Nash v Bulga Underground Operations Pty Ltd (re Newstead)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 76
Hearing dates:	20 May 2015
Decision date:	26 May 2015
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	I fine the defendant $75,000 with a moiety to the Prosecutor. The defendant is to pay the Prosecutor’s costs agreed or assessed.
Legislation Cited:	Occupational Health and Safety Act 2000
Cases Cited:	Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186; Morrison v Defence Maritime Services Pty Limited (2007) 156 LGERA 365
Category:	Sentence
Parties:	Jennifer Ann Nash, Director, Mine Safety Performance, NSW Department of Trade and Investment, Regional Infrastructure and Services (Prosecutor); Bulga Underground Operations Pty Ltd (Defendant)
Representation:	Counsel: Mr C Magee, instructed by Crown Solicitor, appeared for the Prosecutor; Mr D Buchanan SC with Mr M Shume, instructed by Sparke Helmore, appeared for the defendant
File Number(s):	12/244559

Judgment

Outline

1. The defendant has been found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000. The matter is now before me for sentence.

2. The particulars in respect of which the defendant has been found guilty, in summary form, are as follows:

1. failing to install secondary roof support;

2. failing to ensure that the pick changing was undertaken under supported roof;

3. failing to ensure that the pick changing was undertaken at the maingate drive or at a take-off chute under a supported roof;

4. failing to conduct a risk assessment;

5. failing to ensure that Mr Newstead was provided with adequate information and training;

6. failing to ensure that Mr Newstead was provided with instruction that if the roof supports were not able to be advanced sufficiently to provide roof support, he should not access the work area until secondary roof support had been installed;

7. failing to adequately supervise Mr Newstead and the longwall crew to ensure that the maingate cutter drums were positioned under supported roof;

8. failing to adequately supervise Mr Newstead and the longwall crew to ensure that a risk assessment was undertaken to identify hazards arising from the Huesker mesh.

Denial of procedural fairness

3. At the outset, I deal with one submission of the defendant. It is that it was denied procedural fairness in relation to the point as to whether the picks could and should have been changed on the shift prior to the incident. This is no longer the forum for that to be debated or for me to rule on.

4. The defendant maintains that, quite apart from the question of guilt, the finding on this point could adversely affect it on sentence because of the denial of procedural fairness. Assuming, for the moment, a denial of procedural fairness, I am not satisfied that it has resulted in any injustice to the defendant. I am satisfied, however, that the problem, if there be one, is capable of cure. I can ignore my finding in relation to this point in determining sentence. In a nutshell, this case is about roof fall and…