BM Alliance Coal Operations Pty Ltd v le Roux

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

BM Alliance Coal Operations Pty Ltd v le Roux [2023] ICQ 31

PARTIES:

BM ALLIANCE COAL OPERATIONS PTY LTD

(applicant)

v
JACQUES LE ROUX, CHIEF INSPECTOR OF COAL MINES, RESOURCES SAFETY AND HEALTH QUEENSLAND

(respondent)

FILE NO/S:

C/2023/44

C/2023/45

PROCEEDING:

Applications

DELIVERED ON:

5 December 2023

HEARING DATE:

1 December 2023

MEMBER:

Davis J, President

ORDERS:

1.   The application in appeal C/2023/44 is dismissed.

2.    The application in appeal C/2023/45 is allowed and the directive is stayed pending determination of the appeal or earlier order.

3.   In both applications, costs are reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant is a coal mine operator –  where the applicant had in place safety procedures in the event of electrical storms – where the respondent is an inspector authorised to give directives to coal mine operators – where the respondent gave directives to the applicant – where the directives concern safety procedures at the mine operated by the applicant during electrical storms – where the directive requires operations at the coal mine to cease during an electrical storm – where the applicant appealed the making of the directive – where the applicant applied for a stay of the directive – where the Court has jurisdiction to grant the stay for the purpose to “secure the effectiveness of the appeal” – where the applicant submits it will incur significant financial loss by closure of its operations during electrical storms – where the applicant submits that its current procedures provide a lower level of risk than does the directive – whether the stay should be given to preserve the effectiveness of the appeal

Administrative Appeals Tribunal Act 1975 (Cth), s 44A
Child Protection Act 1999, s 199
Coal Mining Safety and Health Act 1999, s 6, s 7, s 18, s 25, s 29, s 30, s 31, s 33, s 34, s 39, s 41, s 42, s 44, s 45, s 45A, s 46, s 125, s 166, s 168, s 174, s 245, s 246

Dangerous Prisoners (Sexual Offenders) Act 2003
Environmental Protection Act 1994, s 535, s 539B
Health Practitioners (Professional Standards) Act 1999, s 351
Police Powers and Responsibilities Act 2000, s 48, s 143, s 177, s 179, s 645
Resources, Safety and Health Queensland Act 2000
Uniform Civil Procedure Rules 1999, r 761

CASES:

Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited
Attorney-General for the State of Queensland v Fardon [2011] QCA 111, followed
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, cited
Australian Leisure & Hospitality Group Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QSC 354, followed
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, cited
BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health…

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Details
Case
[2023] ICQ 31
Decision Date

CaseChat Overview and Summary

In the case of BM Alliance Coal Operations Pty Ltd v le Roux, the coal mine operator, BM, has appealed directives issued by Mr le Roux, the Chief Inspector of Coal Mines under the Coal Mining Safety and Health Act 1999 (CMSH Act). BM contests two directives issued on 25 October 2023: one under section 166 of the CMSH Act directing specific preventative actions during electrical storms, and another under section 168 requiring amendments to the mine’s safety and health management system. Pending the appeal, BM seeks a stay of these directives, arguing that they will incur significant financial losses and that their current safety procedures present a lower risk than the directives require. Mr le Roux concedes that one of the directives should be stayed but resists the stay for the other.

The legal issues central to this case revolve around the criteria for granting a stay of directives under the CMSH Act. The court must determine whether the stay is necessary to secure the effectiveness of the appeal, balancing BM’s potential financial losses against the public interest in ensuring safety at coal mines. The court’s decision hinges on whether the directives, particularly the one under section 166, effectively lower the risk during electrical storms and whether such a reduction in risk is reasonably achievable. BM has presented expert evidence suggesting that its procedures pose a lower risk than the directives require.

The court carefully considered the purpose of the stay, as outlined in section 245 of the CMSH Act, which aims to secure the effectiveness of the appeal. The court found that the section 166 directive is reversible, meaning that if BM prevails on appeal, the directive would become null and void. Although BM argued that it would suffer financial losses, the court noted the absence of quantified losses and determined that the directive was unlikely to increase risk. Additionally, the objects of the CMSH Act, which prioritize safety and health, supported the refusal of the stay. The court concluded that the public interest in achieving these objectives outweighed BM’s financial considerations.

Consequently, the court dismissed the application concerning the section 166 directive but allowed the stay for the section 168 directive, as Mr le Roux did not press for compliance pending the appeal. The court reserved costs in both applications.

Orders

Orders of the court

1. The application in appeal C/2023/44 is dismissed.

2. The application in appeal C/2023/45 is allowed and the directive is stayed pending determination of the appeal or earlier order.

3. In both applications, costs are reserved.

Background

Background to the litigation

BM has appealed two directives given by Mr le Roux in his capacity as Chief Inspector of Coal Mines, Resources Safety and Health Queensland. Those directives were given pursuant to ss 166 and 168 of the Coal Mining Safety and Health Act 1999 (CMSH Act). Pending appeal, BM seeks a stay of the two directives. Mr le Roux concedes that one of the directives ought to be stayed. He resists the application to stay the other.Background Pursuant to its obligations under the CMSH Act, BM has:1.appointed a Site Senior Executive for the mine;[1] and2.ensured that the Site Senior Executive has developed and implemented a safety and health management system for the mine.[2][1]Coal Mining Safety and Health Act 1999, s 41(1)(d).[2]Coal Mining Safety and Health Act 1999, s 41(1)(e). BM has in place safety procedures which apply to work being conducted during electrical storms. On 25 October 2023, Mr le Roux gave two directives to the mine’s Site Senior Executive. One was given pursuant to s 166 of the CMSH Act directing the Site Senior Executive to take particular corrective or preventative action to prevent risk reaching an unacceptable level at the mine (the s 166 directive). The second directive, also given on 25 October 2023, but given pursuant to s 168 of the CMSH Act, directs the amendment of the mine’s safety and health management system to incorporate the preventative actions directed pursuant to s 166, or to implement other safety controls so as to reduce the risk to a level as low, or lower than, the level which would be achieved by taking the preventative actions (the s 168 directive). Both the directives concern safety measures to be undertaken during periods of severe weather involving lightning. The s 166 directive is as follows:“Directive Given:Pursuant to section 166 of the Act, I direct the SSE[3] to take the following preventative actions at the Mine immediately upon the receipt of this Directive, in order to prevent Risk whilst a Level 3 TARP is in place reaching an unacceptable level:[3]A reference to the Site Senior Executive. (a)When a Level 2 TARP is in place, requiring coal mine workers operating any HME with rubber tyres >24” (including HME[4] with rubber tyres >24” and >95% nitrogen) to:[4]Heavy Mobile Equipment. (i) park up in Safe Park Up Locations as directed by their supervisor; and(ii) exit the cabin and relocate inside a Safe Building efficiently and safely (no rushing); and(iii) remain inside a Safe Building until Mine control communicates to all personnel that ‘the lightning alert has been lifted’.(b)Taking such other actions as the SSE considers to be necessary in order to facilitate the safe and timely discharge of the above actions, including, but not limited to, giving consideration to whether the actions in (a) ought to occur in a Level lower than a Level 2 TARP in order to ensure that all coal mine workers operating HME with rubber tyres >24” have sufficient time to park up in a Safe Park Up Location, exit the cabin, and relocate inside a Safe Building efficiently and safely (no rushing) before a Level 3 TARP is reached.In this Directive:Heavy Mobile Equipment (abbreviated to HME) has the same meaning as in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022), namely:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr le Roux counters all this by submitting that the directive operates so that the mine is shut down when the level 2 alert occurs, so when the storm is 30 kilometres from the mine. Therefore, by the time of any danger of lightning strikes, the workers should have left the vehicles and be in the safety buildings.Conclusions I was informed by both parties during argument that the s 168 appeal will follow the result of the s 166 appeal. Section 166 gives Mr le Roux jurisdiction to make a directive where he “reasonably believes a risk from coal mining operations may reach an unacceptable level”. That jurisdictional fact gives rise to both a subjective state of mind and an objective finding. Mr le Roux must actually believe that risk may reach an unacceptable level and objectively that belief must be reasonable.[51][51]See generally George v Rockett (1990) 170 CLR 104. As already observed, the risk is only at an acceptable level if it is not at the lowest level reasonably achievable. The power vested in Mr le Roux is to give a directive “to take stated corrective or preventative action to prevent the risk reaching an unacceptable level”. On a proper construction of ss 29, 41, 42 and 245, as the power is to “prevent the risk reaching an unacceptable level”, the power is only exercisable if the directive lowers risk in the sense that the level of risk in an electrical storm with the s 166 directive being followed is lower than if it was not followed. The appeal is a hearing de novo, so as regards the jurisdictional facts within s 166, it is the Court’s belief and the Court’s objective assessment which becomes relevant. The Court will hardly hold the belief unless it is reasonably held. Therefore, the actual issues on appeal will be:1.whether the s 166 directive in fact lowers risk;2.is lowering risk in that way reasonably achievable? BM also points to events in 2021 and 2022 concerning its Saraji Mine. Directives were given to BM concerning operations during electrical storms. Directives requiring the cessation of mining activities during electrical storms were given but ultimately withdrawn. This at least shows that views differ as to whether operations during electrical storms can safely continue. BM has raised a clear prima facie case on the first factual question. It has produced expert evidence which supports its case. It is not contended by Mr le Roux that Mr Gillespie is not properly qualified to express the opinions which he expresses. However, I decline to grant the stay in consideration of the purpose identified in s 245. In particular:1.the s 166 directive is reversible in that, if BM was successful in its appeal, the directive becomes of no effect and the position pertaining before the directive issued is restored;2.true there will be financial losses suffered by BM but, in the absence of quantification of those losses, I do not find that the discretion to grant a stay should be exercised to secure the effectiveness of the appeal;3.it is unlikely that compliance with the directive will increase risk. The safety obligation upon BM and its Site Senior Executive requires them to carry out the directive so no unacceptable risk arises. This obliges them to ensure that workers are in the safe building before the storm arrives;4.Mr le Roux does not press compliance with the s 168 directive pending hearing of the appeal so amendments to the safety and health management system will not have to be reversed.5.The objects of the CMSH Act are to protect the safety and health of persons working at coal mines.[52] The public interest in the achievement of those objects favours the refusal of the stay. [52]Section 6.

Ratio Decidendi

Legal Principle Established

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