District Court
New South Wales
- Amendment notes
Medium Neutral Citation: McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255 Hearing dates: 11, 17-20, 23-27, 30-31 August 2021; 1, 7-8, 15-17 September 2021; 19- 22 October 2021; 1-2, 8-10, 29-30 November 2021, 1-2, 9 December 2021; 14-15 July 2022 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2 I find the defendant not guilty.
3 The Second Amended Summons is dismissed.
4 I order that the prosecutor is to pay the defendant’s costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.
5 Exhibits are returned.
NOTATION
1 The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury
Legislation Cited: Explosives Act 2003
Explosives Regulation 2013
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011
Work Health and Safety (Mines and Petroleum Sites) Regulation 2014
Cases Cited: Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bulga Underground Operations v Nash [2016] NSWCCA 37
Camden v McKenzie [2008] 1 Qd R 39
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Coote v Kelly [2016] NSWSC 1447
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Fox v Percy (2003) 214 CLR 118
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
Hughes v Barbara Mines Ltd (No 4) [2010] WASC 160
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
McGraddie v McGraddie [2013] 1 WLR 2477.
New South Wales v Hunt (2014) 86 NSWLR 226
Onassis v Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
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- AGLC
- McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255
- Case
- [2023] NSWDC 255
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the prosecution had proven beyond reasonable doubt that Moolarben Coal Operations Pty Ltd failed to comply with its duty under work health and safety legislation, and whether this failure directly contributed to the injury of an employee. The court needed to determine if the company had breached its duty of care, particularly in terms of risk management concerning potential fatal or serious injuries.
The court found that the prosecution had not succeeded in proving all elements of the offence beyond reasonable doubt. The judgment highlighted that there was insufficient evidence to establish the specific causation of the injury and the company's breach of duty. Consequently, the defendant was found not guilty. The Second Amended Summons was dismissed, and the court ordered that the prosecutor pay the defendant's costs as agreed or assessed under the relevant statute. The exhibits were returned to the parties involved.
In summary, the court dismissed the charges against Moolarben Coal Operations Pty Ltd due to the prosecution's inability to meet the burden of proof. The decision underscores the necessity for robust evidence in cases involving work health and safety charges, particularly in relation to the causation of injuries and breaches of duty.
Orders
Orders of the court
1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2 I find the defendant not guilty.
3 The Second Amended Summons is dismissed.
4 I order that the prosecutor is to pay the defendant’s costs of the proceedings as agreed or assessed pursuant to s257G Criminal Procedure Act 1986.
5 Exhibits are returned.
NOTATION
1 The Court notes this was an appropriate matter for the retention of senior and junior counsel by both parties given the length and complexity of the proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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