Orr v Cobar Management Pty Ltd

[2019] NSWDC 796

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Orr v Cobar Management Pty Ltd [2019] NSWDC 796
Hearing dates:	23 October 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	(1)   I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.  (2)   I direct that the prosecutor provide the stated case to my Associate on or before 5 pm on 7 February 2020.
Catchwords:	CRIME- Appeal- whether proceedings had been completed- error of law
Legislation Cited:	Criminal Appeal Act 1912 Criminal Procedure Act 1986 Land and Environment Court Rules 1996 Work Health and Safety Act 2011
Cases Cited:	Attorney General for New South Wales v X (2000) 49 NSWLR 653 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Charara v Director of Public Prosecutions [2001] NSWCCA 140 Charles Forte Investments Ltd v Amanda [1964] Ch 240 Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Brixius (1987) 16 FCR 359 Elias v Director of Public Prosecutions [2012] NSWCA 302 Environmental Protection Authority of New South Wales v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198 Ex parte McGavin; Re Berne and Others (1946) 46 SR 58 Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FLR 410 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 Orr v Cobar Management Pty Ltd [2019] NSWDC 224 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v Cheng (1999) 48 NSWLR 616 R v Vincent [2002] NSWCCA 110 Registrar Court of Appeal v Craven (No 2) (1995) 80 A Crim R 272 Rogers v R (1994) 181 CLR 251 Talay v R [2010] NSWCCA 308 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Waterford v Commonwealth (1987) 163 CLR 54 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Williams v The Queen (1986) 161 CLR 278
Category:	Procedural and other rulings
Parties:	Stephen Orr (Prosecutor) Cobar Management Pty Ltd (Defendant)
Representation:	Counsel: J Agius SC/C Magee (Prosecutor) A Moses SC/J Alderson (Defendant)     Solicitors: SafeWork NSW (Prosecution) Seyfarth Shaw (Defendant)
File Number(s):	2016/174236
Publication restriction:	None

Judgment

Introduction

1. Cobar Management Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed James Hern, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.

2. Mr Hern was employed by the defendant in the services crew at its CSA mine at Cobar (the mine). At about 11.15pm on 11 June 2014, whilst attempting to unblock a drain hole in a flooded sump, Mr Hern’s leg was sucked into the drain hole trapping him under the surface of the water. The water pressure was so great that he could not be removed from the hole for some time and he drowned.

3. On 27 May 2019, after a trial of 36 days over a period of about 15 months, I delivered reasons for judgment in the substantive hearing in this matter, concluding that the prosecution had not proved all the elements of the offence beyond a reasonable doubt.

4. The prosecutor seeks pursuant to section 5AE Criminal Appeal Act 1912 that I state 26 questions for determination by the Court of Criminal Appeal. I must be satisfied that those questions are questions of law and that having them answered will enable the proper and just determination of the proceedings according to law.

5. The defendant contends that I do not have jurisdiction to state the questions to the Court of Criminal Appeal because the judgment was in substance an acquittal and the proceedings have completed.

6. It is convenient to deal with the defendant’s jurisdiction point first, before turning to consider the questions put forward by the prosecutor.

Procedural background

7. The incident the subject of the proceedings occurred on 11 June 2014.

8. On 7 June 2016 the prosecutor commenced the proceedings by filing the Summons. On 21 August 2017 the prosecutor was granted leave to file an Amended Summons, which was filed and served on 31 August 2017.

9. The trial commenced on 20 November 2017 with an estimate of four weeks. The matter was heard on 20-24 November 2017, 27 and 29 November 2017 4-8 December 2017 and 11 December 2017. During the course of the trial it became apparent that the prosecutor had not complied with his duty of disclosure. On 11 December 2017 the trial was adjourned part heard with orders made to deal with the disclosure issue.

10. On 27 March 2018 the matter came before the Court for procedural arguments relating to the disclosure issue and a ruling was made on certain procedural aspects of the trial.

11. The trial was listed to resume on 3 September 2018 with an estimate of four weeks. The second part of the trial was heard on 3-7, 10-14, 17-21, 26-28 September 2018 and 11 December 2018.

12. The parties then exchanged lengthy written submissions. The matter was listed for closing submissions on 12-13 February 2019.

13. On 22 May 2019 I informed the parties that the matter would be listed for judgment on 27 May 2019.

14. At 8.36am on 27 May 2019 my Associate received an email from the solicitors for the prosecutor requesting that in the event that a finding was made that the offence was not proven that the prosecutor be given the opportunity to consider his position in relation to stating a case to the Court of Criminal Appeal.

15. On 27 May 2019 I published my reasons for judgment in Orr v Cobar Management Pty Ltd [2019] NSWDC 224. I concluded that the prosecution had not proved all of the elements of the offence beyond a reasonable doubt. The proceedings were adjourned to allow the prosecutor to consider his position on this application.

16. On 8 July 2019 the prosecution served its proposed questions of law.

17. The matter was listed for argument as to the stated case and the jurisdiction point on 23 October 2019.

The jurisdiction point

Have the proceedings completed?

18. The defendant’s jurisdiction point turns on whether or not the proceedings have completed.

19. Section 5AE provides:

(1)   At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2)   The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

20. The defendant submitted that my conclusion at [322] of the reasons for judgment amounted to an acquittal, because that was the substance and effect of my decision, citing; R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 304, R v Cheng (1999) 48 NSWLR 616 at 618, R v Vincent [2002] NSWCCA 110 and Registrar Court of Appeal v Craven (No 2) (1995) 80 A Crim R 272.

21. Section 5AE Criminal Appeal Act 1912 was considered in Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198 (EPA). In that case the primary judge reserved his decision after a 3 day hearing concerning two criminal offences relating to water pollution. His Honour prepared a written judgment finding that the defendant had polluted the relevant waters, but that the defendant had established two defences available to it under the relevant legislation. When the matter was listed for judgment, counsel for the prosecutor asked that the judge adjourn the proceedings to allow the prosecutor to consider if it wished to make an application to state a case to the Court of Criminal Appeal. The primary judge amended the orders he intended to make, that the defendant was not guilty, describing them as ‘proposed orders’ and adjourned the matter for 14 days. When the matter returned to Court the defendant opposed the stating of the proposed questions to the Court of Criminal Appeal on the basis that the Land and Environment Court had no power to do so because the proceedings had been completed in substance when the primary judge handed down his reasons for judgment. The primary judge accepted that submission and entered final orders, acquitting the defendant.

22. The Court of Criminal Appeal (Tobias JA, Meagher and Santow JJA agreeing) on judicial review of his Honour’s decision decided at [52] that the proceedings were not completed until his Honour had entered final orders dismissing the prosecutor’s summons. It was only at this time that the defendant was ‘acquitted’ of the offences.

23. The defendant contended that the EPA decision could be distinguished on two bases. First, the EPA decision was based on Part 15 rule 5 Land and Environment Court Rules 1996 (LECR) which does not apply to the present proceedings and section 253 Criminal Procedure Act 1986 which has been repealed. Second, the defendant contended that my conclusion that the prosecution had not proved the elements of the offence beyond reasonable doubt was not qualified and thereby amounted to a formal pronouncement of an acquittal of the defendant.

24. As to the first of the defendant’s arguments, Part 15 rule 5 LECR provided:

A final order disposing of any proceedings takes effect when it is given or made, unless otherwise ordered by the Court.

25. Section 252 Criminal Procedure Act 1986 applied to summary proceedings in the Land and Environment Court by operation of section 170(3)(c) of the same Act. Section 252 Criminal Procedure Act 1986 also applies to these proceedings. Section 252 Criminal Procedure Act 1986 provides:

If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter.

26. At the time of the EPA decision section 253(1) Criminal Procedure Act 1986 provided for the payment of costs by an accused if they were convicted of an offence, or if an order pursuant to section 10 Crimes (Sentencing Procedure) Act 1999 was made. Section 253(1A) Criminal Procedure Act 1986 provided for the payment of costs by the prosecutor if an order was made dismissing the charge for an offence. Section 253 Criminal Procedure Act 1986 was repealed on 13 July 2006, but replaced by sections 257B and 257C respectively which for present purposes contain the same references. At [32] of the EPA decision, Tobias JA reasoned by reference to the context of the Act, that the terms of section 253(1) and (1A) provided for the determination of proceedings pursuant to section 252 Criminal Procedure Act 1986 by way of a final order of either a conviction or a dismissal.

27. Notwithstanding the repeal of section 253 Criminal Procedure Act 1986, the same contextual construction of section 252 is available because sections 257B and 257C apply to these proceedings. That construction is reflected in the practice of the Court when it deals with summary prosecutions.

28. Tobias JA did not ultimately rely on Part 15 rule 5 LECR in arriving at his conclusion in [52] of the EPA decision.

29. As to the second argument, the only order that the Court made on 27 May 2019 was to adjourn the proceedings. The statement in [322] of the judgment was a conclusion based on the evidence and on my present understanding of the law at the time of handing down those reasons. In the EPA decision, Tobias JA dealt with the same argument, based on Craven (No 2) at [46]-[47] deciding that what was said by the primary judge was not a ‘formal pronouncement’ as contemplated by Kirby P at 276. His Honour found at [44] that double jeopardy does not arise where the defendant is told that the proceedings will be determined in its favour, but only when the defendant is told that the proceedings are determined in its favour.

30. In my view, I am bound by the EPA decision and it cannot be distinguished on the basis of the defendant’s arguments. It follows that the proceedings have not completed and I have jurisdiction to determine the prosecution’s application to state a case to the Court of Criminal Appeal pursuant to section 5AE Criminal Appeal Act 1912.

31. In the event that I found against the defendant, it asked me to state a preliminary question in the stated case as to the jurisdiction point. The appropriate question is:

Did I have the power to state the following questions of law pursuant to section 5AE Criminal Appeal Act 1912?

The stated case

32. The prosecution has put forward 26 questions to be considered for stating to the Court of Criminal Appeal. Those questions are set out in Appendix A to this judgment.

33. I will start by referring to the relevant principles to be applied in determination of this application.

The relevant law

34. In Ex parte McGavin; Re Berne and Others (1946) 46 SR 58 at 61 Jordan CJ said:

The word "may" is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 CB 755 at 773, that "when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application": Cook v Cook (1923) 33 CLR 369 at 377; R v Mitchell [1913] 1 KB 561. Section 23 of the Interpretation Act 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute: Smith v Watson (1906) 4 CLR 802 at 811, 819, 827. In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.

35. These principles have been authoritatively re-stated on a number of occasions in the Court of Criminal Appeal: Charara v Director of Public Prosecutions [2001] NSWCCA 140 and Elias v Director of Public Prosecutions [2012] NSWCA 302.

36. A stated case is a limited form of appeal. It enables a party aggrieved by a ruling of law to have that ruling reviewed and enables the District Court to receive advice in questions of law relevant to the ultimate determination of the proceedings: Talay v R [2010] NSWCCA 308 at [12] and Environmental Protection Authority of New South Wales v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 at [36].

37. The questions to be the subject of referral under section 5AE Criminal Appeal Act 1912, must be questions of law and not of fact: Attorney General for New South Wales v X (2000) 49 NSWLR 653.

38. The questions must have some utility in the context of the proceedings: Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198 at [58] and [65].

39. Questions of mixed fact and law are not questions of law: Attorney General for New South Wales v X at [44] and Williams v The Queen (1986) 161 CLR 278.

40. In Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, Mason JA (as his Honour then was) stated:

It may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.

The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact (footnotes omitted).

41. This passage was cited with approval by Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26].

42. The appealable error of law must arise on the facts found or must vitiate the findings made or must have led the court to omit to make a finding that it was legally required to make: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286.

43. A wrong finding of fact is not sufficient to demonstrate an error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-8.

44. Where the decision of the court involves matters of fact and degree, then provided it applies the correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365.

45. In Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FLR 410 at [13] the Full Federal Court identified four general categories of errors of law:

1. Whether the court has identified the relevant legal test.

2. Whether the court has applied the correct legal test.

3. Whether there is any evidence to support a finding of fact.

4. Whether the facts found fall within a statute properly construed.

46. The distinction between an error of fact and an error of law can be elusive. In Pozzolanic the Full Federal Court at 287 identified five general propositions can be taken from the cases (references omitted):

1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical legal meaning is a question of law.

2. The ordinary meaning of a word or its non-technical meaning is a question of fact.

3. The meaning of a technical legal term is a question of law.

4. The effect of or construction of a term whose meaning or interpretation is established is a question of law;

5. The question whether facts fully found fall within a provision of a statutory enactment properly construed is a question of law. This principle is qualified where a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do, then the question of whether they do or not is a question of fact.

47. In Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389 at 397 the High Court expressed doubt over the distinction between propositions (2) and (4) stating, without deciding the point, that notions of the meaning of words and construction are interdependent, making the distinction hard to maintain without ‘some qualification concerning construction that is currently absent from the law’.

48. In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 the Court of Appeal at [63] adopted academic commentary of Mark Aronson and others, to hold that misunderstanding a statutory term that has a legal meaning or to stray beyond the boundaries of a term with an ordinary meaning, both involve an error of law.

49. Abuse of process is a general concept, amenable more to illustration than definition: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 and Ridgeway v R (1995) 184 CLR 19 at 74-5. The concept includes maintaining proceedings that are untenable in the admitted circumstances and where a step seeks to re-litigate an issue already determined in earlier proceedings: Charles Forte Investments Ltd v Amanda [1964] Ch 240 and Rogers v R (1994) 181 CLR 251 at 255, 287.

Consideration

50. The prosecutor does not contend that I misstated any aspect of the law in the principal judgment. The prosecutor does not contend that I made a factual finding in the absence of evidence.

51. The crux of the prosecutor’s arguments is that I made an error of law in the application of the law to the facts.

50. It is apparent that some of the questions put forward by the prosecutor are questions of law and it follows that I should state those questions. The questions raised in some instances should be revised for clarity and to simplify the stated case. I have set out the questions to be stated in Appendix B to this judgment.

51. I will refer to the questions by reference to the numbering and categorisation suggested in the prosecutor’s submissions and deal with each as to whether or not it should be stated.

The pleaded risk

Particular 14

54. At [14] of the Amended Summons the prosecutor pleaded the risk as follows:

Mr Hern was exposed to a risk of death or serious injury from becoming submerged and/or trapped under the water that had accumulated in the 8820 North sump while he was undertaking the task of unblocking the 8820 North sump drain hole.

55. At [204] I stated that:

In order for the pleaded risk to arise it was necessary for Mr Hern to get into the water in the course of undertaking his duties, either deliberately or accidentally.

56. With the benefit of hindsight it would have been more precise to say that in order for Mr Hern to be exposed to the pleaded risk it was necessary for Mr Hern to get into the water in the course of undertaking his duties, either deliberately or accidentally. The finding of when the pleaded risk ‘arose’ is not really useful to the analysis.

57. In my view [204] displays no more than a looseness of language that does not give rise to a question of law: Pozzolanic at 287. It appears that I adopted the language of the prosecutor in his written closing submissions at [339] where he also used the phrase ‘the [pleaded] Risk arose’. My interpretation of [204] is supported by my finding at [226].

58. On this application the prosecutor contends that I misinterpreted the pleaded risk and that was an error of law. Whilst I accept that the meaning of the pleading in [14] is a question of law, my finding at [204] does not go to the meaning of the pleaded risk but only to the circumstances of how Mr Hern may have potentially been exposed to the pleaded risk. In doing so I considered that it may have been possible for Mr Hern to get into the water accidentally, which was not how he got into the water by reference to the circumstances of the incident. As a matter of logic, these were the only two possibilities for how that could occur.

59. A further difficulty with this submission is that the prosecutor could not identify an alternate interpretation of the pleaded risk on which he relied. When asked on a number of occasions during the oral argument on this application, Senior Counsel for the prosecutor gave a number of inconsistent answers that did not demonstrate any significant departure from the ordinary meaning of the language used in [14] of the Amended Summons.

60. It was common ground at trial that the hazard posed by the accumulation of a large volume of water in the sump was present from at least the previous shift, being a time before Mr Hern was sent to the sump. There are multiple findings to that effect in the judgment and it cannot seriously be suggested that the finding at [204] usurps those findings.

61. It was the prosecution case at trial that:

1. the elimination of the hazard by lowering the level of the water in the sump before Mr Hern attended at the scene would have eliminated the risk; and

2. the defendant’s safety system should have identified the potential for the hazard to arise and put in place an adequate work procedure that would have eliminated or minimised the risk.

62. There are a number of factual findings in the judgment led to those arguments not being accepted, including: [1]

    1. This is not intended to be an exhaustive list and there may be others. The defendant submitted that the factual findings had this effect and referred to some of them orally, but they were not referred to in detail in the defendant’s written submissions.

1. The prosecutor’s case involved the application of considerable hindsight [266], [285].

2. The clearing of strainers was a routine task that did not involve workers (other than Mr Roberts on rare occasions) entering water above gumboot height [267].

3. Drain holes became blocked by natural causes about once or twice per year. [75] Drain holes were deliberately blocked less frequently than that [80] and [268].

4. The presence of large bodies of water in the mine was a rare occurrence and the level of water in the sump at the time of the incident was unprecedented [206]. Workers would enter water above gumboot height within the confines of an ITC basket and complying with the WiB Procedure [220].

5. The MOC Procedure did not operate in the way contended for by the prosecutor [277].

6. If a prospective risk assessment had been conducted at the time of blocking the drain hole it would not have identified the matters that led to the accumulation of a large volume of water in the sump.

7. The risk was not reasonably foreseeable [226] taking into account the matters in [211]-[225].

8. The water was confined to the sump until about 5.30am on 11 June 2014. The water level continued to be monitored during the course of the day.

9. At about 2.00pm on 11 June 2014 Mr Chaplain decided that dealing with the hazard posed by the water in the sump should be left to the night shift, as making any major changes whilst workers were underground may present hazards [116].

10. Mr Hern and Mr Booth were tasked with unblocking the sump and directed to contact Mr McMillan when they got to that task [239].

11. It was the intention of Mr McMillan and Mr Cownie to be present at the sump to direct the workers on the task [128] and [239].

12. Mr McMillan and/or Mr Cownie would have directed the workers to reduce the water level in the sump and directed them to prepare a JSA, if they had been contacted by the workers, as they were directed [129] and [280].

13. In the absence of the risk assessment contended for, Mr Hern had the required knowledge from the operation of the defendant’s safety system to undertake the task safely [214].

63. The prosecutor in this application seeks to relitigate factual issues that have been decided against him. In my view that amounts to an abuse of process, particularly when the case has completed and the defendant has exposed its case. In my view, the prosecutor should not be permitted to re-agitate the arguments that were rejected at trial on the basis of the findings of fact I have referred to.

64. Question 1A is not a question of law when the finding at [204] is considered in context. In the alternative it amounts to an abuse of process.

65. Question 1B does not arise because the case was conducted on the basis that the hazard existed before Mr Hern was sent to the sump and that it is otherwise in conflict with findings of fact in the judgment. In the alternative it amounts to an abuse of process.

66. Question 1C does not arise because the case was conducted on the basis that the hazard existed before Mr Hern was sent to the sump and that it is otherwise in conflict with findings of fact in the judgment. In the alternative it amounts to an abuse of process.

67. Question 2 is not a question of law when the finding at [204] is considered in context. In the alternative it amounts to an abuse of process.

68. Question 3 has a number of problems.

69. First, to the extent that it flows on from questions 1 and 2, for the reasons given it is misconceived.

70. Second, question 3 is based on the prosecutor’s submission that the pleaded risk was misinterpreted or there was an error in ‘defining the scope of the [pleaded] Risk’. The prosecutor’s submissions do not withstand scrutiny on this point because the prosecutor cannot state the interpretation of the pleaded risk that should have been applied. For the reasons already given, the prosecutor’s submissions do not state anything different to what is conveyed by the plain language of the pleading. No submission was made as what was meant by the prosecutor’s phrase ‘the scope of the risk’. No attempt was made by the prosecutor to justify how ‘the scope of the risk’ fits within the relevant provisions of the Act.

71. Third, ‘foreseeability of a risk’ a phrase repeated by the prosecutor in his submissions in support of this application is not an element of section 18 of the Act. Section 18(c) of the Act states that a relevant matter to be considered is:

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

(i)   the hazard or the risk…

72. Question 3 is purports to ascertain a legal test relating to words that do not appear in Act and accordingly is of no utility.

73. Fourth, question 3 implies that the specified facts were not given proper weight. The finding at [226] is prefaced as being ‘[B]ased on all of the evidence…’. To at least that extent, question 3 involves question of fact and if not a question of fact it is a question of mixed law and fact.

74. Question 4 has a number of problems.

75. First, question relies again on the prosecutor’s ‘foreseeability of risk’ formulation that does not appear in the Act.

76. Second, question 4 is based on a false premise. The finding at [226] stated that it was foreseeable that a worker could enter the water or fall into it, but that in all of the circumstances it was not reasonably foreseeable that a worker would enter into or fall into the water.

77. For the reasons given, I am not satisfied that questions 1-4 should be stated.

Breach of duty

Particular 16

78. Question 5 is concerned with the finding at [254]. The proposed question purports to draw attention to a selective group of findings and not all of the relevant findings, which in my view is apt to mislead. The prosecutor submits that the finding at [254] was irrational and must have been arrived at by applying the wrong test. In my view, those two concepts are linked and can be addressed by the following question:

Was it open for me to find at [254], on the facts as found, that the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure?

79. Questions 6 and 7 are misconceived. I made an express finding at [244] that reducing the level of water in the sump was a way of eliminating or minimising the pleaded risk. Questions 6 and 7 are based on a false premise that I found to the contrary in [249]. In my view, questions 6 and 7 do not arise.

Particular 17(a)

80. Questions 8-11 demonstrate the same difficulties that I have identified with, for example, question 5. Question 8 seeks to formulate a different case than the case that was put at trial and demonstrates a fundamental misunderstanding of the JSA Procedure. Questions 9 and 10 seek to selectively rely on certain facts. Question 10 and 11 are linked for the reasons given in [75] above.

81. In my view the prosecutor’s arguments are covered by the following question:

Was it open for me to find at [263], on the facts as found, that the measure pleaded in [17(a)] of the Amended Summons was not a reasonably practicable measure?

Particular 17(b)

82. In the prosecutor’s submissions relating to question 12, he alleges that I did not apply section 18 Work Health and Safety Act 2011 because I did not refer to it in [264]-[285] of the judgment. Question 12 should be reformulated as follows:

Did I fail to apply section 18 Work Health and Safety Act 2011 in [264]-[285] of the judgment?

83. Question 13 should be restated, for the reasons already given, as follows:

Was it open for me to find at [285], on the facts as found, that the measure pleaded in [17(b)] of the Amended Summons was not a reasonably practicable measure?

84. Questions 14 -16 do not arise because at [279] I did not find that the measure pleaded at [17](b)(i) was not reasonably practicable because that question did not need to be determined. The prosecution pleaded in [17](b) of the Amended Summons that the reasonably practicable measure that the defendant should have taken was to ‘develop implement and enforce an adequate work procedure’ with specific features. The specific feature pleaded in [17](b)(i) of the Amended Summons was only one of those features and I was not required to decide if that feature was reasonably practicable. If a specific feature was not reasonably practicable, that may be relevant to determining if the measure at [17](b) was established but not decisive, because the specific measures were pleaded in the alternative.

Particular 17(b)(ii)

85. Questions 17-20 do not arise for the same reasons expressed in [84] above.

Particular 17(b)(iii)&(iv)

86. Questions 21 and 22 do not arise for the reasons expressed in [84] above. However, Questions 21 and 22 reflect a complaint about the finding at [281] which have some separate utility. I would reformulate the questions into one question as follows:

Was my finding at [281], relevant to determining if the measure pleaded at [17](b) of the Amended Summons was reasonably practicable?

Particular 17(b)(v)

87. Question 23 does not arise because it misstates my finding at [282]. The findings on reasonable foreseeability are not limited to the circumstances of the incident.

Particular 17(b)(vi)

88. Question 24 does not arise for the reasons stated in [84] above.

Causation

89. If I am required to reconsider my findings as to the breach of duty and determine that the defendant was in breach of its section 19(1) duty by failing to take the measures particularised in [16] and [17] of the Amened Summons, then I would have to reconsider my findings on causation.

90. Questions 25 and 26 introduce concepts that do not appear in the Act and are based on premises that do not arise from the findings and I consider them to be of no utility.

91. I would restate the questions as follows:

Are the findings in [301]-[306] relevant to determining if the failure to take the measures pleaded in [16] and [17] of the Amended Summons were a significant or substantial cause of Mr Hern being exposed to the pleaded risk?

Conclusion

92. For the reasons given, I refuse to state the questions put forward by the prosecutor set out in Appendix A to this judgment.

93. For the reasons given, I am satisfied that the questions set out in Appendix B to this judgment are questions of law and should be stated to the Court of Criminal Appeal.

Orders

94. The orders I make are as follows:

1. I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.

2. I direct that the prosecutor provide the stated case to my Associate on or before 5 pm on 7 February 2020.

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APPENDIX A

A. Particular 14 - Pleaded Risk

1. When I found at [204] of the Judgment that ‘in order for the pleaded risk to arise it was necessary for Mr Hern to get into the water in the course of undertaking his duties, either deliberately or accidentally’ was I correct in law?

a. Ought I to have found as a matter of construction or interpretation that the pleaded risk arose before any person entered the water?

b. Ought I to have found that the pleaded risk arose from the time that the sump was deliberately blocked without any plan having been made in the form of a JSA or a safe work method or statement recording a safe method of removing the blockage in the event that that the sump contained a large volume of water?

2. Was it in law open to me to find at [204] of the Judgment that ‘in order for the pleaded risk to arise it was necessary for Mr Hern to get into the water in the course of undertaking his duties, either deliberately or accidentally’ having regard to the evidence of the circumstances that:

a. there were no planning documents created for the purpose of managing water at the CSA Mine prior to 11 June 2014;

b. there were no documented management plans or procedures relevant to working in or around water filled sumps at the CSA Mine on 11 June 2014;

c. there were no documented management plans relevant to the work of unblocking sump drain holes in circumstances where they had been deliberately blocked, on or before the date of the incident;

d. the Defendant had been aware from mid-June 2013 that there was only one operable rising main in existence between its primary pump station, the 8855 Pump Station, and the 11 Level Pump Station, due to a breakage in the No.1 Rising Main at the 9100 Level of the CSA Mine;

e. as at June 2014, that there was only one operable Wilson Snyder pump at the 8855 Level Pump Station, and that those pumps were prone to breakdown which could result in large volumes of water reporting to the 8820 North sump;

f. there was no assessment of the changes involved in the 8670 Pump Station Project in accordance with the provisions of the Change Management Procedure;

g. no JSA or Risk Assessment was created for the implementation of the 8670 Pump Station Project;

h. there was no documented system or procedure that provided instruction to workers in relation to safe work practices regarding the management and maintenance of underground sumps, including in relation to the blocking and unblocking of sumps and sump drain holes generally in the CSA Mine;

i. no JSA or Risk Assessment was created for the task of blocking and unblocking of the 8820 North sump drain hole prior to the drain hole being deliberately blocked on 8 June 2014?

3. Did I apply the incorrect legal principle as to the test in relation to the foreseeability of a risk when I found at [226] of the Judgment that ‘I was not satisfied that a worker would enter the water or fall into large volumes of water in the mine where there was a risk of submersion’ having regard to the evidence of the circumstances were (references are to paragraph numbers in the Judgment):

j. strainers and drain holes occasionally became blocked with mud and other debris, including plastic fibres, causing water to build up in sumps [71];

k. sump drain holes could become completely blocked by a combination of dirt and rock, and a number of methods were used by workers to remove any blockages [75];

l. workers would use a number of methods to reduce the depth of the water before using one of the methods to unblock the drain hole [76];

m. workers would have to approach a drain hole to clear a strainer when the water at the drain hole was above gumboot height [15];

n. the water level in a sump could be high [79];

o. it was occasionally necessary to block sump drain holes deliberately so that work could be undertaken on the level beneath the sump [80];

p. various methods were used to deliberately block sump drain holes [80];

q. there were occasions where workers were required to unblock sump drain holes in circumstances where the water level in the sump was above gumboot height [226];

r. there was no documented safe work procedure as to the means by which workers were to unblock sump drain holes in circumstances where the water level in the sump was above gumboot height;

s. it was possible that a worker may enter the water or fall into it [226];

t. the Wilson Snyder pumps on the 8855 Level were prone to failure and that the sump on the 8855 Level drained via a drain hole to the 8820 North sump [17];

u. the 8820 North sump drain hole was blocked on 8 June 2014 [89];

v. that on 10 June 2014 the Defendant was aware that he 8820 North sump was completely full and overflowing to lower levels [97];

w. the volume of water in the 8820 North sump was unprecedented [97];

x. the Wilson Snyder pump on the 8855 Level had failed and that the water in the sump on the 8855 Level was draining via the drain hole to the 8820 North sump [97];

y. the volume of water flowing into the 8820 North sump was too much for the pump in the sump to handle [98];

z. Mr Russell was sufficiently concerned about the water level in the 8820 North sump to direct that chain be placed in front of the 8820 North sump along with a sign containing the words “Danger authorised persons only” [108];

aa. The water depth at the drain hole of the 8820 North sump was at about chest height on Mr Hern [154]?

4. Was I required as a matter of law, when considering the foreseeability of the pleaded risk at [226] of the Judgment, to have regard to whether the evidence demonstrated that there were circumstances in which a worker could be exposed to the pleaded risk?

B.   Particular 16 – Reduction of the depth of the water

5. Did I apply the correct legal principles as to the test in relation to whether a pleaded measure was reasonably practicable, when I found at [254] of the Judgment that the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure, in light of my findings that (references are to paragraph numbers in the Judgment):

a. on 10 June 2014 Mr Patten believed that reducing the water level in the 8820 North sump was a matter of some urgency [98];

b. on 11 June 2014 Mr Chaplain believed the best option was to pump the water out of the 8820 North sump before attempting to unblock it [116];

c. Mr Chaplain, Mr Cownie and Mr McMillan agreed that there was a need to reduce the volume of water in the 8820 North sump before unblocking it and that they agreed that the best option would be for the water to be pumped out of the 8820 North sump and down the decline, if necessary [117];

d. Mr Cownie told to Mr Howard that the water level in the 8820 North sump was too high and needed to be pumped out [126];

e. Mr Cownie told Mr McMillan that they might have to put a pump in the 8820 North sump to get rid of the water [127];

f. the “Management of Underground Sumps” document (the Sump Procedure) required workers to reduce the volume of water in a sump before working in, around and under sumps [166];

g. The Sumps Procedure provided that a pump should be installed to reduce the water before attempting to unblock drain holes with high water [166];

h. reducing the depth of the water was a way of eliminating or minimising the pleaded risk [244];

i. the consensus of the evidence was that the water level should have been reduced by pumping water out of the sump before attempting to unblock the drain hole [244];

j. Mr McMillan may have required Mr Hern to reduce the water level as the first step of a JSA because that process had been discussed amongst supervisory staff [262];

k. pumping water out of the sump before attempting to unblock the drain hole would have dealt with the water in a controlled way, avoiding a subsequent hazard [244];

l. pumping water out of the sump before attempting to unblock the drain hole could have been done with the available pumps in the mine [245];

m. the placing pumps in sumps was a usual task and done often by service crews using an ITC and had been done by Mr Hern and Mr Booth on the night of the incident [246];

n. there was no cost to the defendant in reducing the water level in the sump before unblocking the drain hole [247]?

6.Did I apply the correct legal principles as to the test in relation to whether the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure, when I found at [249] of the Judgment that the pleaded measures would not eliminate the pleaded risk?

7.When I dealt with the measure pleaded in [16] of the Amended Summons and found at [249] of the Judgment that this measure would not have eliminated the pleaded risk, should I have found that the measure would have minimised the pleaded risk?

C.   Particular 17(a) - Safe System of Work- JSA

8. Did I apply the correct legal principle as to the test in relation to whether a pleaded measure was reasonably practicable, when I found at [263] of the Judgment that the measure pleaded in [17](a) of the Amended Summons was not reasonably practicable, in that I did not consider the prosecution case that a JSA should have been prepared at the time of, or prior to, the blocking of the drain hole?

9. Did I apply the correct legal principles as to the test in relation to whether a pleaded measure was reasonably practicable, when I found at [263] of the Judgment that the measure pleaded in [17](a) of the Amended Summons was not a reasonably practicable measure, in light of my finding at [256] of the Judgment that it was common ground that JSA should have been prepared because the unblocking of the drain hole was a Non-Standard Job as defined in the JSA Procedure?

10. Was it open to me to find that that the measure pleaded in [17](a) of the Amended Summons was not a reasonably practicable measure, in light of my findings that (references are to paragraph numbers in the Judgment):

o. it was common ground that a JSA should have been prepared because the unblocking of the drain hole was a Non-Standard Job as defined in the JSA Procedure [256];

p. the terms of the JSA procedure required workers to ensure that they conducted JSAs when required by the JSA Procedure and supervisors to ensure that workers conducted JSAs when required to do so by the JSA Procedure [257]

q. the supervisor should have required one to have been completed [261];

r. the supervisor would have required the workers to complete a JSA if he had attended at the sump [261];

s. Mr McMillan may have required Mr Hern to reduce the water level as the first step of a JSA because that process had been discussed amongst supervisory staff [262]?

11. Did I apply the correct legal principles as to the test in relation to whether a pleaded measure was reasonably practicable, when I found at [263] of the Judgment that the measure pleaded in [17](a) of the Amended Summons was not a reasonably practicable measure, by not having regard to the matters set out in s.18 of the Act as to whether a measure is a reasonably practicable one?

D.   Particular 17(b) - Safe System of Work- SWP

12. Did I apply the correct legal principles as to the test in relation to whether a pleaded measure was reasonably practicable, when I found at [263] and [285] of the Judgment that the measurement pleaded in [17](b) of the Amended Summons was not a reasonably practicable measure, by not having regard to the matters set out in s.18 of the Act as to whether a measure is a reasonably practicable one?

13. Did I apply the correct legal principles as to the test in relation to whether the preparation of a safe work procedure for the blocking and unblocking of sump drains was a reasonably practicable measure in light of my findings at [166] – [170] of the Judgment as to the development of the Sump Procedure?

E.   Particular 17(b)(i) – Adequate work procedure- Requirement for a Risk Assessment before blocking drain holes

14. Was it open to me to find at [279] of the Judgment that the element of the measure pleaded in [17](b)(i) of the Amended Summons was not reasonably practicable, in circumstances where I did not consider or adequately consider whether it was reasonably practicable for a risk assessment to be undertaken at the time the decision was made to block the drain hole?

15. Did I apply the correct legal principles as to the test in relation to whether the element of the measure pleaded in [17](b)(i) of the Amended Summons was reasonably practicable, when I found at [279] of the Judgment that I was not satisfied that had a prospective risk assessment been undertaken that it would have identified the matters that led to the accumulation of a large volume of water in the sump?

16. Did I apply the correct legal principles as to the test in relation to whether the element of the measure pleaded in [17](b)(i) of the Amended Summon was reasonably practicable, when I found at [279] of the Judgment that it was not a reasonably practicable measure, by not having regard to the matters set out in s.18 of the Act as to whether a measure is a reasonably practicable one?

F.   Particular 17(b)(ii) - Adequate work procedure- Requirement for a Risk Assessment before unblocking drain holes

17. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(ii) of the Amended Summons was a reasonably practicable measure in that in my consideration of this element at [280] of the Judgment I focused on whether this element of a work procedure, had it been applied on the day of the Incident, would have led to a different outcome in relation to the Incident, rather than whether it was an element of a work procedure that was reasonably practicable for the defendant to implement prior to the date of the Incident?

18. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(ii) of the Amended Summons was a reasonably practicable measure when I dealt with the issue of whether this element of a work procedure would have led to a different outcome rather than eliminated or reduced the pleaded risk?

19. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(ii) of the Amended Summons was a reasonably practicable measure, in light of my finding at [256] of the Judgment that it was common ground that a form of risk assessment (JSA) should have been prepared because the unblocking of the drain hole was a Non-Standard Job as defined in the JSA Procedure?

20. Was it open to me to find that that the measure pleaded in [17](b)(ii) of the Amended Summons was not an element of a reasonably practicable measure, in light of my findings that (references are to paragraph numbers in the Judgment):

t. it was common ground that a JSA should have been prepared because the unblocking of the drain hole was a Non-Standard Job as defined in the JSA Procedure [256];

u. the terms of the JSA procedure required workers to ensure that they conducted JSAs when required by the JSA Procedure and supervisors to ensure that workers conducted JSAs when required to do so by the JSA Procedure [257];

v. the supervisor should have required one to have been completed [261];

w. the supervisor would have required the workers to complete a JSA if he had attended at the sump [261];

x. Mr McMillan may have required Mr Hern to reduce the water level as the first step of a JSA because that process had been discussed amongst supervisory staff [262]?

G.   Particular 17(b)(iii) - Adequate work procedure- reduction of the volume of water

21. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(iii) of the Amended Summons was reasonably practicable in that in my consideration of this element at [281] of the Judgment I focused on whether this element of a work procedure, could have been implemented on the day of the Incident, rather than whether it was an element of a work procedure that was reasonably practicable for the defendant to have implemented prior to the date of the Incident?

H.   Particular 17(b)(iv) - Adequate work procedure- installation of pump to reduce the water level

22. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(iv) of the Amended Summons was a reasonably practicable measure in that in my consideration of this element at [281] of the Judgment I focused on whether this element of a work procedure, could have been implemented on the day of the Incident, rather than whether it was an element of a work procedure that was reasonably practicable for the defendant to have implemented prior to the date of the Incident?

I.   Particular 17(b)(v) - Adequate work procedure- prohibition on workers entering sumps

23. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(v) of the Amended Summons was a reasonably practicable measure in that in my consideration of this element at [282] of the Judgment I focused on whether it was foreseeable on the day of the Incident that workers would enter the water, rather than whether it was an element of a work procedure that was reasonably practicable for the defendant to have implemented prior to the date of the Incident?

J.   Particular 17(b)(vi) - Adequate work procedure- using integrated tool carrier

24. Did I apply the correct legal principle as to the test in relation to whether the element of the measure pleaded in [17](b)(vi) of the Amended Summons was a reasonably practicable measure in that in my consideration of this element at [283] of the Judgment I focused on the fact that the element of the work procedure was already part of an existing procedure, rather than whether it was an element of a work procedure that was reasonably practicable for the defendant to have implemented prior to the date of the Incident?

K.   Element 4 – Causation

25. Did I apply the correct legal principle as to the test in relation to whether the failure on the part of the defendant to implement any or all pleaded measures in [16] and [17] of the Amended Summons was a causally related to the exposure of Mr Hern to the pleaded risk, in that in my consideration of this element at [304] of the Judgment I focused on the specific risk that manifested in the Incident and Mr Hern’s contribution to his being exposed to the risk rather than the general class of risk and whether the particularised omissions were a significant or substantial cause of Mr Hern being exposed to the risk of injury?

26. Did I apply the correct legal principle as to the test in relation to whether the failure on the part of the defendant to implement any or all pleaded measures in [16] and [17] of the Amended Summons was or were causally related to the exposure of Mr Hern to the pleaded risk, in that in my consideration of this element at [304] of the Judgment I focused on whether the particularised failures of the defendant were the cause of the injury to Mr Hern, rather than whether there was a causal relation between the pleaded omissions and the risk to which Mr Hern was exposed?

Appendix B

1. Did I have the power to state the following questions of law pursuant to section 5AE Criminal Appeal Act 1912?

2.   Was it open for me to find at [254], on the facts as found, that the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure?

3.   Was it open for me to find at [263], on the facts as found, that the measure pleaded in [17(a)] of the Amended Summons was not a reasonably practicable measure?

4. Did I fail to apply section 18 Work Health and Safety Act 2011 in [264]-[285] of the judgment?

5.   Was it open for me to find at [285], on the facts as found, that the measure pleaded in [17(b)] of the Amended Summons was not a reasonably practicable measure?

6.   Was my finding at [281], relevant to determining if the measure pleaded at [17](b) of the Amended Summons was reasonably practicable?

7.   Are the findings in [301]-[306] relevant to determining if the failure to take the measures pleaded in [16] and [17] of the Amended Summons were a significant or substantial cause of Mr Hern being exposed to the pleaded risk?

Endnote

Amendments

11 February 2020 - Formatting error

Decision last updated: 11 February 2020