Bulga Underground Operations Pty Ltd v Nash

[2016] NSWCCA 37

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Hearing dates:

13 November 2015

Date of orders:

11 March 2016

Decision date:

11 March 2016

Before:

Bathurst CJ; Hidden J; Davies J

Decision:

1 Appeal dismissed;
2 Appeal against penalty allowed;
3 Order that in lieu of the penalty imposed by the trial judge, a penalty of $100 000 be imposed on the appellant;
4 Grant the respondent leave to appeal against the costs order made by the trial judge;
5 Allow the appeal against the costs order;
6 Order that the appellant pay 50% of the respondent’s costs in the court below.

Catchwords:

CRIMINAL LAW – breach of duty of employer under former OHS Act – whether employer failed to ensure the health, safety and welfare at work of its employees – whether failure to take steps that only minimise or manage risk can constitute breach of duty – whether particularised measure would have prevented exposure to risk – whether causal nexus between omission and risk

CRIMINAL LAW – appeal – where appeal under s 5AA Criminal Appeal Act – where appellate court finds error in proving charge on one particular, whether court can find appellant should have been convicted on a different particular – whether court has power to order a retrial

SENTENCE APPEAL – whether failure to consider objective seriousness of offence – whether trial judge erred in measuring quantum of fine against extent of employee’s injury – whether failure to include in fine components for specific and general deterrence – whether trial judge wrongly took into account defendant’s remorse – whether court should resentence

COSTS – whether error in apportioning costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912 (NSW)
Occupational Health and Safety Act 1983 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Amendment Act 2011 (NSW)
Occupational Health and Safety Regulation 2001 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409
AK v State of Western Australia [2008] HCA 8; 232 CLR 438
Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Baxter v R [2007] NSWCCA 237; 172 A Crim R 284
Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
Conway v The Queen [2002] HCA 2; 209 CLR 509
Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 293
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149
Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661
House v The King [1936] HCA 40; 55 CLR 499
Inspector Batty v Intercoast Refrigerated Transport [2012] NSWIRComm 55
James v Surf Rd Nominees Pty Ltd (No 2) [2005] NSWCA 296
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Latoudis v Casey [1990] HCA 59; 170 CLR 534
Maiden v Maiden [1909] HCA 16; 7 CLR 727
Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101
MB v Attorney General for NSW [2015] HCA 9
Milne v Attorney-General for the State of Tasmania [1956] HCA 48; 95 CLR 460
Morrison v Defence Maritime Services Ltd [2007] NSWLEC 552; 156 LGERA 365
NSW Department of Education and Training and Department of Juvenile Justice v Cahill No 2 [2011] NSWIRComm 33; 210 IR 112
O’Sullivan v The Crown in Right of the State of NSW Department of Education and Training [2003] NSWIRComm 74; 125 IR 361
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321
R v DH & AH [2014] NSWCCA 326
R v Irvine; R v Dynamic Industries Pty Ltd; and R v Cini [2009] VSCA 239; 25 VR 75
R v KB; R v JL; R v RJB [2011] NSWCCA 190
Royall v The Queen [1991] HCA 27; 172 CLR 378
Rummery v Chief Executive Office of Environment and Heritage [2014] NSWCCA 106
Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316
The Crown in Right of the State of NSW (Department of Education and Training) v O’Sullivan [2005] NSWIRComm 198; 143 IR 57
The GEO Group Australian Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 150
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94
Thorneloe v Phillip Filipowski [2001] NSWCCA 213; 52 NSWLR 60
Walker Corporation Pty Ltd v Director General Department of Environment and Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12
Weiss v R [2005] HCA 81; 224 CLR 300
WorkCover Authority of New South Wales v The Crown in Right of the State of NSW (Police Service of NSW) No 2 (2001) 104 IR 268
WorkCover Authority v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447

Category:

Principal judgment

Parties:

Bulga Underground Operations Pty Ltd (Appellant/ Cross Respondent)
Attorney General (Respondent/ First Cross Appellant)
Jennifer Ann Nash (Respondent/ Second Cross Appellant)

Representation:

Counsel:
D A Buchanan SC/ M L Shume (Appellant/ Cross Respondent)
J Agius SC/ R Reitano (Respondents/ Cross Appellants)

Solicitors:
Sparke Helmore Lawyers (Appellant/ Cross Respondent)
Crown Solicitors (Respondents/ Cross Appellants)

File Number(s):

2012/126435

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2014] NSWDC 186

Date of Decision:

05 November 2014

Before:

Curtis DCJ

File Number(s):

2012/126435

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Bulga Underground Operations Pty Ltd (the appellant), operated and controlled an underground longwall coal mine. It was convicted under s 8(1) of the Occupational Health and Safety Act 2000 (NSW) (the Act) of a charge that it failed to ensure the health, safety and welfare at work of its employee, Mr Steven McNab, who was found at the appellant’s mine crushed beneath a moving roof support.

Longwall mining is a form of underground mining where a block of coal is mined in shears. The operation is designed to remove essentially all the coal from the block and allow to roof to collapse into the cavity behind, whilst maintaining a safe working space for miners along the coalface. The roof between the cavity and the coalface needs to be supported for a period of time. Roof supports, which slowly advance towards the face, supply this pressure to control the roof fall. Coal is cut by a machine called a shearer, operated by two miners at any one time. As the shearer removes coal, the roof supports move into the newly created cavity. At the appellant’s mine, this movement was automated; if the shearer stopped, the roof supports continued to advance until there was a predefined distance between the last advanced support and the shearer. The roof supports could be stopped manually at any time by the operation of roof support controls or activation of an emergency switch.

On 23 April 2010, Mr McNab was one of the shearer operators. He was operating from a standing or walking position behind the shearer, in front of the last advanced roof support. At one point, a co-worker noticed Mr McNab on the ground and caused the shearer to be stopped. Mr McNab was found with his upper body lying on the roof support and his lower body trapped under the base of the roof support.

The appellant was convicted in the District Court on the basis that it failed to employ a Support Advance Controller (SAC) to monitor the advancing roof supports and observe the operator, so that if the operator became incapacitated, the SAC could activate the emergency stop button. The relevant risk to Mr McNab’s health, welfare and safety was the risk of being crushed, when incapacitated, by the powered roof supports as they automatically advanced towards the coalface. The trial judge imposed a penalty of $50 000 and awarded the prosecutor 20% of her costs. The appellant appealed against conviction and the Attorney General and prosecutor appealed against the penalty and costs orders.

The Attorney General and prosecutor also challenged the trial judge’s finding that the appellant’s failure to ensure that tilt switches were installed, which would detect if an operator fell over, was not found to amount to a contravention of s 8(1) of the Act.

The issues on appeal were:

1. Whether the appellant’s failure to take steps that would only minimise or manage the risk, as opposed to eliminating the risk, could constitute a breach of duty under s 8(1) of the Act.

2. Whether the omitted measure would have ensured the employee’s health, welfare and safety when the risk already existed at the point of the employee becoming incapacitated.

3. Whether the causal nexus between the appellant’s failure to employ an SAC and the employee being exposed to the risk of injury had been made out.

4. Whether, upon determining that the trial judge erred in finding the charge proved on the basis of one particularised omission, an appellate court, in an appeal under s 5AA of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) can dismiss the appeal on the basis that the charge should have been found proved on a different particularised omission.

5. Whether an appellate court has the power to order a retrial under s 5AA of the Criminal Appeal Act.

6. Whether the trial judge failed to consider the objective seriousness of the offence in sentencing the appellant.

7. Whether the trial judge erred by measuring the quantum of the appellant’s fine against the extent of the employee’s injury.

8. Whether the trial judge failed to include in the appellant’s fine components for specific and general deterrence.

9. Whether the trial judge wrongly took into account the appellant’s remorse in sentencing.

10. Whether the court should re-sentence.

11. Whether the trial judge erred in apportioning the award of the prosecutor’s costs at 20%.

The Court held (Bathurst CJ, Hidden and Davies JJ) dismissing the conviction appeal and allowing the penalty and costs appeal:

Conviction Appeal

Whether particularised measure must eliminate risk

(i) A failure to take steps which are necessary but insufficient to ensure safety, or which limit the risk to the employee without entirely eliminating it, can constitute a breach of s 8(1) of the Act: [108]-[113] (Bathurst CJ, Hidden and Davies JJ).

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94; The GEO Group Australian Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 150 considered

Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 applied

(ii) While there is no doubt the duty of an employer under s 8(1) of the Act is absolute, the relevant question when assessing the effect of a particularised measure is what can constitute breach: [106]-[107], [116] (Bathurst CJ, Hidden and Davies JJ).

Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149; WorkCover Authority of New South Wales v The Crown in Right of the State of NSW (Police Service of NSW) No 2 (2001) 104 IR 268; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321; ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; The GEO Group Australian Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 150 applied

Whether employee exposed to risk before intervention of SAC

(i) The duty under s 8(1) of the Act can be breached by the failure to take action to prevent a risk, to which an employee is already exposed, from crystallising: [124]-[125] (Bathurst CJ, Hidden and Davies JJ).

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 considered

Causal Nexus

(i) In determining causation under s 8(1) of the Act, the relevant question is whether the particularised omission was a substantial and significant cause of the risk to the employee. The inquiry is not concerned with whether the omission was the cause of the injury but rather whether there was a causal relationship between the omission and the risk: [130] (Bathurst CJ, Hidden and Davies JJ).

Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 applied

(ii) The question of causation is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter and in light of the purpose to which the question is directed and the objects of the Act: [128]-[129] (Bathurst CJ, Hidden and Davies JJ).

Royall v The Queen [1991] HCA 27; 172 CLR 378; Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 applied

Power of appellate court in an appeal under s 5AA Criminal Appeal Act

(i) Obiter: It is doubtful that an appellate court can dismiss an appeal under s 5AA of the Criminal Appeal Act where guilt is found on a separate basis, which was expressly rejected by the trial judge, particularly if it involves making contrary findings of fact: [100]-[102] (Bathurst CJ, Hidden and Davies JJ).

Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 293; Conway v The Queen [2002] HCA 2; 209 CLR 509 distinguished

Weiss v R [2005] HCA 81; 224 CLR 300; AK v State of Western Australia [2008] HCA 8; 232 CLR 438; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 applied

(ii) Obiter: The power to order a new trial cannot be found as a matter of implication in s 5AA of the Criminal Appeal Act: [103]-[104] (Bathurst CJ, Hidden and Davies JJ).

Gilmour v Environment Protection Authority [2002] NSWCCA 399 distinguished

Penalty Appeal

Objective Seriousness

(i) The trial judge did not fail to have regard to the fact that the risk was known to the appellant. However, the trial judge’s failure to consider in sentencing his own contrary findings on liability show that he failed to have regard to relevant considerations: [160], [162]-[164] (Bathurst CJ, Hidden and Davies JJ).

R v KB; R v JL; R v RJB [2011] NSWCCA 190 applied

(ii) The trial judge did not fail to have regard to matters that were necessarily considered in finding a conviction: [161] (Bathurst CJ, Hidden and Davies JJ).

Quantum of Fine and Extent of Injury

(i) The trial judge did not hold that the penalty must be commensurate with the degree of the employee’s suffering. The extent of harm was a relevant matter in assessing objective seriousness and was properly referred to when considering whether a discharge under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate: [170]-[171] (Bathurst CJ, Hidden and Davies JJ).

Specific and General Deterrence

(i) The trial judge was bound to follow the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process unless there is indication of circumstances which have led to an exceptional course being adopted: [177]-[180] (Bathurst CJ, Hidden and Davies JJ).

Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610; R v Irvine; R v Dynamic Industries Pty Ltd; and R v Cini [2009] VSCA 239; 25 VR 75 applied

(ii) A court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent: [182] (Bathurst CJ, Hidden and Davies JJ).

Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610 applied

Remorse

(i) Offering rehabilitation and reparation, while commendable, does not constitute remorse for the purposes of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For remorse to be shown, the offender must accept responsibility for its actions: [190]-[191] (Bathurst CJ, Hidden and Davies JJ).

Whether Court should resentence

(i) The residual discretion should not be exercised in a situation where this was one of the first appeals from the District Court under the Act and there was a need to express approval of Industrial Commission authority on sentencing: [201] (Bathurst CJ, Hidden and Davies JJ).

MB v Attorney General for NSW [2015] HCA 9 applied

Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Baxter v R [2007] NSWCCA 237; 172 A Crim R 284; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v DH & AH [2014] NSWCCA 326; R v KB; R v JL; R v RJB [2011] NSWCCA 190 considered

Costs Appeal

(i) The trial judge erred in taking into account the prosecutor’s costs of preparing the case for particulars that did not go to trial where those particulars were abandoned well before trial and it was unlikely costs were referable to that preparation: [222] (Bathurst CJ, Hidden and Davies JJ).

(ii) The trial judge erred in the assessment of costs by failing to take into account the sentence proceedings, in particular, the appellant’s unsuccessful submissions: [223] (Bathurst CJ, Hidden and Davies JJ).

(iii) The trial judge erred in apportioning costs on the basis that the prosecutor succeeded on only one of five particularised omissions: [224] (Bathurst CJ, Hidden and Davies JJ).

James v Surf Rd Nominees Pty Ltd (No 2) [2005] NSWCA 296; Latoudis v Casey [1990] HCA 59; 170 CLR 534; Morrison v Defence Maritime Services Ltd [2007] NSWLEC 552; 156 LGERA 365 applied

(iv) As the prosecutor succeeded on the key issue in the trial, she should not be deprived of costs unless there was material to justify a contrary order being made: [225] (Bathurst CJ, Hidden and Davies JJ).

Milne v Attorney-General for the State of Tasmania [1956] HCA 48; 95 CLR 460 applied

(v) The trial judge erred in taking into account the fact that whether the particularised measure was reasonably practicable was never a live issue when in fact it was contested by the appellant and was relevant to the key issue at trial: [226]-[227] (Bathurst CJ, Hidden and Davies JJ).

(vi) The 20% apportionment figure was reached either by the erroneous methods identified or by matters not identified, in either case, error was established: [228]-[229] (Bathurst CJ, Hidden and Davies JJ).

Judgment

1. THE COURT: This is an appeal from a decision of Curtis DCJ (the trial judge) convicting the appellant, Bulga Underground Operations Pty Ltd (the appellant), of a charge that it failed to ensure the health, safety and welfare at work of its employee, Mr Steven McNab, in contravention of s 8(1) of the Occupational Health and Safety Act 2000 (NSW) (the Act): Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186 (Trial Judgment). The trial judge imposed a penalty of $50,000 in respect of the offence.

2. The appellant has appealed against its conviction, whilst the Attorney General has appealed under s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against the sentence imposed by the trial judge. In addition, the Attorney General has appealed, and the prosecutor has sought leave to appeal, against the order for costs made by the trial judge.

The factual background

3. The incident which gave rise to the charge in question occurred in the evening of 23 April 2010 at an underground longwall coal mine, the Beltana Mine, operated and controlled by the appellant (the mine), when an employee of the appellant, Mr Steven McNab, was crushed under the pontoon of a moving roof support.

3. In the Court below, the parties agreed on a statement of facts which described the mining operations and the circumstances in which the injury to Mr McNab appeared to have occurred. The summary below is based on the agreed statement of facts and findings made by the trial judge, which were not disputed on appeal.

4. Coal was mined at the mine by a method known as the “retreat longwall method of extraction” (longwall mining). Longwall mining is a form of underground mining where a block of coal is mined in shears. A longwall block (the coal that is being mined) is typically 3-4 kilometres long, 250-400 metres wide and 1.6-5 metres high.

5. The area of the block being mined is known as the longwall face. A typical longwall face at the mine was about 264 metres wide and between 2.8-3.2 metres high. The blocks are developed and mined sequentially. The production area of the block being mined is called a panel.

6. Longwall mining is designed to remove essentially all the coal from the block and allow the roof and overhanging rock to collapse into the void behind, whilst maintaining a safe working space along the face for the miners. The cavity behind the longwall is called the goaf.

7. The underground area of the mine comprises a roof and a floor whilst the sides or walls are called ribs. The block is formed by driving maingate roadways and tailgate roadways at each side and an install roadway and recovery roadway at each end, which connects the maingate and tailgate roadways.

8. The coal is cut from the coalface by a machine called a shearer, typically comprising the main body (housing the electrical functions), tractive motive units to move the shearer along the coalface and a pumping unit to power hydraulic functions.

9. At the mine, a ranging arm was fitted at each end of the shearer, on which there were mounted cutting drums fitted with cutting tools, which were used to cut the coal. The two cutting drums were known as the maingate drum and the tailgate drum. Depending on the way the shearer was moving across the coalface, the drums were referred to as the lead drum and the trailing drum. The lead drum cut the majority of the coal whilst the tracking drum cut the remainder and loaded coal from the floor onto an armoured face conveyer (AFC). The shearer moved over the AFC by the use of a chainless haulage system. A pan line, consisting of a continuous line of articulated metal box sections, supported both the track along which the shearer ran and the AFC, which carried the coal away. Each unit of the pan line was connected to the opposite roof support by a relay bar which passed between the two pontoons of the roof support.

10. The mine made use of a number of roof supports – steel canopies supported by large hydraulic jacks (chocks). The top of the roof support was called a canopy. Attached to the bottom of each leg of the roof support was a pontoon which sat on the floor of the longwall and performed the function of a base. A walkway approximately 280 millimetres above floor level was formed by the toes of the pontoon of the roof support.

11. For longwall mining to be undertaken, the roof between the goaf side of the support canopy and the vertical coalface needs to be supported for a period of time, whilst the area where the mining has taken place, the goaf, needs to collapse. A risk exists that unless the roof is supported, it will fall in. The roof supports provide the support by applying pressure to control the roof fall. As the roof supports advance towards the face, the roof behind them is intended to fall, forming the goaf. The support provided allows the shearer to move along the face of the AFC.

12. At the mine, the roof supports advanced in a motion called “Lower, Advance, Set” (LAS). The canopy would lower off the roof, the support being advanced by pulling itself along a relay bar which was attached to the AFC and then the canopy would rise, setting itself against the roof to take the weight off the roof. The movement of the relay bar was controlled by hydraulics.

13. The shearer could be operated manually or through automation. The automation could be overridden by the shearer operators so they could manually control the operation of the cutting arms and the shearer speed. Two miners operated the shearer at any one time, one operating the maingate drum and the other the tailgate drum.

14. As the shearer removed the coal, the roof supports moved into the newly created cavity and the AFC was pushed over towards the newly cut face. The relay bar moved the AFC forward, opening a gap between the lines of support and the spillplate – a set of panels connected to each other which acted as a fence between the shearer and the walkways where the operators were located.

15. Whilst operating the shearer, the operators walked along the walkway, comprising the pontoon of the roof support and also the ground between the toes of the pontoon and the AFC after it had been pushed forward, as described above, which effectively widened the walkway. The operators were separated from the shearer by the spillplate.

16. The advance of the roof support and the push of the AFC were automated. Generally, their movements were governed by the position of the shearer. If the shearer stopped, the roof supports would continue to advance in sequence until the last advanced support was at the beginning of a predefined number of supports from where the shearer had stopped. However, the roof supports could be stopped manually at any time by operation of the roof support controls or activation of an emergency switch.

17. As the shearer moved forward from the last advanced support, an electronic device signalled the next roof support to advance so as to maintain a constant headway. Before the signal to advance was sent, the shearer would send a preliminary signal to the roof support prior to its advance. That signal triggered a buzzer and a light on the roof support to warn workers of its impending advance. These warnings continued as the support advanced slowly, taking about 10 seconds to reach its allocated position.

18. On the night in question, Mr McNab and a Mr Anthony Chard were the two shearer operators. Mr McNab was operating the maingate cutting drum whilst Mr Chard was operating the tailgate drum. The maingate drum was the trailing drum on the longwall shearer whilst it was hauling towards the tailgate. Mr McNab operated the drum from a standing or walking position behind the maingate drum, in front of the last advanced support. As the trailing drum advanced towards the tailgate, Mr McNab followed. The area in which he was walking was described in the appellant’s safe work procedures as a safe standing zone, away from the cutting drum and flyrock. Flyrock, as its name implies, is rock flung over the side of the AFC onto the walkway. Large pieces, “surfboards”, would fall from the top of the AFC onto the walkway, whilst smaller pieces could travel greater distances.

19. The shearer was cutting from maingate to tailgate when Mr Chard noticed a broken shear pin. Mr McNab and Mr Chard stopped the shearer to replace the pin. This was done with the assistance of a Mr Alan Collins, the person controlling the roof supports.

20. After repairing the pin, Mr Chard, Mr McNab and Mr Collins returned to their respective tasks. Mr Chard started the shearer moving again. At one point Mr Collins turned around and noticed Mr McNab on the ground. He began to signal Mr Chard. Mr Chard continued to cut coal but on glancing over to look at Mr McNab he saw a lamp being waved to him and, realising something was wrong, turned off the shearer and ran towards Mr McNab.

21. Mr McNab was found with his upper body lying on the roof support up against the spillplate. There was a flat piece of stone lying across his upper legs and his lower legs were trapped under the tailgate pontoon of a roof support.

22. Mr McNab has been unable to describe how he came to be in that position.

The charge

24. As we indicated, the charge against the appellant was that, being an employer, it failed to ensure the health, safety and welfare at work of Mr McNab, its employee. The date of the offence was stated to be 23 April 2010.

25. The particulars of the charge were as follows:

“The risk

1.   The risk was the risk to Steven McNab, an employee of the defendant who operated the longwall shearer (shearer) in the Mine of:

a.   being crushed by the powered roof support (chock) used in the defendant’s system of work as they automatically advanced towards the coalface; and /or

b.   slipping and/or falling in the walkway behind the shearer where the chocks were automatically advancing towards the coalface; and/or

c.   being struck by pieces of rock or coal material projected towards employees by the cutting head of the shearer; and/or

d.   being struck by pieces of rock or coal material otherwise dislodged by the operation of the shearer.

The failures of the defendant

2.   The defendant failed to ensure that there was a safe walking and standing zone for the operator of the shearer as he followed along behind the shearer as it was cutting so that the operator was in a position of safety, in that if he did fall the advancing chocks would not move onto and crush him.

3.   The defendant failed to ensure that the sequential operation of the shearer instigated roof supports was stopped in the event that the operator fell over or otherwise became disabled by:

a.   ensuring that tilt switches which detected the angle of inclination of the remote control being carried by the operator were installed and used so that if the angle of inclination of the remote tilted beyond 45° relative to the horizontal the shearer would stop operating and alert the leading drum shearer operator that there may be a danger to the other operator so that he could immediately stop the advance of the chocks.

b.   ensuring that a timeout function switch or control was installed and used on the remote control being carried by the operator so that if there was no activity detected the shearer would stop operating and alert the leading drum shearer operator that there may be a danger to the other operator so that he could immediately stop the advance of the chocks.

c.   by having another person to monitor the advancing chocks and to observe the operator so that if the operator fell over or otherwise became disabled that other person could activate the emergency stop button for the advancing chocks thus prevent the chocks from moving onto and crushing the operator.

4.   The defendant failed to ensure that the operator of the shearer was protected from being struck by pieces of rock or coal projected by the operation of the shearer by reducing the speed at which the shearer was being advanced and therefore lessen the potential for pieces of rock or coal being projected by the operation of the shearer.

Because of the defendant’s failures Steven McNab was placed at risk as to his health and safety, and he was injured when he was crushed by advancing chocks.”

26. There are a number of matters that must be noted about these particulars. First, unlike the alleged risks, the alleged failures were not pleaded as alternatives. Indeed, even assuming particulars (2), (3) and (4) could be classified as separate breaches of the duty imposed by s 8(1)(a), it is difficult to reach the same conclusion concerning subpars (a), (b) and (c) of par (3). On one reading, what was alleged was that the appellant failed to ensure the safety of its employees by not taking all the steps referred to in par 3(a), (b) and (c) of the particulars rather than any one of them. In that context, had the appellant been able to establish that one or either of the steps referred to in those subparagraphs were not practical by reason of s 28 of the Act (see below at [33]), that would have provided a defence to the charge so far as it relied on the failures particularised in par (3).

27. The trial judge found that a contravention of s 8(1) of the Act occurred through the appellant’s failure to implement the procedures set out in par 3(c) of the particulars. For the purpose of the appeal, the only relevant failures are those contained in that particular (the observer particular) and in the particular contained in par 3(a) (the tilt switch particular).

28. Having regard to what we have said in par [26], on one view of the matter, the approach of the trial judge was not available because of the manner in which the case was particularised. However, the parties were content to proceed both at trial and on appeal on the basis that each of the subparagraphs of par (3) constituted a separate act or omission which could constitute a breach when the other elements of the offence were established.

The relevant legislation

29. Before referring to the reasoning of the trial judge and the parties’ submissions, it is convenient to set out the relevant legislation. Subject to one matter, the legislation is as it existed at the time of the alleged offence.

30. Section 3 set out the objects of the Act:

“3    Objects

The objects of this Act are as follows:

(a)   to secure and promote the health, safety and welfare of people at work,

(b)   to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,

(c)   to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,

(d)   to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,

(e)   to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,

(f)   to develop and promote community awareness of occupational health and safety issues,

(g)   to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,

(h)   to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work.”

31. Section 8 of the Act imposed the following duties on an employer:

“8   Duties of employers

(1)   Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a)   ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b)   ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c)   ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d)   providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e)   providing adequate facilities for the welfare of the employees at work.

(2)   Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

Note: See section 12 for the penalty for an offence against this section and other provisions of this Division. Division 4 makes ancillary provision with respect to those offences, including:

(a)   section 26 – liability of directors and managers of corporations,

(b)   section 28 – defence that compliance not reasonably practicable etc.

See also Division 2 for duty of employer to consult employees.”

32. Section 12 provided that a contravention was an offence and prescribed penalties:

“12   Penalty for offence against this Division

A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty:

(a)   in the case of a corporation (being a previous offender)—7,500 penalty units, or

(b)   in the case of a corporation (not being a previous offender)—5,000 penalty units, or

(c)   in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or

(d)   in the case of an individual (not being a previous offender)—500 penalty units.

Note. Section 17 of the Crimes (Sentencing Procedure) Act 1999 provides, at the enactment of this Act, that the value of a penalty unit is $110. Accordingly, the above maximum penalties are as follows:

(a)   in the case of a corporation (being a previous offender)—$825,000, or

(b)   in the case of a corporation (not being a previous offender)—$550,000, or

(c)   in the case of an individual (being a previous offender)—$82,500 or imprisonment for 2 years, or both, or

(d)   in the case of an individual (not being a previous offender)—$55,000.”

33. Section 28 provided for a defence to a contravention. It was in the following terms:

“28   Defence

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a)   it was not reasonably practicable for the person to comply with the provision, or,

(b)   the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.”

34. Some reference was made to s 7A which was inserted into the Act by the Occupational Health and Safety Amendment Act 2011 (NSW) (the Amending Act). The Section was in the following terms:

“7A   The concept of ensuring health and safety

(1)   A duty imposed on a person by this Division (or by any other provision of or made under this Act) to ensure, so far as is reasonably practicable, health and safety requires the person:

(a)   to eliminate risks to health and safety so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

(2)   For the purposes of this Division (or of any such other provision), in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety, all relevant matters are to be taken into account and weighed up, including:

(a)   the likelihood of the hazard or the risk concerned occurring, and

(b)   the degree of harm that might result from the hazard or the risk, and

(c)   what the person concerned knows, or ought reasonably to know, about:

(i)   the hazard or the risk, and

(ii)   ways of eliminating or minimising the risk, and

(d)   the availability and suitability of ways to eliminate or minimise the risk, and

(e)   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

35. The same legislation amended s 8 of the Act by providing that the obligation in question was to ensure the health, safety and welfare of employees so far as reasonably practicable. Section 28 of the Act was repealed. The effect of these amendments was to require the prosecution to establish beyond reasonable doubt that matters alleged to be necessary to ensure the health, safety and welfare of employees were reasonably practicable, as distinct from making that proviso a defence to be established by the defendant on the balance of probabilities.

36. Some reliance was placed on the Occupational Health and Safety Regulation 2001 (NSW) (the Regulation), which came into force on the date of assent to the Act.

37. The relevant clauses of the Regulation were cll 4, 5, 6 and 11. They were in the following terms:

“4   Application of Regulation

(1)   This Regulation applies to all places of work (including all mining workplaces and coal workplaces), except as provided by this Regulation.

(2)   Chapter 5 applies to plant affecting public safety, whether or not the plant is at a place of work or for use at work.

(3), (4)   (Repealed)

Note. Part 2 of the Act imposes general obligations on employers and other persons and creates offences for breaches of those obligations. This Regulation imposes additional obligations on those persons and on others. Section 29 of the Act provides that compliance with the regulations is not in itself a defence in any proceedings for an offence against Part 2 of the Act (subject to any regulations that modify Part 2), but also provides that a relevant contravention of the regulations is admissible in evidence in any proceedings for an offence against Part 2.

This Regulation applies to all mining workplaces and coal workplaces, except where specific provisions are expressed to not apply or to apply with modifications. In accordance with section 133 of the Act, clause 358 provides that references in certain provisions of the Act to WorkCover, in connection with the application of the provisions to a mining workplace or a coal workplace, are taken to be references to the Department of Industry and Investment (then known as the Department of Primary Industries), the Director-General of that Department (called the “Department Head (Mining)” in this Regulation or certain inspectors appointed in connection with mining workplaces or coal workplaces.

5   Meaning of “control” of risks

(1)   For the purposes of this Regulation, an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) is an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable:

(a)   firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk,

(b)   secondly, isolating the hazard from the person put at risk,

(c)   thirdly, minimising the risk by engineering means,

(d)   fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information),

(e)   fifthly, using personal protective equipment.

(2)   A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is sufficient for that purpose.

(3)   Any obligation in this Regulation to control a risk by taking specific risk control measures, or by taking specific risk control measures in a particular order, is in addition to the obligations referred to in subclauses (1) and (2).

Note. For an example in which the above clause applies, see clause 11 (general obligation of employers and self-employed persons to eliminate risks or, if not reasonably practicable to do so, to control the risk).

6   Application of provisions providing for alternative duties if primary duty not reasonably practicable

(1)   This clause applies to any provision of this Regulation that imposes a duty, such as a duty to eliminate a risk, on a person (the primary duty), but provides that if it is not reasonably practicable to comply with that duty, the person is required to comply with another duty, such as a duty to control the risk (the alternative duty).

Note. See duties to eliminate risks or, if that is not reasonably practicable, to control the risk (clause 11). See also particular alternative control measures in clause 5.

(2)   For the purposes of this Regulation, the primary duty of a person is not replaced by the alternative duty unless the person can establish that it is not reasonably practicable to comply with the primary duty.

Note. Section 28 of the Act provides a defence if the person can establish that it is not reasonably practicable to comply with the alternative duty.

…

11   Employer to eliminate or control risks

(1)   Subject to subclause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of:

(a)   any employee of the employer, or

(b)   any other person legally at the employer’s place of work,

or both, that arises from the conduct of the employer’s undertaking.

(2)   If it is not reasonably practicable to eliminate the risk, the employer must control the risk.

(3)   An employer must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health and safety are properly used and maintained.

(4), (5)   (Repealed)

Maximum penalty: Level 4.

Note. An employer must also comply with any specific risk control measures required by this Regulation. In particular see Parts 4.3, 4.4, 5.4 and 6.4 and Chapters 7 and 8. The Regulation (for example, in Part 4.2 and in Chapter 5) also imposes risk control requirements on other persons, such as controllers of places of work, designers and manufacturers of plant and so on. Clause 5 sets out the order of control measures to be taken if it is not reasonably practicable to eliminate a risk.”

The judgment on conviction

38. The trial judge found that Mr McNab suffered severe injuries when, after falling to the ground, his body was crushed between the toe of an advancing roof support and the side of the AFC: Trial Judgment at [2]. That was not disputed. The trial judge also described the system of work which was adopted in a manner basically similar to the agreed statement of facts and in a way which was not criticised on the appeal: at [6]-[27].

39. The trial judge, for reasons unexplained in his judgment, set out the alleged failures of the appellant in somewhat different terms to the failures particularised in the charge: at [29]. However, nothing turns on this as he did deal with the two alleged failures the subject of the appeal, namely those in subpars 3(a) and 3(c) of the particulars. The other alleged failures considered by him were not found to amount to a contravention of s 8 of the Act. These findings were not contested on the appeal.

40. The trial judge noted the submission by senior counsel for the appellant that it was a necessary element of the prosecution case to prove beyond reasonable doubt that the preventative measures pleaded would have absolutely eliminated the risk and that it was not enough to show particular measures would have mitigated the risk of an injury occurring: at [32]-[38].

41. The trial judge accepted that each of the preventative measures with which he dealt would not have “eliminated the possibility of the risk pleaded in the summons coming home”: at [54]. In relation to the tilt switch particular he found that if such a switch was operative on the shearer operator’s control, the shearer would automatically stop if the operator fell to the ground: at [48]. However, he found the measure was incapable of eliminating all risk of being crushed by an advancing roof support because a roof support which is already primed by the signal from the shearer would continue to move even after the shearer was stopped. He concluded that if the operator fell in front of one of those supports, the tilt switch would not save him: at [49].

42. So far as the observer particular was concerned, the trial judge observed that subsequent to the accident, the appellant employed an additional crew member as a Support Advance Controller (SAC) whose sole function was to observe the drum controller and manually stop advancement of the roof supports if he saw there was a danger. The trial judge noted that every roof support control had a button that, if pressed by the SAC, would release hydraulic pressure in the system and instantaneously prevent the supports advancing: at [50].

43. Notwithstanding, the trial judge found that because such an SAC must be attentive, not only to the safety of the two drum operators, both of whom may not be concurrently in his sight, but also to his own safety, there remained a possibility that the drum operator could fall into the path of advancing roof supports without the SAC reacting in time to save him: at [51].

44. However, the trial judge seemed to reject the submission that s 8(1) was not contravened by the failure to adopt a measure that did not completely eliminate the risk but only mitigated it. He noted a concession by the appellant’s counsel that the argument that the duty was not breached in those circumstances was novel and stated without elaboration that it was inappropriate that an inferior court should adopt such a fundamental change to the interpretation of s 8(1): at [55].

45. The trial judge found that the circumstances in which Mr McNab came to be injured were foreseeable to a reasonable person standing in the place of the appellant: at [100]. His conclusion that the appellant was guilty of the offence charged was founded solely on the observer particular, which was expressed in the following terms:

“104   The defendant failed to mitigate the foreseeable risk by taking the reasonably practicable measure of employing the services of an additional miner in the crew, whose sole task was to observe the drum operators and stop the advancement of roof supports if the drum operator became disabled.”

The grounds of appeal

46. The appellant relied on the following grounds of appeal:

“1   The primary judge erred in failing to find that the Defendant was not guilty of the offence charged in the absence of proof that the omission he found the Defendant to have committed – to have a person to monitor the advancing chocks and to observe the operator so that, if the operator fell over or otherwise became disabled, that person could activate the emergency stop button for the advancing chocks thus prevent the chocks from moving onto and crushing the operator -

(a)   was of conduct that, had the omission not been committed, would have prevented Mr McNab from being exposed to a risk of being crushed whilst incapacitated, and thereby would have ensured his health and safety;

(b) was a contravention of the duty imposed by s 8(1) Occupational Health and Safety Act 2000.

2   The primary judge erred and committed jurisdictional error in declining to exercise his jurisdiction to determine a charge of an offence against the Occupational Health and Safety Act 2000 according to law.

3(a)   The primary judge erred and committed jurisdictional error in failing to determine the question of whether the omitted measure of employing the support advance controller would have ensured Mr McNab’s health and safety given the fact that the support advance controller could not have intervened until Mr McNab was already at risk of being crushed when he fell incapacitated in front of advancing powered roof supports.

(b)   The primary judge erred in failing to find that the Appellant’s omission to have a Support Advance Controller would not have prevented Mr McNab from being exposed to the risk whilst incapacitated of being crushed by the advancing supports as they automatically advanced towards the coalface.

4   The primary judge erred in that he failed to find that there was a causal nexus between -

(a)   the Defendant’s omission to have another person to monitor the advancing chocks and to observe the operator so that if the operator fell over or otherwise became disabled that other person could activate the emergency stop button for the advancing chocks thus prevent the chocks from moving onto and crushing the operator (‘omission to have a Support Advance Controller’), and

(b)   the risk to Mr McNab on 23 April 2010 whilst incapacitated of being crushed by the advancing supports as they automatically advanced towards the coalface.”

47. By what was described as a notice of contention, the Attorney General and the prosecutor (described in the document as the first and second appellants), challenged the trial judge’s conclusion on the tilt switch particular. The notice of contention raised the following grounds:

“1.   The finding of Judge Curtis that particular 3(a) of the Amended Summons was a measure that was incapable of eliminating all risk of being crushed by an advancing roof support, because those roof supports already primed by the signal from the shearer continue to advance even after the shearer is stopped and if an operator fell in front of one of these supports the tilt switch would not save him was wrong; and

2.   That Judge Curtis should have found that if the tilt switch mechanism in the remote had been activated and the remote fell through an angle of inclination of 45 degrees the shearer would stop operating and the leading drum shearer operator would be alerted that there may be a danger to the other operator so that he could immediately stop the advance of the chocks so as to ensure the safety of the tail drum operator.”

The parties’ submissions on conviction

48. The parties’ written submissions were lengthy and in the case of the appellant, with respect, prolix. Notwithstanding the appeal involved questions of law and there was virtually no dispute as to the primary facts, the appellant’s written submissions in chief occupied some 84 pages, whilst those in reply and in opposition to the notice of contention occupied a further 36 pages. To the extent to which we have not referred to any particular portion of these submissions, we have taken them into account in reaching the conclusions to which we have arrived.

The appellant’s submissions on conviction

49. The appellant submitted that the appeal brought pursuant to s 5AA of the Criminal Appeal Act was an appeal for error and as such, the appeal must be allowed if error is established and the respondent fails to satisfy the Court that no substantial miscarriage of justice has occurred.

50. The appellant referred to the decision of the Court of Appeal in Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; 78 NSWLR 94 (Thiess) in which it was held that the word “risk” in s 8(2) of the Act referred to the possibility of danger, whilst the word “exposed” referred to a person who was sufficiently proximate to the risk at the relevant time. It submitted that the same approach should be adopted in respect to s 8(1), namely relevant detriment to health and safety occurred when an employee was exposed to the possibility of danger.

51. The appellant submitted the offence was one of absolute liability subject to the defence contained in s 28 of the Act.

52. The appellant emphasised that the words “to ensure” in s 8(1) of the Act have been held to mean to secure, guarantee, make certain and to obviate risk. It submitted that “more than one judge of the Industrial Court has specifically abjured the notion that the duty to ensure health and safety can be satisfied by minimising the risk to which employees are exposed”. It referred in that context to the decision of the Full Court of the Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 (Haynes) at 158-159 where it was stated that the general duties created by ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (the 1983 Act) were directed at obviating risk to safety at the workplace and to WorkCover Authorityof New South Wales v The Crown in Right of the State of NSW (Police Service of NSW) No 2 (2001) 104 IR 268 (WorkCover v Police) at [20] where Hungerford J stated that the duty was absolute and that “ensure” was to be construed as meaning guarantee, secure and make certain. Sections 15 and 16 of the 1983 Act were in identical terms to ss 8 and 9 of the Act.

53. The appellant submitted that a similar approach had been taken by the Victorian Court of Appeal to equivalent legislation in Victoria: R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; 14 VR 321 at [25]; ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409 at [15], [19].

54. The appellant also submitted this approach was consistent with the construction placed on ss 15 and 16 of the 1983 Act by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (Kirk) at [11]-[12] and the Court of Appeal in The GEO Group Australian Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 150 (GEO Group) at [15], [19].

55. In relation to Ground 1 of the grounds of appeal, the appellant submitted the charges must identify the nature of the alleged offending, that being an essential factual ingredient of the offence. It submitted the duty imposed was a duty which required the employer to obviate risk not just reduce the gravity of the risk or reduce exposure to the risk. On the submission of the appellant, it followed that, because criminal liability cannot attach to an omission in the absence of a correlative duty, for an employer to contravene s 8(1) by omission, the employer must fail to ensure health and safety, not just manage risk or exposure to risk. It argued that cases in the Industrial Court which reached a contrary conclusion were incorrectly decided.

56. The appellant also submitted that the proposition for which it contended was not inconsistent with the objects of the legislation set out in s 3 of the Act. It submitted s 8 was designed to promote the objects in s 3(a), (b), (c) and part of (e) – that part concerned with the elimination of risk. The fact that s 3(e) stated that a further object was to ensure risks were controlled did not mean, according to the appellant, that the “clear language of s 8(1), requiring that employees’ health and safety be ensured, was to be tortured into a meaning which the words did not convey”. It claimed the statutory obligation of controlling risk was achieved through the Regulation, particularly in those clauses which we have set out above at [37].

57. The appellant also referred to the different penalties imposed for a breach of the Act and breaches of the Regulation. It submitted the lesser penalties for breach of the Regulation demonstrated that s 8(1) only criminalised the absence of measures which would ensure health and safety, whilst the Regulation penalised a failure to control or manage the risk. In that context, the appellant submitted that the Regulation could be used as an aid to the interpretation of the Act, submitting the Act and Regulation formed part of a single scheme: Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at [5]; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19].

58. The appellant placed reliance on the Amending Act pursuant to which s 7A was inserted. It submitted that having regard to the modification of the duties imposed by ss 8 and 9, the insertion of s 7A and the repeal of the “not reasonably practical” defence, a major purpose of the Amending Act was to dilute the content of ensuring against risk. It submitted that, approaching the use of the Amending Act in the construction of the Act as it previously existed with due caution, the amendment made it plain that the content of the duty before the amendment was to obviate risk in the workplace. In the circumstances, it submitted there was no duty imposed to minimise risk. Furthermore, it contended that the clear words of the section could not be read contrary to their plain meaning by the adoption of a purposive approach.

59. The appellant submitted that the finding of the trial judge was that the appointment of an SAC would not eliminate the risk to a person in the position of Mr McNab. It submitted that, at its highest, the finding was that the employment of an SAC was a reasonable response to the risk of being crushed by an advancing support and the appellant failed to mitigate the risk by appointing an observer. It submitted that the trial judge found that the risk would not be eliminated by the employment of an observer due to a number of factors, in particular, the possibility the observer may not react in time, may not be paying attention or may be careless. The appellant maintained that this conclusion was justified by the evidence, specifically, evidence demonstrating that miners walking along the longwall had to pay attention to their own safety.

60. The appellant contended that, as a matter of language, the duty did not extend to minimising and controlling risk as distinct from eliminating risk. It submitted minimising and controlling risk did not guarantee safety and that words such as minimising and controlling did not appear in s 8(1). The appellant argued the Second Reading Speech to the Act made it clear that the legislation replacing the 1983 Act adopted a risk management approach to workplace safety and that the directions to control risk were to be imposed by the Regulation rather than the Act.

49. At the hearing, senior counsel for the appellant placed particular emphasis on what he described as the hierarchy of controls in the Act and Regulation. He submitted the Regulation contained an obligation to manage risk to the lowest level reasonably practical.

50. The appellant summarised its submission on this ground as follows. First, the Industrial Court decisions holding that s 8(1) is contravened where a measure is not taken which would not have eliminated the risk but only controlled it, are plainly wrong. Second, the charge is not satisfied by proof of an omission to take a measure, which the prosecution has not proved would have ensured the employees’ health or safety. Third, the judge erred in finding the offence charged proved without the respondent proving that the omission contended for would have ensured Mr McNab’s safety and accordingly, that the omission breached the duty imposed.

51. The appellant also submitted the failures identified above constituted jurisdictional error.

52. So far as Ground 3 was concerned, the appellant submitted the facts showed that as soon as Mr McNab fell incapacitated in front of the advancing roof supports he was exposed to being crushed by the supports, immediately behind him as it advanced, closing the gap between them and the AFC.

53. The appellant submitted that at the trial, it had raised the point that on the application of the law as stated in Thiess, Mr McNab had been exposed to the risk before the SAC could do anything. It submitted the trial judge failed to deal with this submission and that this was an error of law.

54. The appellant characterised s 8(1) as a result offence, the conduct being the act or omissions and the result being the detriment to the employee’s safety. It submitted that Mr McNab had been exposed to the risk the minute he fell incapacitated in front of the roof supports, at which point the offence charged was complete. It pointed out the SAC could not do anything until he observed a person in the position of Mr McNab was in danger and thus could not have prevented him being put at risk. It followed that the failure to engage an SAC could not constitute a contravention of s 8(1) of the Act.

55. Senior counsel for the appellant also submitted that it was incorrect to construe the section as providing that a contravention only occurred if it could be established beyond reasonable doubt that, if an observer was present, the particular injury would have been avoided. He submitted, relying on Thiess, that what needed to be guaranteed against was the possibility of danger and where, as in the present case, as soon as the victim fell he was exposed to the risk of being crushed, there was nothing a monitor could do to avoid that risk, all he or she could do was manage the risk. Senior counsel for the appellant submitted that not only was the approach consistent with Thiess but also with a number of cases in the Industrial Court which have held that it is not the actual occurrence of injury that is required for an offence to be established, but rather an exposure to the risk. He referred in that context to Haynes at 157; WorkCover Authority v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [18]-[19] and WorkCover v Police at [20].

56. In relation to Ground 4, the appellant submitted the trial judge made no finding that the risk to Mr McNab was caused by the failure to appoint a SAC. It submitted that the failure of the trial judge to consider whether the omission to appoint a SAC caused Mr McNab to be at risk of being crushed when he fell in front of the roof support was a failure to consider whether an element of the offence had been proved. It submitted that this failure was a miscarriage of justice.

57. Senior counsel for the appellant submitted that the trial judge gave no consideration to the question of whether a substantial or significant cause of the risk was the failure by the appellant to perform a duty required by the Act.

58. The appellant submitted it was impossible that the failure to appoint a controller caused the risk as Mr McNab was exposed to the risk before anything could be done about it.

The respondent’s submissions on conviction

71. The respondent pointed out that the appellant at trial had admitted the risks particularised, including being crushed by a roof support as it advanced towards the coalface. She submitted her case was that, had the measures particularised been implemented at the time Mr McNab was working, on the date the subject of the charge, Mr McNab would not have been in danger. She submitted the observer particular and the tilt switch particular would have eliminated or controlled the risk.

72. The respondent submitted that the gravamen of the case was at all times directed towards the risk of being crushed by advancing roof supports.

73. She referred to the finding by the trial judge to the effect there was a possibility an operator might fall in the path of an advancing roof support without the SAC reacting in time to save him and that the SAC may from time to time be careless, inadvertent or inattentive. She submitted it was important to note that the finding was that, absent slow reaction, inadvertence or inattentiveness, the measure would have eliminated or controlled the risk.

74. The respondent accepted that the obligation or rule of conduct prescribed by s 8(1) of the Act was to guarantee or secure employees’ safety. However, she submitted there was no common sense reason why controlling or managing a particular danger in a particular way would not guarantee safety in given circumstances. She submitted that that would inevitably depend upon the risk the subject of the charge as well as the measures proposed to address it.

75. The respondent submitted the essence of the appellant’s argument was that because the measure of having an observer may have been ineffective if the observer failed to notice a shearer operator becoming incapacitated, the measure could not guarantee safety. She submitted that it is possible that almost any measure designed to ensure safety might be capable of being compromised. The focus, it was contended, should be on the likelihood that the measure, when properly engaged, would ensure health and safety.

76. The respondent referred to the statement by Spigelman CJ in Thiess that the relevant risk for the purpose of s 8(1) was the possibility of danger. She submitted elimination or control of some but not all danger necessarily means the danger is eliminated in those respects by which it has been eliminated or controlled. It does not mean, she submitted, that the same danger continues to exist, far less that the same possibility of danger continues to exist.

77. The respondent submitted that the distinction between guaranteeing or securing safety and controlling or managing it is without foundation. She submitted the inquiry always is: would the measure have secured safety if implemented in the manner contemplated?

78. The respondent sought to derive support for the construction of s 8(1) contended for from s 28 of the Act. She submitted its effect was only to excuse a failure to secure safety to the extent it was not reasonably practical to conform to that obligation. It was argued that the defence under the Act necessarily meant the obligation of an employer under s 8(1) was to remove all possibilities of danger from the workplace except those which were subject to the statutory defence under s 28. In those circumstances, she submitted the Act was concerned with risk minimisation.

79. The respondent contended that there were three answers to the appellant’s submission on Ground 1. First, she submitted it did not have common sense to commend it in the scheme of an Act concerned with workplace health and safety. Second, she submitted that it assumed the SAC would perform his or her task in a negligent or “half-baked” way.

80. The third answer given by the respondent related to the tilt switch particular. She submitted that it was acknowledged that activation of the tilt switch would have prevented any roof supports not already primed from advancing. She submitted that if there had been an SAC present, the risk of being crushed by a primed roof support would also have been averted.

81. The respondent submitted that par [104] of the reasons of the trial judge had to be put in context. She contended that “ensure” in s 8(1) did not mean absolutely ensure in the sense of completely eliminate. She referred in that context to s 8(1)(d) relating to the provision of instructions or training, stating in effect that instructions or training cannot ensure safety. It was submitted the provision should be read to ensure health and safety subject to what was reasonably practical.

82. The respondent submitted the construction for which she contended was consistent with the construction placed on the provision by the Industrial Court referring to O’Sullivan v The Crown in Right of the State of NSW Department of Education and Training [2003] NSWIRComm 74; 125 IR 361 (O’Sullivan) at [140]-[141] on appeal The Crown in Right of the State of NSW (Department of Education and Training) v O’Sullivan [2005] NSWIRComm 198; 143 IR 57 at [42]; NSW Department of Education and Training and Department of Juvenile Justice v Cahill No 2 [2011] NSWIRComm 33; 210 IR 112 at [136] (which held that the decision in O’Sullivan was not affected by Kirk); Inspector Batty v Intercoast Refrigerated Transport [2012] NSWIRComm 55 at [100]-[103].

83. As an alternative, the respondent submitted that as a matter of fact the appointment of an SAC would have obviated the risk. She submitted the observer would have watched the shearer operator most exposed to being struck by flyrock, that is, the operator operating the trailing drum. She pointed out that the appellant’s workplace practices provided that Mr McNab was required not to stand in the area immediately opposite the trailing drum or in front of the roof support that would next be primed. In these circumstances, it was submitted that if there was an observer whose job it was to watch Mr McNab, the risk would be eliminated because as soon as Mr McNab fell over the observer would be able to turn off the power to the roof supports and thereby stop them moving. She submitted the trial judge erred in failing to consider this argument.

84. In relation to Ground 3, the respondent submitted the appellant failed to deal with the finding that Mr McNab was always at risk because if he fell over or was incapacitated, he could be crushed by the advancing supports. She again submitted that the risk could have been completely removed if a SAC was present.

85. The respondent emphasised that the risk identified by the prosecution was a risk of being crushed by a roof support as it advanced towards the coalface.

86. So far as Ground 4 was concerned, the respondent submitted that a fair reading of the judgment of the trial judge led to the conclusion that he did consider there was a causal link between the omission and Mr McNab’s exposure to risk. She submitted the relevant question was whether the appointment of an SAC would have eliminated or minimised the risk.

The submissions on the notice of contention

87. The respondent submitted that every shearer operator who gave evidence supported the tilt switch particular as a measure to ensure health and safety.

88. The respondent submitted that the finding of the trial judge on the tilt switch particular, namely that if the operator fell in front of an already primed support, the tilt switch would not save him, ignored the fact that Mr McNab was not working in front of supports already primed. She submitted that if the tilt switch was activated when Mr McNab fell in front of supports not primed, the risk would have been eliminated.

89. The respondent submitted it was never her case that the tilt switch, once activated, would stop the already primed roof supports. She submitted her case was that had the tilt switch facility used by Mr McNab been active, his falling or becoming incapacitated would have engaged the tilt switch, stopping the shearer immediately, which would have alerted the other operator who could have stopped the primed roof supports by hitting the emergency button.

90. The respondent framed this argument by stating that the tilt switch particular involved a two stage measure. First, the activation of the switch would stop the shearer; second, the fellow shearer operator, being alerted to the danger, would stop the primed roof support from moving. She submitted the trial judge erred in misunderstanding how the case was particularised.

91. The appellant submitted that the respondent was seeking to have the Court overturn findings of fact made by the trial judge.

92. In that context, the appellant noted its appeal was brought pursuant to s 5AA of the Criminal Appeal Act. It submitted s 5AA(4) conferred on the Court a power to confirm the determination of the Court below or order it be vacated and in the latter event, to make any determination the Court below could have made on the evidence heard on the appeal. It submitted that the section did not extend to setting aside factual findings made by the trial judge other than where the determination of the Court below is vacated.

93. The appellant submitted that subsequent to its amendment in 2000, s 5AA has been construed as conferring a right of appeal in the strict sense, requiring the demonstration of error. It submitted there was no scope for the Court simply to make different findings of fact at the insistence of the respondent to the appeal. It pointed to the fact that the respondent did not contend that the finding made in relation to the tilt switch was not available on the evidence. Further, it submitted the Court was not authorised to hear a prosecution appeal pursuant to a notice of contention.

94. The appellant submitted that the finding by the trial judge in respect of the tilt switch was correct and stopping the shearer would not stop the primed roof supports from moving. Further, it submitted there was evidence the tilt switch would not necessarily operate if the remote control was dropped. It pointed to the fact that it was necessary for the control to tilt at an angle of 45 degrees for the switch to operate and that it could be dropped without tilting at that angle.

Consideration

a   The nature of the appeal

95. Section 5AA of the Criminal Appeal Act is in the following terms:

“5AA   Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction

(1)   A person:

(a)   convicted of an offence, or

(b)   against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or

(c)   in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

(1A)   An appeal against an order referred to in subsection (1)(c) may only be made with the leave of the Court of Criminal Appeal.

(2)   For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence.

(3), (3A)   (Repealed)

(4)   The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

(5)   Section 7(4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5(1).

(6)   Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody.

(7)   This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.”

96. It is now well established that following the amendments made to the section consequent upon the decision of this Court in Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, an appeal under this section is an appeal in the strict sense and it is necessary to show error: Thorneloe v Phillip Filipowski [2001] NSWCCA 213; 52 NSWLR 60 at [3]; Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 (Gilmour) (in which it was stated at [19] that error must be demonstrated as a threshold point); Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 at [3]-[5]; Walker Corporation Pty Ltd v Director General Department of Environment and Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12 at [43]; Rummery v Chief Executive Office of Environment and Heritage [2014] NSWCCA 106 at [5]. This principle was not disputed. It follows that an appeal can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact finding exercise.

97. So much was accepted by the parties. However, the appeal gives rise to further questions. First, in the event the Court determined that the trial judge erred in finding the charge proved by reason of one particularised omission, can the Court consider whether the judge should have convicted the appellant on the basis that he erred in finding that another particularised omission did not constitute a breach? This was the matter substantially raised by the notice of contention.

98. The second question is whether the Court has power to order a retrial in the event it finds the trial judge erred in reaching his or her conclusions.

99. Because of the view we have formed on the disposal of the appeal, it is unnecessary to form a final view on either of these questions. However, it is appropriate to express a preliminary view.

100. So far as the first question is concerned, it does not seem to us that the fact the judge may have been in error in failing to find a charge proved on the basis of another particularised omission would of itself result in dismissal of the appeal. However, in Gilmour at [27], in dealing with the absence from s 5AA(4) of the proviso to s 6(1) of the Criminal Appeal Act, Santow JA, with whom Hidden and Adams JJ agreed, made the following remarks:

“[27] I do not consider that the express inclusion of the proviso in s6(1) of the Act should lead to a different result. Section 6(1), and s5AA in its current form, were clearly enacted at different times. The draftsman of s5AA(4) was content to confer a discretion upon the Court of Appeal whose content can be derived from the same common law rule as has long been an essential part of the common law in relation to appeals. It is a rule that, as Kirby J put it, ‘an appellate court would not exercise its powers to set aside a valid judgment (criminal or civil) for immaterial, irrelevant or insubstantial reasons’, these being exemplified by error where ‘no substantial miscarriage of justice has actually occurred’: para [76] at 348”

101. The reference to the judgment of Kirby J in that passage is a reference to his Honour’s judgment in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 (Conway) at [76]. As Santow JA also pointed out in Gilmour at [24], Kirby J also remarked in Conway that “any dismissal of the appeal in the face of a misdirection at trial is controlled by the general view that a court may dismiss an appeal if the error could not, on any reasonable hypothesis, have influenced the result”: at [80].

102. Whilst this approach may justify the dismissal of an appeal where the error in question could be seen to have no material effect on the ultimate conclusion of the trial judge and perhaps where a finding of guilt can be made on the basis of a matter which the trial judge did not find it necessary to consider, we doubt it could extend to dismissal on the ground that guilt was established in a manner expressly rejected by the trial judge, particularly if it involved making contrary findings of fact. It would be difficult to conclude that in those circumstances there was no substantial miscarriage of justice so as to justify dismissal of the appeal: Weiss v R [2005] HCA 81; 224 CLR 300; AK v State of Western Australia [2008] HCA 8; 232 CLR 438 at [58]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [27]-[29], [31].

199. Whilst the objective seriousness of the offence was below the mid-range it was not at the bottom of the range. Whilst the appellant’s systems, approach to safety and its record meant that the case was an exceptional one as far as specific deterrence was concerned, general deterrence was a matter of considerable significance. Further, the appellant’s lack of remorse for the incident which seemed to derive from a belief that it had done everything it reasonably should have, is a matter that must be reflected in the penalty.

200. In our opinion and having in mind that the appellant is being resentenced after a successful Crown appeal the appropriate penalty is a fine of $100,000.

Costs

208. In the costs judgment of 5 February 2015 the trial judge made the following findings (Costs Judgment):

1. The prosecution succeeded without difficulty in establishing the first essential ingredient of the offence, namely that Mr McNab was exposed to the risk of being crushed by the advancing roof support: at [4];

2. The prosecutor sought to establish the risk could have been eliminated by the following measures:

1. reducing the speed at which the Shearer was being       advanced to reduce the incidence and speed of flyrock;

2. requiring the drum operators to remain behind the last       advanced roof support;

3. activating a time out switch on the remote control;

4. activating a tilt switch on the remote control;

5. employing the services of an additional miner, whose sole task was to observe the drum operators.

3. An inordinate amount of time was spent at trial canvassing the practicality of activating the tilt switch mechanism and given that the appellant had adopted the practice of engaging the observer there was “never a live issue that the risk could have been averted by that reasonably practicable measure”: at [9].

4. The substance of the defence was always foreseeability: at [10];

5. The prosecutor’s public duty did not require her to raise issues other than the exposure of Mr McNab to the risk of being crushed by a roof support while incapacitated and that the risk should have been averted by an SAC: at [17].

209. The trial judge found that the respondent failed to establish the first four of the measures in (b) above.

210. The grounds of appeal relied upon by both the respondent and the Attorney were as follows:

1.   In the Judgment as to costs, his Honour ordered that the defendant pay only 20% of the prosecutor's costs on the apparent basis that the prosecutor had succeeded on one of five particulars of the offence. This was wrong in principle.

2.   His Honour failed to take account of the fact that virtually no time in the trial was spent on the particulars that were not found to have been proved.

3.   His Honour gave little or no weight to the fact that much of the time taken in the trial was given over to the defendant's case and the defendant's attempt to prove that the risk was unforeseeable, a matter upon which the defendant had the onus of proof and in respect of which his Honour found against the defendant.

4.   The appellant contends that his Honour was in error when he found that insofar as the prosecutor had pleaded as a measure, that the defendant ought to have adopted to ensure health and safety, the activation of the tilt switch on the shearer's remote controls and therefore his Honour was in error when he apportioned no costs for that part of the prosecutor's case that related to that measure.

5.   The costs order of his Honour had the effect of denying the prosecutor full costs for the sentencing proceedings and limited costs for those proceedings to only 20%.

6.   As a result of the errors set out above the costs order of the trial judge was wrong in principle and ought to be varied to an order that the prosecutor have costs for all of the proceedings or for such portion thereof as this honourable court deems proper.

211. It should first be noted that a substantial portion of the submissions from both parties on costs at the hearing of the appeal concerned the notice of contention where the respondent sought to have the trial judge’s findings concerning the tilt switch reversed. In the light of our conclusion at [134] we have not further considered those submissions.

212. The respondent submitted that his Honour must have awarded only 20% of costs to be paid to the respondent because only one of five particulars had been found proved. The respondent submitted that the trial judge fell into error in assessing the time spent on the various aspects of the prosecution case during the trial. In fact very little time was spent at the trial on particulars 2, 3(b) and 4: see above at [25]. The respondent submitted that the costs order failed to reflect that the prosecution ought to have received the whole of its costs in respect of the sentence proceedings in which the appellant pressed for and was unsuccessful in achieving the non-recording of a conviction.

213. The respondent submitted that the trial judge paid little regard to the public duty that a prosecutor has to put all material issues before the Court. Reliance was placed on what Biscoe J said in Morrison v Defence Maritime Services Ltd [2007] NSWLEC 552; 156 LGERA 365 (Morrison).

214. The respondent submitted that in any event the trial judge made no reference to the costs of the sentence hearing and that it should be inferred that the trial judge overlooked the costs of those sentence proceedings. The appellant was unsuccessful at those proceedings in persuading the trial judge not to record a conviction.

215. The appellant submitted that an appeal by a prosecutor against a costs order may only be made with the leave of this Court (s 5AA(1A) of the Criminal Appeal Act) and leave should not be granted. The appellant submitted that a decision as to costs is a discretionary decision. A requirement for leave means that an applicant must show that there is a question involved either of injustice which is reasonably clear, in the sense of going beyond what is merely arguable, or that there is an issue of principle or a question of general importance. The respondent’s grounds of appeal on costs advance no issue of principle, no question of general importance or no injustice which is reasonably clear.

216. The appellant conceded, correctly in our view, that s 5DB(1) of the Criminal Appeal Act confers jurisdiction on this Court to hear the Attorney’s appeal against the costs order. No leave is required under that section because of the definition of “sentence” in s 2(1) of the Criminal Appeal Act. That definition includes under paragraph (h) any order for the payment of costs made by the court of trial. The result of that removes any force in the appellant’s submissions at [214] above that require something more than error to be shown before leave will be given to the respondent.

217. The appellant submitted that the 20% apportionment was not reached by way of a simplistic division of acts and omissions by five. This was because the judge abjured mathematical precision, he took into account all four particulars as to risk and all five particulars as to acts and omissions, he considered the particulars which did not go to trial after amendment to the summons, and the particular of the risk of being crushed was not found in those terms.

218. The appellant took issue with the grounds of appeal that concerned the time spent on particular issues. However, the appellant accepted that time at the hearing was occupied by the appellant’s case that the risk found proven was not foreseeable.

219. Costs are discretionary. To succeed in overturning a costs order an appellant needs to show an error of the House v The King type: see also Maiden v Maiden [1909] HCA 16; 7 CLR 727 at 742. The trial judge is ordinarily in the best position to make an assessment of the time and importance of different issues where a party has succeeded on some and failed on others and where costs are apportioned by the judge. It will be difficult for an appellate court to decide on matters of apportionment simply by examining a transcript or by having regard to written submissions in the court below.

220. The principles relating to apportionment of costs in civil cases are conveniently summarised in James v Surf Rd Nominees Pty Ltd (No 2) [2005] NSWCA 296 as follows:

[32]   The effect of Pt 52A r 11 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved. This was the subject of comment in Waters v P C Henderson (Aust) Pty Ltd (unreported CA (NSW) Kirby P, Mahoney and Priestley JJA, 6 July 1994) where Mahoney JA said:

Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

[33] Similarly, Toohey J made the following observations in Hughes v Western Australian Cricket Association (1986) ATPR 40–748:

1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. (references omitted)

[34] Where a matter involves multiple issues and the question before the court is whether it should make some other order as to costs other than the order that costs follow the event, a distinction is commonly drawn between cases which involve clearly discrete issues for determination, and those in which all issues are inseparable, or at least sufficiently linked, with respect to the overall disposition of a particular matter. In Permanent Trustee Aust Ltd v FAI General Insurance Co Ltd (unreported, NSWSC, 3 June 1998), Hodgson CJ in Eq noted that the obvious examples of a matter involving discrete issues is one where a plaintiff makes separate claims for different relief, or a claim by a plaintiff and a cross-claim by a defendant. Another example is where a respondent is successful in having an appeal against an earlier decision dismissed, but for reasons other than those raised in the respondent’s Notice of Contention. This is not to say that so-called “discrete issues”, for the purposes of apportioning costs, only exist in cases where there are separate claims made within a single matter. As Toohey J stated in the passage quoted at [33] above, it can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.

[35] In Madden v Connell [2001] NSWSC 1051, Hamilton J referred to there being a “rule” that where there are “discrete issues and the time taken on each issue at the hearing can be identified or realistically estimated”, an order for costs may be made against the party which fails on such issues, or alternatively, that party may be deprived of its costs for that portion of the matter. In the Court’s opinion it is preferable not to speak in terms of “rules”. However, the underlying approach to the “rule” stated by his Honour may be an available approach to the exercise of the court’s discretion as to costs in a particular case, depending upon all of the circumstances.

[36] Where the court does exercise its discretion to apportion costs, the apportionment itself involves the exercise of discretion. As Gummow, French and Hill JJ recognised in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261:

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.

221. These principles are also applicable to criminal proceedings with the qualifications discussed in Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 544, 565, 568-569: see also Morrison at [18]. A particular consideration in a criminal matter is that emphasised by Biscoe J in Morrison at [20]:

When considering apportionment of costs in civil litigation, a balance has to be maintained between not discouraging litigants from canvassing all material issues and not rewarding them for unreasonable conduct in the pursuit of issues. That balance is even more important in a criminal case where a prosecutor has a public duty to put all material issues before the court.

222. The Costs Judgment in the present case provides only minimal reasons for the order ultimately made. The following findings may be discerned:

1. (a)   The prosecution succeeded without difficulty in establishing the first essential ingredient of the offence, namely, that Mr McNab was exposed to the risk of being crushed by the advancing roof support: at [4];

2. (b)   Three ways the prosecutor put forward to eliminate the risk were impractical. The fourth way (the tilt switch) was highly contentious. The simpler and obvious measure was the measure adopted by the appellant – the SAC: at [9], [12];

3. (c)   The substance of the defence was foreseeability. Failure by the appellant on that issue meant an inevitable finding that the offence was proved: at [10];

4. (d)   The prosecutor’s public duty required that she only raise for determination issues that Mr McNab was exposed to the risk of being crushed whilst incapacitated, and that the risk should have been averted by employing an SAC: at [17];

5. (e)   The appellant should not pay the costs of the prosecutor in preparing her case in respect of particulars which did not go to trial: at [18];

6. (f) Mathematical precision is not possible but the appellant should pay only 20% of the prosecutor’s costs not referable to the particulars which did not go to trial: at [18].

223. The matter referred to in (e) is that the original summons filed by the prosecutor on 20 April 2012 pleaded different failures on the appellant’s part from those contained in the amended summons filed 12 October 2012 which was the case ultimately pursued by the prosecutor. The trial did not commence until 26 May 2014. It seems somewhat unlikely that costs referable to the original form of the summons were significant.

224. A few other matters should be noted from the Costs Judgment. First, there is no reference to the sentence proceedings at all. Whilst some of the appellant’s submissions made at that hearing were accepted by the trial judge (on deterrence and remorse) the appellant was ultimately unsuccessful in obtaining a s 10 order. That was significant. The failure of the trial judge to mention the sentence proceedings is a failure to take account of a relevant consideration. Error is demonstrated.

225. Secondly, as far as can be ascertained from the trial judge’s reasons, the awarding of only 20% of the respondent’s costs appears to be related to the failure of the respondent to succeed on all but one of the suggested methods to avoid the risk that was established. Other factors may have influenced the assessment (although not the issue of the particulars which did not go to trial from the original summons) but the trial judge did not say what they were.

226. Thirdly, what the trial judge did note of significance was that the key issue in the defence was foreseeability, proof of which would inevitably result in proof of the offence. In that regard it should be remembered that a successful party should not be deprived of costs unless there is material to justify a contrary order being made: Milne v Attorney-General for the State of Tasmania [1956] HCA 48; 95 CLR 460 at 477. The only matter identified by the trial judge appears to be what appears at [221] (b) above.

227. Fourthly, the trial judge said (Costs Judgment at [9]):

In circumstances where the defendant itself suggested and adopted the reasonably practicable measure of engaging an additional miner as an observer there was never a live issue that the risk could have been averted by that reasonably practicable means.

228. The respondent submitted that his Honour was wrong so to conclude.

229. What the trial judge said in that regard does not appear to be borne out by the appellant’s written submissions at trial paras [400]-[410] with this conclusion at [410]:

For these reasons, the Court should conclude that it would not have been reasonably practicable for the Defendant to have implemented the measure proposed by the Prosecutor in particular 3(c).

230. The appellant submitted that the trial judge’s statement is correct if the words “reasonably practicable” are omitted. That, however, tends to provide support for the respondent’s submission. The appellant accepted that the “reasonably practicable” aspect of the matter was related to foreseeability, and that was (as the trial judge said: Costs Judgment at [10]) “the substance of the defence”. As noted earlier, the appellant accepted that time was taken at the hearing on the issue of foreseeability. The respondent’s submission should be accepted.

231. Whilst it may be accepted that, when apportioning costs, mathematical precision is not possible (as the trial judge observed: Costs Judgment at [18]) it is incumbent on the decision maker to identify the considerations which led him or her to apportion in a particular manner. The failure to give reasons in that regard will amount to error. The appellant’s submissions suggesting reasons why the proof of one out of five particulars was not the basis for the 20% should be rejected. The statement concerning mathematical precision is merely a well iterated statement from a number of authorities, the particulars that did not go to trial were the subject of a separate costs order unrelated to the 20% apportionment, and the finding of the risk in the terms identified explains nothing about the 20% apportionment.

232. In the present case, the only possible conclusions are that the 20% was reached by reference to the five methods advanced by the respondent, or that it was reached by reference to matters not identified by the trial judge. In either case, error is established.

233. It is necessary, therefore, for this Court to re-exercise the discretion. In exercising that discretion, some weight must be given to the evaluation made by the trial judge of the time particular issues took in terms of evidence and submission. We note, in that regard, that in the Costs Judgment, the trial judge said:

[9]   An inordinate amount of time was spent during the hearing canvassing the practicality of activating the tilt switch.

234. We note further that the trial judge said:

[4]   In the present case the prosecution without difficulty succeeded in establishing the first essential ingredient of the offence, namely, that Mr McNab was exposed to the risk of being crushed by the advancing roof support.

235. Other matters for consideration are these:

1. The respondent was successful in establishing a breach of the Act;

2. The significance of the issue of foreseeability;

3. The respondent failed in demonstrating that four proposed methods were reasonably practicable;

1. The summons was amended at a relatively early stage to change the basis of the case being put forward by the respondent;

2. The respondent was successful at the sentencing hearing in resisting the appellant’s application for a s 10 discharge, and having a penalty imposed.

236. Taking into account the matters in [230] and [231] above and having regard to the principles earlier discussed, we consider that the proper order is that the appellant should pay 50% of the respondent’s costs. There is no reason that the appellant should not pay the respondent’s costs of appeal.

orders

237. In the result, we would make the following orders:

1. Appeal dismissed;

2. Appeal against penalty allowed;

3. Order that in lieu of the penalty imposed by the trial judge, a penalty of $100 000 be imposed on the appellant;

4. Grant the respondent leave to appeal against the costs order made by the trial judge;

5. Allow the appeal against the costs order;

6. Order that the appellant pay 50% of the respondent’s costs in the court below.

**********

Amendments

20 July 2017 - [37] amended the Note at the end of the extract of Clause 6

14 July 2017 - [37] in quote after "investment" add "(then known as the Department of Primary Industries)"

[67] last sentence change "[120]" to "[20]"

[81] change "s 8(1)(e)" to "s 8(1)(d)"

[96] change citation "Gilmour v Environment Protection Authority" to "(2000) 55 NSWLR 593"

[101] change citation "Conway v The Queen" to "(2002) 209 CLR 203"

[106] after "s 8" insert "of the Act"

28 July 2016 - The orders of the Court be varied - Order 7 deleted.

17 March 2016 - Judgment par [125] change "The failure to appoint an observer" to "The appointment of an observer"

15 March 2016 - Headnote par [4] change "$55 000" to "$50 000".

Judgment par [1] change "$55,000" to "$50,000".

Decision last updated: 20 July 2017