:
(a) “… each complaint is so deficient as to its legal and factual ingredients that it does not disclose an offence known to the law.”,
(b) “… the complaint against each of the defendants is duplicitous.”, and
(c) “[with respect to each complaint] to allow an amendment would not be either necessary in the interests of justice nor would it be desirable in the interests of justice.”
The conclusions concerning duplicity and amendment arise out of provisions of the Justices Act 1886. Section 43 of the Justices Act concerns the requirement that, save for specified circumstances, a complaint is to be for one matter only. It needs to be read with s 234 of the Act. Section 48 of the Justices Act allows for the amendment of a complaint. These sections appear in the annexure to these reasons.
The appeals
Each substantive appeal relies upon the same grounds, namely, that the Industrial Magistrate:
(a) should not have held that the complaints did not disclose an offence under the Act,
(b) should not have held that s 234 of the Act did not permit more than one contravention of more than one obligation to be charged as a single charge,
(c) should not have held that the complaints failed to comply with s 43(2) of the Justices Act, and
(d) erred in not exercising his discretion to amend the purported defects in the complaints.
Mr Hendry also argues that the appellant does not have the necessary standing to bring the appeal in his case. It is argued that Mr Bell was not validly appointed as the “Commissioner for Mine Safety and Health”. The other respondents do not join in this submission.
The nature of the complaints
I set out below, in a summary form, the contents of the complaints.
Each of the complaints commences with a series of allegations concerning the background to the alleged contraventions. Each of them:
(a) Describes the legal status of the respondent.
(b) Describes Unit 40 – the agitator truck – and its use within the mine.
Each complaint goes on to allege that:
(a) No “evaluation, risk assessment or analysis was undertaken” as to the suitability of Unit 40.
(b) The manufacturer of Unit 40 specified a gross vehicle mass of 4495 kg.
(c) Each respondent knew or ought to have known that specification.
(d) Unit 40 was routinely overloaded by amounts up to 2475kg or 55% about the specified GVM
(e) The overloading was not detected or the subject of any control or instruction.
(f) Overloading resulted in the vehicle braking system itself being overloaded, causing a real risk of metal to metal contact and delamination of the brake shoe lining.
(g) The routine maintenance performed on Unit 40 was not undertaken by reference to any manufacturer requirements or specifications.
(h) The maintenance personnel did not have access to any workshop manual for Unit 40, and there was no documented training or assessment program for the use of Unit 40.
(i) Unit 40 had no backup braking system.
It was further alleged that:
(a) On 24 June 2009 MIM purported to undertake a brake inspection test on all Mansell vehicles.
(b) No defect was identified in respect of the brakes on Unit 40.
(c) On 19 July 2009 Mansell purported to undertake some repairs to the brakes of Unit 40.
(d) On that occasion no defect was detected in respect of the brakes.
(e) At all material times between 24 June and 27 July 2009 the brakes were subject to the defects referred to with a risk of catastrophic failure.
(f) Such failure posed the risk of injury to an operator.
(g) The risk of brake failure was a “risk” within the meaning of the Act and the Regulation[1].
[1]This is a reference to the Mining and Quarrying Safety and Health Regulation 2001.
(h) The prospect of brake failure was a “hazard” within the meaning of the Regulation.
(i) The decline at the George Fisher Mine was a “hazardous area” within the meaning of the Regulation.
It was further alleged that on 27 July 2009 at about 5am:
(a) Unit 40 was suffering a brake defect caused by overloading;
(b) After being loaded with shotcrete Unit 40 was overloaded to the extent of approximately 55%;
(c) Unit 40 was being driven by Mr Bertoni down the decline;
(d) Mr Bertoni lost control of Unit 40 and such loss of control was due to catastrophic brake failure resulting from the brake defect; and
(e) Mr Bertoni suffered grievous bodily harm.
The “breaches” were then set out as follows:
“9.In the above premises, Hendry failed to discharge the obligations imposed by ss 36 and 39 of the Act by:-
a) failing to ensure the risk to persons in the mine from operations were [sic] at an acceptable level;
b) failing, in contravention of ss 6, 7, 8 and 9 of the Regulation, to undertake a risk assessment or monitor risk as to the suitability of Unit 40 at the mine in underground conditions, in particular having regard to the steep gradients of roads at the mine, the abrasive effects of moisture and dust on the mechanical components of Unit 40, and or [sic] alternatively the heavy loads of concrete transported by Unit 40;
c) failing, in contravention of s 100(1)(a) of the Regulation, to manage the said risk at the mine, in respect of the selection of plant, to ensure that Unit 40 was fit for its intended use, namely as an agitator truck, used in its intended work environment, namely an underground mine with descending declines;
d) failing, in contravention of s 100(1)(b) of the Regulation, when it was necessary for managing risk from Unit 40 and it was reasonably practicable to do so, to ensure that the plant did not fail catastrophically and incorporated a backup system (by way of emergency braking system) to ensure the vehicle remained under control and was designed so that its condition and performance could be monitored and incipient failures detected;
e) failing, in contravention of s 105(1) of the Regulation, in respect of the commissioning of Unit 40 in its operating environment before it is used, to ensure it performed within its specifications and hazard controls for the plant were adequate and operating within such specifications, and mine workers who were required to operate the plant were competent to operate it safely;
f) failing, in contravention of s 106 of the Regulation, in respect of the management of risk of Unit 40 as plant, to ensure it was not operating in a way that created an unacceptable level of risk;
g) failing, in contravention of s 108 of the Regulation, to monitor the use, condition and performance of unit 40 so as to detect any deterioration causing an unacceptable level of risk, decide [sic] if the plant was likely to operate without causing an unacceptable level of risk until it as [sic] next monitored, and to provide information for preventative maintenance;
h) failing, in contravention of s 109, to ensure that Unit 40 was serviced and maintained so as to be capable of performing its intended function, was within the condition and performance limits of its specifications and it was taken out of service in the event that it could not be so serviced and maintained;
i) failing to ensure that procedures were developed and enforced for the safe operation of Unit 40, namely conducting comprehensive and accurate mechanical inspection of all of the equipment operated by Mansell at the mine;
j) failing to ensure that procedures were developed and enforced for the safe operation of Unit 40, namely the loading and transportation of concrete in excess of the manufacturer's gross vehicle mass specifications;
k) failing to ensure that procedures were developed and enforced for the safe operation of Unit 40, namely that Mr Bertoni had received documented training and assessment in the use of Unit 40;
l) failing to ensure that procedures were developed and enforced for the safe operation of Unit 40, namely the failure to ensure identification and repair of the mechanical components of the braking system of Unit 40 by:
(i)failing to ensure that the braking system of Unit 40 was properly and safely operating on 27 July, 2009 at the mine;
(ii)failing to ensure persons conducting maintenance at the mine had service manuals specific to operation and service of Unit 40;
(iii)failing to ensure that persons at the mine properly and correctly filled out and conducted the service, preventative maintenance schedule and inspection records of Unit 40;
(iv)failing to ensure that persons at the mine properly and correctly filled out daily service and pre-start check records of Unit 40; and
(v)failing to ensure the pre-start checklist of Unit 40 was properly assessed for safety risks.
m) in the premises:
(i)failing to ensure the health and safety of persons at the mine, including Mr Bertoni, were not affected by the way operations were conducted;
(ii)failing to manage risk and take a reasonable and necessary course of action to ensure persons in the mine are not exposed to unreasonable risk.”
Particulars of the complaint were sought and were supplied in May 2012. They were as follows:
“Bell v Hendry
I refer to the above complaint and request for particulars in respect thereof. Those particulars are furnished below.Below:
· where reference is made in a paragraph in the complaint, the abbreviation used will be ‘CP’ (eg, paragraph 2(b) of the particulars of the complaint would be referred to as ‘CP2(b)’).
· any abbreviation otherwise used, unless otherwise identified, is referable to an abbreviation used in the complaint (eg, ‘the Act’ in CP1(b); ‘Unit 40’ in CP 3(d)).
· where in any separate numbered paragraph of these particulars, reference is made to a previous paragraph of these particulars, the same will be shortened to a ‘P’ reference (eg, a reference in the particulars heading 2 below to ‘PI(c)’ is a reference to subparagraph (c) in paragraph 1).
The complainant relies upon the matters referred to in the complaint including the material facts in CP1 – CP8 and the contraventions alleged in CP9.
The particulars provided are:
1.Identification of alleged breach of obligation under ss 36 and 39 of the Act, as pleaded in CP9, identifying the particular obligation allegedly breached in each instance.
(a)Section 36(1)(a) of the Act – failing to comply with the Act, namely s 34(1) which provides that if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person's safety and health obligation in relation to the risk only by following the prescribed way. As to the relevant risk here (see P1(b) below) such risk was unacceptable (see P2 below) and the respondent Mr Hendry failed to comply with the Regulation as particularised in CP9(b)-(h) and P3 below.
(b)Section 36(1)(c) of the Act – failing to take reasonable and necessary courses of action to ensure that persons (namely Mr Bertoni, any other person who may have been driving unit 40, or any other person who may have been physically impacted by unit 40 were it to run out of control within the mine due to brake failure - below referred to as 'the affected persons') were not exposed to an unacceptable level of risk (namely, as pleaded in CP5(b) and 5(f), and CP6(d)-CP6(k), a risk of brake failure, with a consequent loss of useful braking in the vehicle so as to properly operate the same, with potential consequence or injury or death - below referred to as 'the relevant risk').
(c)Section 36(2)(a) of the Act – failing to manage the risk of injury (namely the relevant risk) to the persons in the mine (namely the affected persons), so that the relevant risk was at an acceptable level.
(d)Section 39(1)(a) of the Act- failing to ensure the risk to persons from operations in the mine (namely the relevant risk in respect of the affected persons) was at an acceptable level.
(e)Section 39(1)(b) of the Act- failing to ensure the risk to persons from any plant (namely the relevant risk to the affected persons from unit 40) provided by the respondent as senior site executive for the performance of work in the mine by someone other than the site senior executive's worker (namely Mr Bertoni and other non-employees of MIM working in the mine) was at an acceptable level.
(f)Section 39(1)(d) of the Act -failing to develop, implement or maintain a management structure for the mine that helps ensure the safety and health of persons at the mine, namely, as pleaded in CP6, by incorporating, within the management structure, any or any effective means of ascertaining or identifying whether mobile plant (relevantly unit 40) introduced into the mine by a contractor (here by Mansell) was suitable for use in the mine, and after introduction being used within that plant's specifications (here that not done by reason of the routine overloading pleaded in CP6(f)-(h)). Further, reliance is placed on the matters pleaded in P4 below.
(g)Section 39(1)(e) of the Act – failing to train workers (namely Mr Bertoni, other persons involved in operating unit 40, and those involved in loading unit 40) so they are competent to perform their duties (namely, in the case of' Mr Bertoni, other operators of unit 40, and those persons engaged in loading unit 40, training and laying down a pre-start check which communicated the manufacturer's specifications in respect of unit 40 pleaded in CP6(d), and requiring the same to be adhered to so as to avoid overloading).
(h)Section 39(1)(f)(i) of the Act – failing to provide for adequate planning and control of operations in the mine, in the respects pleaded above in P1(f) and Pl(g) above.
(i)Section 39(1)(f)(iii) of the Act – failing to engage in adequate control of operations on each shift of the mine, in the respects pleaded above in Pl(f) and P1(g).
(j)The breaches under s 36 above were by Mr Hendry as a person at the mine and who may affect health and safety of persons at the. mine. The breaches under s 39 above were by Mr Hendry as site senior executive of the mine.
2.Identify the risk for any alleged breaches of obligation in relation to risk in PI.
(a)This P2 is referable to each of the alleged contraventions in P1(a)-(i).
(b)The risk in question was the relevant risk.
(c)The persons impacted by the relevant risk were the affected persons.
(d)The risk was unacceptable (Act s 26) because of:
(i)the matters pleaded in CP5, CP6 and CP7;
(ii)the matters pleaded in CP9(b)-(h);
(iii)the matters pleaded in CP9(a) and CP9(i) to (l), not just as measures to be ensured, but also in the alternative as measures per se which were reasonably capable of being implemented so as to obviate or minimise the relevant risk, and so as to bring the level of risk from mine operations to be within acceptable limits and as low as reasonably achievable having regard to the likelihood of injury to persons arising out of the relevant risk and the severity of the injury which might occur;
(iv)a failure to identify the unit 40 specifications (namely those in CP6(d)),and impart them by way of training and instruction to Mr Bertoni, other persons in the mine who drove unit 40, and the persons in the mine engaged from time to time in loading unit 40, with a further instruction to strictly adhere to the same in loading unit 40, so that unit 40 was not overloaded, and in turn its brakes were not thereby overloaded on application, particularly on declines;
(v)the maintenance service interval in respect of unit 40 was excessive, the last dedicated service undertaken, prior to the incident which occurred on 27 July 2009, having ensued on no later than 24 June 2009; and
(vi)the matters referred to in P4 below.
3.The applicable regulation, guideline or alternatively measures constituting reasonable precaution or proper diligence in respect of the subject matter of breach.
(a)In respect of the relevant risk, constituting an unacceptable level of risk as particularised in P2, reliance is placed on a regulation (see below) but not a guideline. Further reliance is placed on measures reasonably open to obviate or minimise the relevant risk (see below).
(b)The regulation relied upon is the Regulation, namely the Mining and Quarrying Safety and Health Regulation 2001.
(c)The breaches of the Regulation, and further the act or omission alleged to constitute the breach, together with the time and place of those acts and omissions are particularised below.
(d)The breaches of the Regulation are those pleaded in CP9(b)-(h), with further particularity of the precise sub-regulation breached as pleaded therein being:
(i) CP9(b) - Sections 6(1) and (3)(a), (b) and (c), 7(1) and (2)(b) and (e), 8(2) and 9(2)(a), (b) and (c) and (3)(c) of the Regulation;
(ii) CP9(c) - Section 100(1)(a)(i) and (iii) of the Regulation;
(iii) CP9(d)-Section 100(1)(b)(i)-(v) of the Regulation;
(iv) CP9(e) - Section 105(1) of the Regulation;
(v) CP9(f) - Section 106(a) of the Regulation;
(vi) CP9(f) - Section 108(1) of the Regulation. Pursuant to s 108(2) the monitoring referred to in CP9(f) had to be undertaken during the plant's use or after use and otherwise 'as necessary'. The maintenance on unit 40, involving its brakes, was excessively long in interval and excessive in interval of what was necessary or reasonably necessary. The last scheduled maintenance occurred no later than on 24 June 2009 (see CP7(a)); and
(vii) CP9(h)- Section 109(1), (2) and (3) of the Regulation.
(e)Further there was a breach by Mr Hendry of s 112 of the Regulation in that, having regard to the nature and level of the risk (namely the relevant risk) from plant used at the mine (namely unit 40), it was necessary in managing the risk for the respondent, as site senior executive, to ensure (which he did not):
(i) in breach of s 112(1)(a), the mine had written specifications (relevantly those specifications in respect of unit 40 referred to in CP6(d)) for the plant (namely unit 40) and instructions for its use (namely not to load unit 40 beyond such specifications);
(ii) pursuant to s 112(1)(b), a copy of the specifications (namely those in (i) above) were available to (in the sense of made available to) and readily accessible by each worker (namely Mr Bertoni and any other person, in the mine driving or loading unit 40) to use the plant (namely unit 40) at the mine; and
(iii) section 112(1)(c), a copy of the instructions (namely those in (i) above) were available to (in the sense of made available to), and readily accessible by, each worker (namely Mr Bertoni, and any person engaged in loading unit 40) required to undertake activity, namely driving and loading unit 40 respectively, to which the instructions related at the mine;
(f)Further in respect of each of the alleged breaches in P1(a)-(i), particular measures which could and ought reasonably and practicably to have been employed to discharge the obligation are those particularised in P2(d)(iii)-(vi) above.
(g)Each of the breaches which occurred was a continuing breach, the breach occurring up to and including the occasion of the incident which occurred on 27 July 2009 at about 5.00 am, pleaded in CPS.
4.Breaches of obligations other than those involving risk, the acts or omissions constituting the breach including the time and place of those acts or omissions.
Further, or in the alternative in respect of P1(f)-(i) above:
(a)there was a failure to include as part of the mine management system, as pleaded in CP6(b), in respect of unit 40, or plant of its type introduced into the mine by a contractor (here Mansell), a system such that its suitability for mine use was identified and that it was operated within specifications (unit 40 not being so suitable or so operated, because it bore the general and operational attributes pleaded in CP5(b), 6(d) and 6(f)-6(i)) with persons in the mine operating or loading the plant instructed as to such specifications with further instructions to strictly adhere to same so as to avoid overloading. Otherwise unit 40 should have been taken out of service in the mine.
(b) there was a failure to inspect unit 40 so as to detect the scoring to the brakes thereof which resulted in the incident in CP8.
(c)each breach which occurred was a continuing breach, the breach occurring up to and including the time of the incident which occurred on 27 July 2009 at about 5.00 am, as pleaded in CP8.
5.Particulars of the unacceptable level of risk, as pleaded in CP9(a).
This is particularised in P2 above.
6.Particulars of ‘risk assessment’ and ‘monitor risk’, as pleaded in CP9(b).
(a)The term 'risk assessment' was a misnomer, the correct term which ought to have been used, in lieu thereof and which is relied upon, is 'hazard identification' and 'risk analysis' respectively, the meaning of each term and what is required as a matter of law in respect of the same being that which appears in ss 6 and 7 of the Regulation and what is relied upon is the process set out therein.
(b) The term 'monitor risk' is that used in s 9 of the Regulation and what is relied upon is the process set out in s 9.
(c)No such hazard identification or risk analysis was undertaken in respect of the relevant risk.
7.Particulars of the respects in which unit 40 was not fit for its intended use, as pleaded in CP9(c).
Reliance is placed upon the matters pleaded in CP5, CP6 and CP7.
8.Particulars of the respect in which it was necessary to manage risk from unit 40, as pleaded in CP9(d).
Reliance is placed upon the matters pleaded in CP5, CP6 and CP7.
9.Particulars of the 'specifications of unit 40' relied upon, the particular 'controls' which would have been adequate and the alleged standard of work competency to safely operate unit 40, as pleaded in CP9(e).
(a) Reliance is placed upon the matters pleaded in CP5, CP6 and CP7.
(b)Unit 40, like any modern manufactured commercial vehicle, had specifications as to mass for safe carriage. These specifications are pleaded in CP5(d).
(c)Each worker in the mine operating unit 40 (here Mr Bertoni) and persons who were engaged in loading unit 40 ought to have been instructed as to such specifications, and to adhere to and not exceed the same, so as to obviate overloading in excess of such specifications. Otherwise unit 40 ought to have been taken out of service in the mine.
10.Particulars of the way in which unit 40 was not operated at an acceptable level of risk, as pleaded in CP9(f).
Reliance is placed upon CP5, CP6, CP7 and CP8 and P2 above.
11. Particulars of deterioration causing an unacceptable level of risk and the language 'decided the plant was likely to operate without causing an acceptable level of risk until it was next monitored’ and ‘information for preventative maintenance’, as pleaded in CP9(g).
Reliance is placed upon the matters pleaded in CP5, CP6, CP7, and CP8 and P2 above.
12.Particulars of the meaning of ‘comprehensive and accurate mechanical operation’ as pleaded in CP9(i).
Reliance is placed on CP5, CP6 and CP7 and P2 above.
13.Particulars of what is meant by ‘properly’ and correctly’ as pleaded in CP9(1(iii)-(v).
(a)Reliance is placed on CP6, CP7 and CP8.
(b)Unit 40 was only capable of proper and correct operation, in the sense in each case of being safe, efficient and with reasonably acceptable obviated or minimised risk of injury apropos the relevant risk, if its suitability and fitness for purpose for use, manner of maintenance and manner of use, as particularised in the last mentioned paragraphs, was undertaken but it was not.”
Part of the problem which has led to this case is the original decision by the appellant to adopt a “scattergun” approach and charge the respondent with every conceivable breach. This approach signals an uncertainty in the prosecutor’s mind which is then replicated in the complaint. It also burdens a defendant with language which is cloudy rather than clear – language which is replete with qualifying clauses and which only serves to engender uncertainty in the mind of a reader. No defendant should have to wade through the hip-deep obscurity of Particular 2(d)(iii):
“The risk was unacceptable (Act s 26) because of:
…
(iii)the matters pleaded in CP9(a) and CP9(i) to (l), not just as measures to be ensured, but also in the alternative as measures per se which were reasonably capable of being implemented so as to obviate or minimise the relevant risk, and so as to bring the level of risk from mine operations to be within acceptable limits and as low as reasonably achievable having regard to the likelihood of injury to persons arising out of the relevant risk and the severity of the injury which might occur;”
This turbid (and turgid) turn of phrase is present elsewhere in the particulars. For example, paragraph 13(b) (in [24] above) is nothing more than a string of clauses which tells the reader nothing.
The particulars do not elucidate; if anything, they make the task of understanding the complaint harder and require a defendant, in many instances, to engage in guesswork as to which assertion relates to which section of the Act.
The requirements for a valid complaint
The main argument for each respondent (before the industrial magistrate) was that the complaints did not disclose an offence known to the law. It was successfully argued that, on a fair reading of the complaint and the particulars, it was not possible to identify the particular obligation which was said to have been breached.
The appellant, of course, says that the charges are obvious and able to be considered.
It is convenient to set out, at this point, the principles which are applicable in this set of circumstances. There are two broad issues which arise from the notice of appeal:
(a) Does the complaint disclose an offence under the Act? and
(b) Can the alleged breaches be joined on the one complaint?
Disclosure of an offence under the Act – the principles
The complaint alleges a breach of s 31 of the Act by virtue of a failure or failures to discharge the obligations imposed by s 36 and s 39 of the Act. Section 31 operates in an ambulatory fashion in that it creates offences by reference to contraventions of obligations appearing in other sections of the Act.
The requirements for a valid complaint are to be determined, first, by reference to the relevant provisions of the Act and the Justices Act. Secondly, the complaint must be considered against the background of the common law requirements and the constructions the courts have given to the relevant provisions or their counterparts in other jurisdictions.
The Justices Act does not descend to great detail in setting out the requirements for a complaint.
Section 42 requires, among other things, that a complaint be in writing.
Section 43 dictates that a complaint shall be for one matter only, subject to certain exceptions. A complaint may be for two or more matters where the matters of complaint:
(a) are alleged to be constituted by the same act or omission on the part of the defendant; or
(b) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
(c) are founded on substantially the same facts; or
(d) are, or form part of, a series of offences or matters of complaint or a similar character.
Section 47 allows that the description of any offence in the words of the Act, order, by-law, regulation or other instrument creating the offence, or in similar words, shall be sufficient in law.
The common law requirements for a valid complaint were considered in Kirk v Industrial Court of New South Wales[2] and the following were identified:
[2](2010) 239 CLR 531 at [26].
(a) A defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge
(b) The complaint must inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet.
(c) Such a charge “must at least condescend to identifying the essential factual ingredients of the actual offence”.
(d) An information (complaint) must specify “the time, place and manner of the defendant’s acts or omissions”.[3]
[3]Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J.
Another factor which should be taken into account when assessing the competence of a complaint is the requirement that it contain sufficient identification of the acts or omissions the subject of the charge as to allow a defendant to rely upon any defence available under the relevant statute.
In Kirk the complaint was brought under legislation similar in many respects to the Act. The New South Wales legislation also provided for a defence to be available if the defendant could prove that it was not reasonably practicable to comply with the relevant provision of the Act or regulations or that the commission of the offence was due to causes over which the defendant had no control.
Section 45 of the Act provides it is a defence in a proceeding of the type in this case for the defendant to prove:
(a) That, where a regulation has been made about the way to achieve an acceptable level of risk, the person followed the way prescribed in the regulation to prevent the contravention, or
(b) Where there is no such regulation – that the person took reasonable precautions and exercised proper diligence to prevent the contravention, or
(c) That the commission of the offence was due to causes over which the person had no control.
When defences of that type are available, then the complaint must identify the measure or measures that could have been taken but were not.[4]
[4]Kirk at [38].
Sections 31 and s 45 of the Act are relevantly the same as sections 24 and 37, respectively, of the Workplace Health and Safety Act 1995. In NK Collins Industries Pty Ltd v The President of the Industrial Court and Twigg[5] the Court of Appeal considered those provisions of the Workplace Health and Safety Act. Holmes JA[6] said:
[5][2013] QCA 179.
[6]Fraser JA and M Wilson J agreed.
(a) “… for a defence under s 37 to have a rational relationship to ensuring workplace health and safety, it must be responsive to some identified aspect of what the employer has done or failed to do in the conduct of its business which has created the risk.”[7]
[7]Ibid at [57].
(b) “For s 37 to have any sensible application, the same approach must be taken to a contravention of s 24 as was taken in Kirk to contravention of s 15 and s 16 of the New South Wales Act, so that the relevant breach “is the measure not taken, the act or omission of the employer”.”[8]
(c) “… it [is] incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk”[9]
[8]Ibid at [58].
[9]Ibid at [59].
A complaint must also identify the legal elements of the offence charged.[10]
[10]Kirk at [26].
The extent of the wording which must be used in a complaint was considered in DPP v Kypri[11] the defendant was charged with failing to comply with a requirement to furnish a sample of breath for analysis in accordance with a requirement of the Road Safety Act 1986 (Vic). Section of 49 of that statute was ambulatory in nature and s 55 set out a number of requirements. Thus, s 49 created as many different offences (of failing to comply with a requirement under s 55) as there were different kinds of requirements under s 55. The charge did not identify the part of s 55 under which the requirement was made.
[11](2011) 33 VR 157.
Section 27 of the Victorian Magistrates Court Act has a similar effect to s 47 of the Act – it allows a charge to be made by reference to the words etc of a section. The effect of that section was considered by Nettle JA[12]. I respectfully adopt what his Honour said[13] about the operation of that section and apply it to the provisions of the Act and the Justices Act:
[12]Ashley and Tate JJA agreed.
[13]Kypri at [15]-[16].
(a) As s 31 operates in an ambulatory fashion, creating offences by reference to contraventions of obligations otherwise appearing elsewhere in the Act, it is semantically inapt to speak of something as framed in terms “similar” to 31 unless it specifically identifies the particular obligation which is alleged to have been breached.
(b) That does not mean that every complaint which alleges an offence under s 31 is fatally flawed unless it refers by name to the subsections of s 36 and s 39 under which the breach is alleged to have occurred.
(c) A complaint is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the complaint in their context. If, therefore, the contents of the complaint are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.
(d) Where, however, the complaint does not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 36 or s 39 under which the breach is alleged to have occurred, the complaint is defective because it fails to convey the nature of the offence alleged.
The appellant relied upon the analysis of Kirk undertaken by the New South Wales Court of Appeal in GPI (General) Pty Ltd v Industrial Court (NSW)[14]. In that case, Hodgson JA[15] said that Kirk had established:
[14](2011) 207 IR 93.
[15]Allsop P agreed.
(a) That it is necessary that a statement of the offence identify the act or omission said to constitute the offence, and
(b) In the case of an omission this requires identification of the measure that should have been taken to address the relevant risks.[16]
[16]Ibid at [32].
Disclosure of an offence under the Act – the complaint and the particulars
There are three components which need to be considered:
(a) The Complaint,
(b) The particulars which accompanied the Complaint, and
(c) The further particulars.
(a) The Complaint
The formal part of the Complaint does not identify any offence alleged to have been committed by Mr Hendry. No obligations are identified. Further, it does not specify whether there are any obligations in relation to any particular risk. By itself, it is insufficient to allow a defendant to know which obligation or obligations has or have been contravened.
(b) The particulars which accompanied the Complaint
Clause 9 commences by asserting that Mr Hendry failed to discharge the obligations imposed by s 36 and s 39 of the Act. But, in the 13 subparagraphs which follow, none of the many obligations contained in those two sections are specifically identified.
An example of the difficulty imposed upon the defendant can be seen in clause 9(a) which asserts that Mr Hendry failed “to ensure the risk to persons in the mine from operations were at an acceptable level”. The words “risk” and “acceptable” appear in at least four obligations set out in s 36 and s 39. It cannot be determined from the complaint which of those obligations is said to have been the subject of failure.
In clause 9(b)-(h) reference is made to some of the regulations. It is not possible to tell whether a breach of those regulations as alleged is said to constitute a breach of the obligation under s 36(1)(a) or of obligations in relation to other particular risks. Clause 9(e)-(h) allege failures in respect of unit 40 but these are replete with uncertainty, insufficient particularisation of what an unacceptable risk is, a failure to particularise other failures and a failure to specify the capability which might have been affected by the failure to service the unit.
Clauses 9(i)-(m) allege various failures to ensure the development and enforcement of procedures. These could be breaches of an obligation under at least six subsections of both s 36 and s 39.
The appellant contends that these problems are, at least in part, remedied by the particulars of facts given in the paragraphs in clauses 1 – 8 of the particulars. I do not consider that they provide any such assistance. There is no explicit connection between a particular set of alleged facts and a particular obligation or alleged breach of that obligation. It is unclear how the particulars preceding clause 9 relate to the failings alleged in clause 9.
(c) The further particulars
Although lengthy, and structured in a manner suggestive of completeness, the further particulars provided do not assist a reader to know what the offence is, what its legal constituents are and what the defendant ought to have done. There remains uncertainty, for example, about:
(a) When an obligation ought to have been fulfilled;
(b) What should have been done at the time of any failure to comply with statutory obligations;
(c) What should have been done prior to any breach;
(d) How the suggested action would have prevented the injuries to Mr Bertoni.
Have the legal ingredients of the charge been established?
A complaint which does not expose the legal ingredients of the charge is a nullity. This complaint has not disclosed those ingredients.
The offence created by s 31 of the Act is similar to the section considered in Kypri[17]. In that case the section in question created as many different offences as there were types of requirement. Thus, under the Act, s 31 creates as many offences (of failing to comply with s 36 and s 39) as there are obligations under those sections. A failure to identify the act which comprises the offence, that is, the particular obligation which has been ignored and the measure that could have been taken, renders the complaint a nullity.
[17](2011) 33 VR 157.
In the further particulars, the complainant has, in the main, simply set out the terms of the various obligations in s 36 and s 39. Those particulars then purport to refer to some steps which might have been taken but relates them to breaches of the Regulation. Those breaches are not a part of the complaint as originally framed; that is to say, in the light of the manner in which the complaint is drawn, the Regulation is entirely irrelevant.
Conclusion on the validity of the complaint
This complaint, and its particulars, fails at almost every level. It does not expose the legal ingredients of the charge. It does not provide the factual basis of all matters necessary to constitute a charge. It does not allege sufficient facts to allow a defendant to understand the charge being made. It does not identify, in an intelligible manner, the actions which should have been taken to address the relevant risks. It is a nullity. The Industrial Magistrate was correct and this appeal should be dismissed.
Other matters concerning the complaint were also argued. Given my conclusion on the status of the complaint, I will deal with them briefly.
The single charge argument
The appellant argues that the Industrial Magistrate erred in holding that s 234 of the Act does not allow more than one contravention of more than one obligation to be charged as a single charge. Section 234 provides:
“(2)More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.”
The Industrial Magistrate concluded that s 31 of the Act, being expressed in the singular, requires that there be a separate charge when contraventions of different obligations are alleged. The appellant argues that in coming to that conclusion the Industrial Magistrate failed to consider s 32C of the Acts Interpretation Act 1954 which provides that words in the singular include the plural.
Section 43 of the Justices Act 1886 prohibits the charging of more than one matter in a single complaint other than in certain specified exceptions. The appellant argues that s 234(2) of the Act constitutes an exception to s 43 of the Justices Act. In considering the application of the provision of the Acts Interpretation Act it must be borne in mind that the application of that Act may be displaced by a contrary intention appearing in any statute – see s 4 Acts Interpretation Act.
I consider that a contrary intention is manifested in s 234(2) of the Act. There is a restriction in s 234(2) created by the requirement that the contravention which is alleged happened within the same period and in relation to the same mine. In order to understand whether s 32C of the Acts Interpretation Act applies so as to allow “a safety and health obligation” to be read as “safety and health obligations”, it is appropriate to consider the whole of s 234(2). In doing that, it is also appropriate to bear in mind the provisions of the Justices Act relating to the charging of offences and the longstanding rule against duplicity.
To read the section as the appellant would have it read is inconsistent with the proper construction of s 234(2). The respondents would have the section read so that more than one breach of a single safety and health obligation may be charged as a single charge whereas, in order to be consistent, the appellant would have to argue that more than one contravention of any number of safety and health obligations may be charged if the acts or omissions giving rise to any number of contraventions happened within the same period. In other words, the controlling element is whether the contraventions occurred within the same period. They might be completely unrelated to each other. They might involve different employees. They might involve completely different facets of the operation of the mine. In other words, the appellant’s construction would allow for multifarious charges to be brought against a single defendant concerning numerous alleged breaches against numerous supposed obligations concerning any number of persons or things. The likelihood that that was the intention of the legislature is so remote that the reference to “a” safety and health obligation must be taken to displace the operation of s 32C of the Acts Interpretation Act.
Duplicity
Section 43 of the Justices Act 1886 prohibits the charging of more than one matter in a single complaint other than in certain circumstances. Section 43(2) states that when two or more matters of complaint are joined in the one complaint, each shall be set out in a separate paragraph. It is argued for the appellant that the Industrial Magistrate erred in finding that the complaint did not meet those requirements. That the complaint against Mr Hendry fails to fulfil that requirement is made manifest by the further particulars provided in May 2012. It is insufficient to answer the requirement of s 43(2) of the Justices Act simply to set out matters in paragraphs. The purpose of s 43(2) is to allow for the identification of the actual matter of complaint or the specific failure which is said to constitute the breach. The failures in the form of the complaint and the particulars have been considered above. The provision of further particulars does not assist the appellant. If anything, it has removed the complaint further from the requirement of s 43(2) of the Justices Act. The form of the complaint and the particulars is such that no paragraph can be identified which would permit a reader to understand what the charge against him or her was. On this point, the Industrial Magistrate was correct.
Amendment of the complaint?
The appellant argues that it was open to the Industrial Magistrate to cure any defects in the particulars by amendment of the complaint. Section 48 of the Justices Act provides the power to amend a complaint. The appellant refers to the statement of Dixon J (as he then was) in Broome v Chenoweth,[18] where, at 601, he said:
“Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.”
[18](1946) 73 CLR 583.
The appellant submits that the complaints and particulars against each respondent contain sufficient particulars to identify “the essential factual ingredients of the offence”.
I do not accept that the complaints and particulars do, in fact, state the essential ingredients of each offence for the reasons I have set out above. More importantly, I have found that the legal ingredients of the relevant offences have not been properly set out. There has been no proper averment. This was not a “slip or clumsiness” on the part of the appellant. It is, as I observed above, a reflection of a confused approach or a misunderstanding of the requirements of the relevant legislation. Where the complaint is a nullity then there is no power to amend it. Indeed, there is nothing, in law, to amend. On this point also, the Industrial Magistrate was correct.
Standing of the appellant
Mr Hendry advances an argument not advanced or adopted by any of the other appellants concerning the capacity of Mr Bell to institute the initial complaint against Mr Hendry. It is argued that in order to bring the complaint he needed to be validly appointed as the “Commissioner for Mine Safety and Health”. It is argued that, when the complaint was initiated, Mr Bell did not hold a valid appointment.
Section 234(5) of the Act states that proceedings for offences must be started by complaint of the “commissioner”. The “commissioner” is defined as the “Commissioner for Mine Safety and Health” under the Coal Mining Safety and Health Act 1999. Section 73A of the Coal Mining Safety and Health Act 1999 states:
“(2)The commissioner is to be appointed by the Governor in Council by Gazette Notice.”
In the Queensland Government Gazette published on 31 July 2009 the following appeared:
“Her Excellency the Governor, acting by and with the advice of the Executive Council and under the Coal Mining Safety and Health Act 1999, has approved the appointment of Stuart Lynn Bell as Commissioner for Mine Safety and Health from the date of Governor in Council approval until 31 August 2011.”
A similarly worded notice appeared in the Gazette of 7 December 2012 in which Mr Bell’s appointment was “approved” until 31 August 2013. In the Gazette of 22 April 2013 the relevant notice of appointment was in the following words:
“Stewart Lynn Bell is appointed as Commissioner for Mine Safety and Health for a term commencing from the day of publication of the gazette notice up to and including 31 March 2014.”
The argument for Mr Hendry was that notification in the Gazette that the Governor had “approved” the appointment of Mr Bell is not a complying appointment sufficient to satisfy s 73A of Coal Mining Safety and Health Act 1999. In other words, it is argued that Mr Bell was not properly appointed.
The term “Governor in Council” is defined in the Acts Interpretation Act 1954 as being the Governor acting with the advice of the Executive Council. The gazette notice recites that the Governor has acted with the advice of the Executive Council in approving the appointment of Mr Bell. Thus, it is the Governor in Council which has taken that step and the argument which is mounted on behalf of Mr Hendry is reduced to the contention that the Governor in Council approving an appointment is not the same as the Governor in Council making an appointment.
In the ordinary course of events, the advice by Executive Council to a Governor is made in the form of a recommendation which is contained in an Executive Council minute. The Executive Council Handbook provides in paragraph 8.2:
“Matters requiring approval by the Governor in Council are submitted in the form of a Minute which comprises a recommendation from the Executive Council to the Governor. When approved, the Minute becomes the official record of the decision taken.”
It follows from the above that the notification of the approval by the Governor of the appointment of Mr Bell must be taken to be a decision made by Governor in Council and the notification of that is the official record of the decision taken.
Further, a gazette notice is a statutory instrument – see s 6 and s 7 of the Statutory Instruments Act 1992. Section 20 of that Act provides that:
“All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.”
No evidence to the contrary was adduced.
Mr Bell was properly appointed.
Appeal against the costs order
On 4 March 2013 the Industrial Magistrate heard an application on behalf of Mansell whereby it sought an order that the appellant pay its costs. Mansell sought costs on the standard basis in an amount of approximately $215,000.
The power to award costs is found in Part 6 Division 8 of the Justices Act. Section 158B provides that if an order for costs is made then costs are to be ordered only on the relevant scale except where the court is satisfied that a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.
When the matter came before the Industrial Magistrate he awarded costs in the sum of $60,000. In his ex tempore reasons he considered the factors set out in s 158A and came to the decision that it was appropriate to make a costs order. He then considered whether or not this was a matter in which it would be appropriate for an award higher than scale to be made because of the complexity and importance of the case. He found that such an order should be made. His Honour then went on to find that an amount of $60,000 should be awarded. He said:
“And notionally how I’ve come to that is a view that the solicitors’ costs for the matter should be in the vicinity of about $40,000 and disbursements including counsels’ fees in the vicinity of $20,000.”
Section 158 of the Justices Act makes clear that a complainant can be required to pay the defendant’s costs if the complaint is dismissed. Section 158A constrains the exercise of that discretion by providing that such an order can be made “only if the justices are satisfied that it is proper that the order for costs should be made”.
Section 158A goes on to require the justices to take into account all relevant circumstances and then sets out six matters which must be taken into account.
It is clear that the Industrial Magistrate directed himself to each of those matters and considered each of them. There may have been some confusion in the consideration of s 158A(2)(d) which provides as one of the matters to be taken into account:
“whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant;”
In this case the order of dismissal was made, not on technical grounds, but on the substantial ground that there was no valid complaint before the court. It was not simply a matter of a non compliance with some aspect of a piece of legislation. The decision was that the complaint failed to establish either at law or in fact the matters necessary for it to proceed. As such I would regard it as having been dismissed on substantial grounds rather than technical grounds.
The consideration given by the Industrial Magistrate to the matters set out in s 158A demonstrates that he weighed the appropriate considerations and in coming to a decision that it was proper that an order for costs be made did not commit any error appealable or otherwise.
The appellant contends, in the event that I find as I have above, that the Industrial Magistrate erred in allowing a higher amount to be awarded as costs, rather than restricting costs to the scale of costs prescribed under the relevant regulation.
A higher amount for costs may be allowed where the justices are satisfied that it is just and reasonable having regard to the special difficulty, complexity or importance of the case.
The appellant argued that while the entire case might have been regarded as complex, the particular application concerning the nature of the complaint was not, of itself, complex. I cannot agree. In this case, the complexity arose, at least in part, because of the way in which the complainant had expressed himself in seeking to make the complaint. This was not a simple matter of a one or two page complaint. Numerous particulars were given which were said to be related in some way to numerous sections of the Act, The defendant was required to assess those allegations and then attempt to correlate them with sections of the Act.
While I accept that the decision made by the Industrial Magistrate to award costs in favour of Mansell and to award costs on the basis that there was the requisite “special difficulty, complexity or importance” necessary to award an amount higher than allowed under the relevant scale, I accept the argument for the appellant that the setting of $60,000 as the amount to be paid was attended by error.
His Honour rejected the amount sought by the respondent to this appeal as not being “within the ball park for this particular matter”. The assessment placed before him was not itemised for the justifiable reason that to do so would have further increased the costs. His Honour appears to have isolated the solicitor’s professional fees of $48,000 as relevant and rejected other claims, such as an engineering report, as unnecessary at that time. He did not, though, set out the reasoning which led him to arrive at a figure of $60,000 and then split that to represent solicitors’ costs of $40,000 and counsels’ fees of $20,000. While his Honour did give reasons for deciding to award costs and to awarding a higher amount, he has not provided reasons for arriving at the figure of $60,000. In those circumstances, I will allow the appeal so far as it relates to the calculation of the appropriate award for costs and remit that to the Industrial Magistrate’s Court for determination.
Orders
In matter C/2013/11 the appeal is dismissed.
In matter C/2013/12 the appeal is dismissed.
In matter C/2013/13 the appeal is dismissed.
In matter C/2013/14:
1. the appeal is allowed;
2. the decision of the Industrial Magistrate, so far as it relates to the quantification of costs is set aside; and
3. that matter is remitted to the Industrial Magistrate to proceed according to law.
I will hear the parties on the question of costs in this Court.
Annexure
Mining and Quarrying Safety and Health Act 1999
31 Discharge of obligations
A person on whom a safety and health obligation is imposed must discharge the obligation.
Maximum penalty—
(a) if the contravention caused multiple deaths—2000 penalty units or 3 years imprisonment; or
(b) if the contravention caused death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or
(c) if the contravention caused bodily harm—750 penalty units or 1 year’s imprisonment; or
(d) if the contravention involved exposure to a substance that is likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or
(e) otherwise—500 penalty units.
36 Obligations of persons generally
(1) A worker or other person at a mine or a person who may affect safety and health of persons at a mine or as a result of operations, has the following obligations—
(a) to comply with this Act, standard work instructions, and procedures applying to the worker or person that form part of a safety and health management system for the mine;
(b) if the worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness—to give the information to the other persons;
(c) to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk.
(2) A worker or other person at a mine has the following additional obligations at the mine—
(a) to manage the risk of injury or illness to himself or herself or any other person in the worker’s or other person’s own work and activities, so that the risk is at an acceptable level;
(b) to ensure, to the extent of the responsibilities and duties allocated to the worker or other person, that the risk of injury or illness to any person is managed in the work and activities under the worker’s or other person’s control, supervision, or leadership, so that the risk is at an acceptable level;
(c) to the extent of the worker’s or other person’s involvement, to participate in and conform to the risk management practices of the operations;
(d) to comply with instructions given for safety and health of persons by the mine operator or site senior executive for the mine or a supervisor at the mine;
(e) to work at the mine only if the worker or other person is in a fit condition to carry out the work without affecting the safety and health of others;
(f) not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.
38 Obligations of operators
(1) An operator for a mine has the following obligations—
(a) to ensure the risk to workers while at the operator’s mine is at an acceptable level, including, for example, by—
(i) providing a safe place of work and safe plant; and
(ii) maintaining plant in a safe state;
(b) to ensure the operator’s own safety and health and the safety and health of others is not affected by the way the operator conducts operations;
(c) to appoint a site senior executive for the mine;
(d) to ensure the site senior executive for the mine—
(i) develops and implements a safety and health management system for the mine; and
(ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine;
(e) to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from operations is at an acceptable level;
(f) to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system.
(2) Without limiting subsection (1), an operator has an obligation not to operate a mine without a safety and health management system for the mine.
(3) Subsection (1)(d) to (f) and subsection (2) do not apply to an operator of a mine that is an opal or gem mine, if no more than 10 workers are employed at the mine.
(4) However, a regulation may specify an opal or gem mine mentioned in subsection (3) to be a mine to which subsection (1)(d) to (f) and subsection (2) apply because of the size, nature or complexity of the mine’s operations.
39 Obligations of site senior executive for mine
(1) A site senior executive for a mine has the following obligations in relation to the safety and health of persons who may be affected by operations—
(a) to ensure the risk to persons from operations is at an acceptable level;
(b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive’s workers is at an acceptable level;
(c) to develop and implement a single safety and health management system for all persons at the mine;
(d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine;
(e) to train workers so that they are competent to perform their duties;
(f) to provide for—
(i) adequate planning, organisation, leadership and control of operations; and
(ii) the carrying out of critical work at the mine that requires particular technical competencies; and
(iii) adequate supervision and control of operations on each shift at the mine; and
(iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and
(v) appropriate inspection of each workplace at the mine including, where necessary, pre-shift inspections.
(2) Subsection (1)(c) does not apply to a site senior executive of a mine that is an opal or gem mine, if no more than 10 workers are employed at the mine.
(3) However, a regulation may specify an opal or gem mine mentioned in subsection (2) to be a mine to which subsection (1)(c) applies because of the size, nature or complexity of the mine’s operations.
40 Obligations of contractors
A contractor at a mine has an obligation to ensure, to the extent that they relate to the work undertaken by the contractor, that provisions of this Act and any applicable safety and health management system are complied with.45 Defences for div 2 or 3
(1)It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 in relation to a risk for the person to prove—
(a)if a regulation has been made about the way to achieve an acceptable level of risk—the person followed the way prescribed in the regulation to prevent the contravention;
or
(b)subject to paragraph (a), if a guideline has been made stating a way or ways to achieve an acceptable level of a risk—
(i)that the person adopted and followed a stated way to prevent the contravention; or
(ii)that the person adopted and followed another way that achieved a level of risk that is equal to or better than the acceptable level to prevent the contravention; or
(c)if no regulation prescribes or no guideline states a way to discharge the person’s safety and health obligation in relation to the risk—that the person took reasonable precautions and exercised proper diligence to prevent the contravention.
(2)Also, it is a defence in a proceeding against a person for an offence against section 31 for the person to prove that the commission of the offence was due to causes over which the person had no control.
(3)The Criminal Code, sections 23 and 24, do not apply in relation to a contravention of section 31.
(4)In this section, a reference to a guideline is a reference to the guideline in force at the time of the contravention.
234 Proceedings for offences
(1)A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate.
(2)More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.
(3)A person dissatisfied with a decision of an industrial magistrate in proceedings brought under subsection (1) who wants to appeal must appeal to the Industrial Court.
(4)The Industrial Relations Act 1999 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).
(5)A proceeding for an offence against this Act must be started by complaint of the commissioner.
(6) In this section—
person dissatisfied with a decision in a proceeding means—
(a) a party to the proceeding; or
(b) a person bound by the decision.
Mining and Quarrying Safety and Health Regulation 2001
6 Hazard identification
(1)A person who has an obligation under the Act to manage risk at a mine must identify hazards in the person’s own work and activities at the mine.
…
(3)The site senior executive must ensure hazard identification is done—
(a) when operations start at the mine; and
(b) during the operations; and
(c)when the operations change in size, nature, complexity or another way; and
….
7 Risk analysis
(1)A person who has an obligation under the Act to manage risk at a mine must analyse risk in the person’s own work and activities to decide whether the risk is at an acceptable level.
(2)The person must have regard to the following in analysing the risk—
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(b)the work environment and work methods for the mine’s operations;
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8 Risk reduction
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(2)The site senior executive must ensure hazard controls used to reduce risk in the mine’s work and local environments are appropriate having regard to the following—
(a) the interaction of hazards present in the environments;
(b) the effectiveness and reliability of the controls;
(c)other reasonably available relevant information and data from, and practices in, other industries and mining operations.
9 Risk monitoring
(1)A person who has an obligation under the Act to manage risk at a mine must monitor risk in the person’s own work and activities at the mine.
(2)The site senior executive must ensure risk in the mine’s work and local environments caused by the mine’s operations is monitored—
(a) when the operations start; and
(b)at appropriate intervals or stages during operations at the mine; and
(c)when the mine’s risk management practices or procedures change significantly.
(3) Monitoring must include—
(a) the occurrence of incidents, injuries and ill health; and
(b)the level of hazards present in the mine’s work environment; and
(c)for monitoring under subsection (2)—the level of hazards from the mine’s operations present in the mine’s local environment.
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100 Selection and design
(1)A person who has an obligation under the Act to manage risk at a mine in relation to the selection and design of plant must ensure—
(a) the plant—
(i)is fit for its intended use and use in its intended work environment, including, for example, a hazardous area; and
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(iii)has appropriate provision for safe access, egress and maintenance;
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105 Commissioning
(1)The operator or site senior executive must ensure plant is commissioned in its operating environment at the mine before it is used to ensure the following—
(a)its integration into the operating environment and associated systems;
(b)it performs to within its specifications, if any, held at the mine under section 112;
(c)hazard controls for the plant are adequate and operating within the specifications mentioned in paragraph (b);
(d)mine workers who are required to operate the plant are competent to operate it safely.
106 Operating plant
A person who has an obligation under the Act to manage risk at a mine in relation to the operation of plant must ensure the plant is not operated—
(a) in a way that creates an unacceptable level of risk; or
(b)if inspections, tests or monitoring show the plant is unfit for use; or
(c) if the plant is locked-out and tagged.
108 Monitoring
(1)A person who has an obligation under the Act to manage risk at a mine in relation to monitoring plant must monitor the plant’s use, condition and performance to—
(a)detect any deterioration causing an unacceptable level of risk; and
(b)decide if the plant is likely to operate without causing an unacceptable level of risk until it is next monitored; and
(c) provide information for preventive maintenance.
(2) The person must ensure the monitoring is carried out—
(a)during the plant’s use at scheduled intervals or continuously, or after scheduled periods of use; and
(b) otherwise as necessary.
109 Service and maintenance
(1)The operator or site senior executive must ensure plant in use at the mine is serviced and maintained so it—
(a) is capable of performing its intended functions; and
(b)is within the condition and performance limits of its specifications.
(2)If a breakdown of the plant is likely to cause an unacceptable level of risk, the operator or site senior executive must ensure the servicing and maintenance is based on a preventive strategy.
(3)If the plant can not be serviced and maintained under subsection (1), the operator or site senior executive must ensure it is taken out of service.
Justices Act 1886
43 Matter of complaint
(1)Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
(a)in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
(b)in cases other than cases of indictable offences—if the matters of complaint—
(i)are alleged to be constituted by the same act or omission on the part of the defendant; or
(ii)are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
(iii) are founded on substantially the same facts; or
(iv)are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
(c) when otherwise expressly provided.
(2)When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.
(3)At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section—
(a)if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or
(b)if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.
(4)If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant’s defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately.
48 Amendment of complaint
If at the hearing of a complaint, it appears to the justices that—
(a)there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
(b)there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
(c)there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
then—
(d)if an objection is taken for any such defect or variance—the justices shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.
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