Legal Research
Cases
Nash v Resource Pacific Pty Ltd (No 3)

Nash v Resource Pacific Pty Ltd (No 3)

Link copied

Case Copied 2 February 2018 73 min read

Contents

On this page

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Hearing dates: 15-18, 23-26, 29 February; 1-4, 8-11, 14-18, 22-23, 30-31 March; 1, 5-7, 13, 20, 29 April; 5, 17 May; 24, 28 June; 30 August; 2, 13-14, 20, 22, 26 September; 17-19 October; 6-7, 9 December 2016
Date of orders: 02 February 2018
Decision date: 02 February 2018
Jurisdiction: Common Law
Before: Walton J
Decision:
I have reached the following conclusions in the matters before the Court:

(1) The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632.

(2) The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632.

(3) The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616.
The defendant is not guilty of the charges brought under ss 8(2) and 10(2) of the Act. The charges are dismissed.
Catchwords: OCCUPATIONAL HEALTH AND SAFETY – trial – Resource Pacific Pty Ltd prosecuted under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – not guilty pleas – defendant operator of coal mine – transport of reject material from reject bin for disposal – reject material released from hopper situated in bin into trucks – loading cycle involved programmable electronic control system to facilitate correct positioning of truck when load released – truck driver killed when reject material released from bin onto cabin of truck – particulars of respective charges considered – findings of a failure to prove beyond reasonable doubt a contravention or the defendant had proved on the balance of probabilities it was not practicable to comply with the duties under s 8(2) – defendant found not guilty – charges dismissed
Legislation Cited: Clean Waters Regulations 1972 (NSW)
Coal Mine Health and Safety Act 2002 (NSW)
Coal Mine Health and Safety Regulation 2006 (NSW)
Coal Mines Act 1911 (UK)
Coal Mines Regulation Act 1982 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Evidence Act 1995 (NSW)
Health and Safety at Work Act 1974 (Vic)
Health and Safety in Employment Act 1992 (NZ)
Metalliferous Mines General Regulations 1938 (UK)
Mining Act 1992 (NSW)
Mining Act 2002 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Act 2004 (Vic)
Occupational Health and Safety Regulation 2001 (NSW)
Occupational Safety and Health Act 1984 (WA)
Occupational, Health and Safety Act…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Nash v Resource Pacific Pty Ltd (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 45
Decision Date: 02 February 2018

CaseChat Overview and Summary

In the case of Nash v Resource Pacific Pty Ltd, the defendant, Resource Pacific Pty Ltd, was prosecuted under sections 8(2) and 10(2) of the Occupational Health and Safety Act 2000. The prosecution arose from an incident at the defendant's coal mine where a truck driver was killed when reject material was released from a reject bin onto the truck's cabin. The defendant, an operator of the coal mine, pleaded not guilty to the charges. The primary legal issues for the court to decide were whether the defendant had contravened the Occupational Health and Safety Act and, if so, whether it was practicable for the defendant to comply with the duties imposed by the Act.

The court examined the particulars of the charges and the evidence presented. It considered whether the prosecution had proved beyond reasonable doubt that the defendant had contravened the Act or whether the defendant had demonstrated on the balance of probabilities that it was not practicable to comply with the duties under section 8(2). The court found that the prosecution had not proven the charges beyond reasonable doubt, and the defendant had established that compliance was not practicable. Consequently, the defendant was found not guilty of the charges, and the charges were dismissed.

The decision of the court hinged on the burden of proof required by the Occupational Health and Safety Act and the specific circumstances of the incident. The court's findings underscored the importance of the prosecution meeting the high standard of proof and the defendant's ability to demonstrate that compliance with the statutory duties was not feasible under the given circumstances.

Orders