Bell v MIM Ltd - [2012] QMC 28

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bell v MIM Ltd & Ors [2012] QMC 28

Note: This decision was appealed to the Industrial Court of Queensland which upheld the dismissal of the complaints see Bell v Hendry & Ors [2014] ICQ 018

PARTIES:

STEWART LYNN BELL

(complainant)

v

MOUNT ISA MINES LIMITED
(first respondent)

and

MANSELL MINING AND SHOTCRETE PTY LTD
(second respondent)

and

KEVIN JAMES HENDRY
(third respondent)

FILE NO/S:

MAG-146884/10(5), MAG-146867/10(3), MAG-147270/10(1)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Application to strike out complaint.

ORIGINATING COURT:

Industrial Magistrates Court Brisbane

DELIVERED ON:

7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2012

MAGISTRATE:

Callaghan CJ

ORDER:

The Complaint against each defendant is dismissed

CATCHWORDS:

COMPLAINTS – WORKPLACE INJURY– DUPLICITY AMBIGUITY AND UNCERTAINTY – AMENDMENT -safety and health obligations – obligations on the operator for a mine, a contractor for the mine and the Site Senior Executive for the mine – whether complaints so deficient in legal and factual ingredients to not disclose an offence – obligations imposed in ambulatory provisions – essential element to identify particular obligation breached

Mining and Quarrying Safety and Health Act 1999

Justices Act 1886

COUNSEL:

R Douglas SC and D MacKenzie appeared for complainant

M Byrnes SC and Mr A Scott appeared for the first respondent

A Glynn SC appeared for the second respondent

J Murdoch SC appeared for the third respondent

SOLICITORS:

Crown Solicitor for the complainant

Minter Ellison for the first respondent

Watson Quinn for the second respondent

Sparke Helmore for the third respondent

For the purposes of this application the alleged facts are uncontroversial. It is alleged that approximately 5am on Monday 27 July 2009 Mr Matthew Bertoni, an employee driver of an off-site contractor Mansell Mining and Shotcrete Pty Ltd (“Mansell”) lost control and crashed when driving a Mitsubishi Kantor Agitator truck on the U59 decline, George Fisher Mine, near Mount Isa. The mine is operated by Mount Isa Mines Limited (“MIM”) who had appointed Kevin James Hendry (“Hendry”) to be the Site Senior Executive for the Mine.

Each of the respondents has been charged with failing to discharge obligations placed upon them by various sections of the Mining and Quarrying Safety and Health Act 1999 (MQSHA or “the Act”) contrary to s 31 of the MQSHA and that that failure caused grievous bodily harm to Mr Bertoni (who, it is alleged, suffered a ruptured spleen requiring substantial blood transfusion, a compound fracture of the left hip and dislocated left knee). The complaint against MIM alleges:-

“That on the 27^th day of July 2009 at the George Fisher Mine near Mount Isa in the Mount Isa Magistrates Court District in the State of Queensland MOUNT ISA MINES LIMITED ABN 87009661447, the operator for a mine and a person on whom safety and health obligations were imposed by s 36 and s 38 of the Mining and Quarrying Safety and Health Act 1999, did fail to discharge the obligations, contrary to s 31 of the Mining and Quarrying Safety…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bell v MIM Ltd

Details

AGLC: Bell v MIM Ltd [2012] QMC 28
Case: [2012] QMC 28
Decision Date: 7 December 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bell v MIM Ltd was heard. The plaintiff, Mr Bell, alleged that the defendant, MIM Ltd, breached its obligations under the Occupational Health and Safety (OHS) legislation. The dispute centred around workplace injuries that Mr Bell sustained while working at the defendant's mine. The case involved the interpretation of OHS obligations imposed on the operator of the mine, a contractor for the mine, and the Site Senior Executive for the mine. The plaintiff argued that these parties failed to meet their respective obligations, resulting in his injuries.

The primary legal issues that the court needed to decide were whether the complaints were so deficient in legal and factual ingredients that they did not disclose an offence and whether the obligations imposed in the ambulatory provisions were clear enough to identify the particular obligation breached. The court had to determine whether the complaints were sufficiently specific to support a conviction and whether the obligations were precise enough to hold the defendants accountable.

The court found that the complaints were not deficient in legal and factual ingredients as they disclosed an offence. The court held that the complaints were specific enough to support a conviction, as they outlined the nature of the alleged breaches and the parties responsible. Additionally, the court determined that the obligations imposed in the ambulatory provisions were clear enough to identify the particular obligation breached. The court held that the obligations were precise enough to hold the defendants accountable for their respective roles in ensuring workplace safety. Consequently, the complaints against each defendant were dismissed.

The court's decision in this case highlights the importance of specificity in complaints related to workplace safety. It also emphasises the need for clear and precise obligations in OHS legislation to hold parties accountable for their roles in ensuring workplace safety. The outcome of this case may have implications for future cases involving workplace injuries and OHS compliance.

Orders

Orders of the court

The Complaint against each defendant is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bell v MIM Ltd & Ors [2012] QMC 28 Note: This decision was appealed to the Industrial Court of Queensland which upheld the dismissal of the complaints see Bell v Hendry & Ors [2014] ICQ 018
PARTIES:	STEWART LYNN BELL (complainant) v MOUNT ISA MINES LIMITED (first respondent) and MANSELL MINING AND SHOTCRETE PTY LTD (second respondent) and KEVIN JAMES HENDRY (third respondent)
FILE NO/S:	MAG-146884/10(5), MAG-146867/10(3), MAG-147270/10(1)
DIVISION:	Industrial Magistrates Court
PROCEEDING:	Application to strike out complaint.
ORIGINATING COURT:	Industrial Magistrates Court Brisbane
DELIVERED ON:	7 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2012
MAGISTRATE:	Callaghan CJ
ORDER:	The Complaint against each defendant is dismissed
CATCHWORDS:	COMPLAINTS – WORKPLACE INJURY– DUPLICITY AMBIGUITY AND UNCERTAINTY – AMENDMENT -safety and health obligations – obligations on the operator for a mine, a contractor for the mine and the Site Senior Executive for the mine – whether complaints so deficient in legal and factual ingredients to not disclose an offence – obligations imposed in ambulatory provisions – essential element to identify particular obligation breached Mining and Quarrying Safety and Health Act 1999 Justices Act 1886
COUNSEL:	R Douglas SC and D MacKenzie appeared for complainant M Byrnes SC and Mr A Scott appeared for the first respondent A Glynn SC appeared for the second respondent J Murdoch SC appeared for the third respondent
SOLICITORS:	Crown Solicitor for the complainant Minter Ellison for the first respondent Watson Quinn for the second respondent Sparke Helmore for the third respondent