Romanski v Stone (No 2)

Case [2025] ICQ 19

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Romanski v Stone (No 2) [2025] ICQ 019

PARTIES:

MAREK ROMAN ROMANSKI

(appellant/applicant)
v
MARK DOUGLAS STONE

(respondent)

FILE NO:

C/2024/20

PROCEEDING:

Application

DELIVERED ON:

17 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2025

MEMBER:

Davis J, President

ORDERS:

It is ordered that:

1.    Industrial Magistrate Joseph Pinder is joined as a respondent to the application for prerogative relief filed in the appeal proceedings.

2.    Service of the application for prerogative relief upon Industrial Magistrate Pinder is dispensed with.

It is declared that:

1.    The jurisdiction of the Industrial Magistrates Court under s 236A of the Coal Mining Safety and Health Act 1999 is to determine whether Mr Romanski’s certificates should be cancelled by considering whether each ground alleged in the notice of proposed action is established by the facts and circumstances outlined in the notice of proposed action to support each ground, and any submissions made by Mr Romanski pursuant to s 197B of the Coal Mining Safety and Health Act 1999.

2.    In deciding the application to strike out parts of the respondent’s statement of contentions, the Industrial Magistrate wrongly ruled that on review of the cancellation of the certificates he should embark upon consideration of all the facts and circumstances alleged in the statement of contentions and so acted beyond jurisdiction.

3.    In particular, in the Industrial Magistrate’s consideration of Ground 4, the following is beyond jurisdiction:

(a)     The presence of methane.

(b)     The presence of any “spontaneous combustion indicators” except ethylene and carbon monoxide.

(c)     Any act of Mr Romanski, in particular but not exhaustively, any act by Mr Romanski to cause workers to go underground.

(d)     Any omission of Mr Romanski other than the failure to withdraw the mine workers on 28 August 2018.

(e)     Any reason to withdraw workers from underground apart from the presence of ethylene and rising carbon monoxide levels.

(f)     Explosibility.

(g)     Any circumstances arising before or after 28 August 2018.

(h)     Any failure of Mr Romanski to act upon the email of 12.35 pm on 28 August 2018.

(i)     Any failure of Mr Romanski to undertake appropriate risk assessments.

It is further ordered:

1.    The applicant file and serve written submission on costs by 4.00 pm on 24 September 2025.

2.    The respondent file and serve written submissions on costs by 4.00 pm on 1 October 2025.

3.    The applicant file and serve written submissions on costs in reply by 4.00 pm on 8 October 2025.

4.    Each party have liberty to file and serve, by 4.00 pm on 15 October 2025, a notice of intention to make oral submissions as to costs.

5.    In the absence of the filing and service of any notice of intention to make oral submissions on costs, costs will be determined on any written submissions without further oral hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – SCOPE AND EFFECT OF APPEAL – where the respondent cancelled competency certificates…

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AGLC
Romanski v Stone (No 2) [2025] ICQ 19
Case
[2025] ICQ 19
Decision Date

CaseChat Overview and Summary

Romanski v Stone (No 2) involved a dispute between Mr Romanski and Mr Stone over the cancellation of Mr Romanski's competency certificates under the Coal Mining Safety and Health Act 1999 (CMSHA). The case focused on the scope of an appeal from a decision by Mr Stone to the Industrial Magistrates Court and whether the Industrial Magistrate had the jurisdiction to consider matters beyond those outlined in the prescribed statutory documents. The legal issues included the nature of the appeal, the scope of the Industrial Magistrate's jurisdiction, and whether the Industrial Magistrate's consideration of matters beyond the statutory documents was beyond their jurisdiction. The court examined whether the Industrial Magistrate was correct in considering matters not explicitly outlined in the notice of proposed action and the response given by Mr Romanski. The court concluded that the Industrial Magistrate had erred in considering matters beyond the prescribed statutory documents, which limited the scope of their jurisdiction.

The court held that the Industrial Magistrate's jurisdiction was confined to considering only the grounds for cancellation as outlined in the notice of proposed action and the response given by Mr Romanski. The appeal was to be conducted de novo, meaning the Industrial Magistrate had to stand in the shoes of Mr Stone and decide the question afresh, but within the confines of the statutory process. The court found that the Industrial Magistrate had acted beyond their jurisdiction by considering extraneous facts and circumstances that were not part of the prescribed statutory process. The court further clarified that the Industrial Magistrate should only consider the grounds for cancellation as explicitly stated in the notice of proposed action and the response, and any other matters would be beyond their jurisdiction. The court's decision underscored the importance of adhering to the statutory framework in administrative law proceedings.

Orders

Orders of the court

It is ordered that:

1. Industrial Magistrate Joseph Pinder is joined as a respondent to the application for prerogative relief filed in the appeal proceedings.

2. Service of the application for prerogative relief upon Industrial Magistrate Pinder is dispensed with.

It is declared that:

1. The jurisdiction of the Industrial Magistrates Court under s 236A of the Coal Mining Safety and Health Act 1999 is to determine whether Mr Romanski’s certificates should be cancelled by considering whether each ground alleged in the notice of proposed action is established by the facts and circumstances outlined in the notice of proposed action to support each ground, and any submissions made by Mr Romanski pursuant to s 197B of the Coal Mining Safety and Health Act 1999.

2. In deciding the application to strike out parts of the respondent’s statement of contentions, the Industrial Magistrate wrongly ruled that on review of the cancellation of the certificates he should embark upon consideration of all the facts and circumstances alleged in the statement of contentions and so acted beyond jurisdiction.

3. In particular, in the Industrial Magistrate’s consideration of Ground 4, the following is beyond jurisdiction:

(a) The presence of methane.

(b) The presence of any “spontaneous combustion indicators” except ethylene and carbon monoxide.

(c) Any act of Mr Romanski, in particular but not exhaustively, any act by Mr Romanski to cause workers to go underground.

(d) Any omission of Mr Romanski other than the failure to withdraw the mine workers on 28 August 2018.

(e) Any reason to withdraw workers from underground apart from the presence of ethylene and rising carbon monoxide levels.

(f) Explosibility.

(g) Any circumstances arising before or after 28 August 2018.

(h) Any failure of Mr Romanski to act upon the email of 12.35 pm on 28 August 2018.

(i) Any failure of Mr Romanski to undertake appropriate risk assessments.

It is further ordered:

1. The applicant file and serve written submission on costs by 4.00 pm on 24 September 2025.

2. The respondent file and serve written submissions on costs by 4.00 pm on 1 October 2025.

3. The applicant file and serve written submissions on costs in reply by 4.00 pm on 8 October 2025.

4. Each party have liberty to file and serve, by 4.00 pm on 15 October 2025, a notice of intention to make oral submissions as to costs.

5. In the absence of the filing and service of any notice of intention to make oral submissions on costs, costs will be determined on any written submissions without further oral hearing.

Background

Background to the litigation

Therefore, independently of any avenue of appeal, this Court, when constituted by the President, has the power of prerogative review of decisions made in the Industrial Magistrates Court.Background In 2018, Mr Romanski was the Underground Mine Manager at North Goonyella Coal Mine. On 28 August 2018, there was an incident at the coal mine and an investigation was undertaken. On 28 June 2021, Mr Stone sent Mr Romanski a letter. That letter was styled “Notice of Proposed Action”. Section 197B(2) of the CMSHA[8] describes such a notice as a “proposed action notice”.[8]Set out at paragraph [12] of these reasons. In the proposed action notice, Mr Stone records various facts and then says: “As contemplated by s 197B(1) of the Act,[9] I consider there are grounds to cancel your certificates of competency, because I have formed the preliminary view that you have contravened the following safety and health obligations”. What follows are particulars of four alleged breaches of safety and health obligations. Each of those are “grounds” for the purposes of s 197A.They are set out below. The ground which is directly relevant to the current application is ground 4; the one underlined: “Failing to conduct an appropriate risk assessment for the sealing of 9 North Longwall, in contravention of s39(1)(a) of the Act;[10]Not applying the sealing management plan acknowledged by Regional Inspector Leslie Marlborough, in contravention of s39(1)(a) of the Act and s327(2) of the Coal Mining Safety and Health Regulation 2017 (“the Regulation”);[11]Changing the proposed method of sealing for the Mine, described in the 9 North Longwall sealing management plan acknowledged by regional Inspector Leslie Marlborough, in contravention of s39(1)(a) of the Act and s328(2) of the Regulation;[12]Not withdrawing workers to the surface on 28 August 2018 upon the detection of ethylene and conducting an IMT, being a reasonable and necessary course of action, in contravention of s39(1)(c) of the Act.”[13] (emphasis added)[9]A reference to the Coal Mining Safety and Health Act 1999.[10]Which I will call “ground 1”.[11]Which I will call “ground 2”.[12]Which I will call “ground 3”.[13]Which I will call “ground 4”. After identifying the four grounds, the proposed action notice outlines the facts and circumstances upon which Mr Stone’s preliminary view was formed. They are as follows. The facts and circumstances which seem relevant to ground 4 are underlined:“The facts and circumstances upon which I have formed my preliminary view are as follows:1At all relevant times, you were the underground mine manager at North Goonyella Coal Mine (attachment B).2Your obligations – under NGC-HST-MMS-002 Responsibilities and Competencies, as the underground mine manager at North Goonyella Coal Mine - included ‘control and manage the underground workings with a particular emphasis on the identification of hazards associated with the operations and the control of the risks, to an acceptable standard, and as low as is reasonably achievable’ (attachment C).3North Goonyella Coal Mine has a history of spontaneous combustion events (attachment D).4Spontaneous combustion is a known hazard at North Goonyella Coal Mine. It is managed by way of NGC-S&H-PHMP-004 Spontaneous Combustion, a Principal Hazard Management Plan, which was created after a risk assessment was conducted. Known risks, such as spontaneous combustion, are recorded in the Underground Risk Register. (attachment E).5The process for conducting risk assessments at North Goonyella Coal Mine is contained within NG-SAH-PRO-GN-004 Risk Management (attachment F).6On 23 May 2018, a risk assessment was conducted into the proposed method of sealing 9 North Longwall at North Goonyella Coal Mine (attachment G). You were a participant in that process.7The proposed method of sealing included a specified sequence of Trigger Action Response Plans (‘TARPs’) to be applied to determine alarm levels and trigger actions for all gas monitoring data during the process of sealing the 9 North Longwall,8The risk assessment did not consider the principal hazard of spontaneous combustion, specifically:(a)TARP-019 would not be able to be reliably triggered after the construction of the first seal at the tailgate;(b)TARP-036 placed an emphasis on explosibility until a level 4 TARP was reached;(c)The need for a longwall move TARP that was tailored for the circumstances of the move, given that the longwall had been stationary for a period of time. (attachment H)9On 29 May 2018, you approved the sealing management plan, notwithstanding its failure to consider the principal hazard of spontaneous combustion at North Goonyella Coal Mine.10On 19 June 2018, you provided Regional Inspector Marlborough with a ‘Notice of intention to seal a part of a coal mine’, namely, 9 North Longwall, accompanied by a plan entitled ‘9N LW Sealing Management Plan’, in compliance with s326 of the Regulation (attachment I).11On 20 June 2018, you provided to Industrial Safety and Health Representative Stephen Woods, a copy of a document titled 9N LW Sealing Management Plan (‘SMP #1’) (attachment J).12Between 19 June 2018 and 12 July 2018, Regional Inspector Marlborough received two further drafts of the sealing management plan. He acknowledged the third draft of the sealing management plan (‘SMP #2’) and uploaded it to the Inspectorate's internal database. (attachment K).13On 12 July 2018, Regional Inspector Marlborough issued an ‘Acknowledgement of the Notice of Sealing of the Part of the Mine Known as 9 North Longwall’, pursuant to s327(l)(b) of the Regulation (attachment L).14During the course of the subsequent investigation, conducted by Inspector Paul Brown, he obtained a copy of the sealing management plan that applied at North Goonyella Coal Mine (‘SMP #3’) (attachment M).15SMP #1 and SMP #3 were identical in content. SMP #2 was different in content from SMP #1 and #3 in certain respects.16SMP #1, SMP #2 and SMP #3 all were identical in respect to the sealing sequence and TARP sequencing.17All versions of the SMP divided the sealing sequence of 9 North Longwall into five stages; Preparation; installation of hatched seal S1; construction of seal S2; construction of seals S3, S4 and S5; and final sealing (closing of the hatch on seal S1).18All versions of the SMP provided for a specified sequence of Trigger Action Response Plans (‘TARPs’) to be applied to determine alarm levels and trigger actions for all gas monitoring data during the process of sealing the 9 North Longwall.19All versions of the SMP required the TARPs to be applied in the following sequence:(a)Pre-sealing: TARP-019 and TARP-025 (attachment N);(b)Final sealing process: TARP-036 (attachment 0); and(c)After sealing: TARP-007 (attachment P).20All versions of the SMP specified the point of transition from TARP-019 and TARP-025 to TARP-036, at stage 5 of sealing, as follows:“Once the MG9N 2ct seal is constructed the relevant TARP will change from ‘TARP 019 9N LW Production & TARP 025 General Body Gas Levels’ to ‘TARP-036 - 9 North Transition to Final Sealing”.21Further, TARP-036 itself provided:“This TARP takes effect from when the final sealing process is enacted in accordance with the 9North Sealing Management Plan ...”22At 7:39pm on 21 August 2018, you sent an email with the subject ‘LW9 Sealup TARPS Numbers’ to an email group, ‘DL-AU_NGC_Control’, comprising Control Room Operators (‘CROs’) (attachment Q). Your email directed CROs to commence applying TARP-036 in these terms: ‘We have connected tubes now to goaf stream therefore transition TARP can be used from now on’. The email attached a diagram depicting TARP-036 as the ‘Transition’ TARP.23You did not give notice to an inspector, or an Industry or Site Safety and Health Representative, of any changes to the proposed method of sealing described in the SMP (attachment R).24The effect of applying TARP-036 instead of TARP-019 was that there needed to be significantly higher indicators of spontaneous combustion present before an evacuation was triggered under TARP-036.25North Goonyella Coal Mine obtained reports from experts that indicated that if ethylene was present in the goaf stream sample, it meant that coal in the goaf had reached in excess of 100C, consistent with thermal runaway, and regaining control of the situation would be unlikely. (attachment S).”26On 28 August 2018 ethylene was detected in the goaf stream and carbon monoxide make was increasing. Ethylene continued to be detected during the next four days, and carbon monoxide was consistently in excess of the TARP-019 evacuation trigger for carbon monoxide make (attachment T).27You were told about the presence of ethylene and carbon monoxide (attachment U).28Workers should have been withdrawn to the surface on 28 August 2018, due to the rising carbon monoxide make and presence of ethylene, and an Incident Management Team (IMT) should have been called to manage the spontaneous combustion.29Workers remained underground until the afternoon of 1 September 2018 (attachment V).30An IMT was not called until 2:07pm on 3 September 2018. (Attachment W).” (emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

After Deputy President Hartigan’s decision on the appeal was published, a formal application for prerogative relief was filed. That is the application before me.The Industrial Magistrate’s decision The learned Industrial Magistrate gave detailed reasons for dismissing the strike out application. His Honour referred to various provisions of the CMSHA, including s 240, and his Honour followed a decision of Martin J, then President of this Court, in Dalliston v Taylor & Anor.[19][19](2015) ICQ 017. In Dalliston, the President considered the nature of an appeal to an Industrial Magistrate from a decision made under s 167 of the CMSHA. That appeal was made pursuant to s 246, which is in similar terms to s 240(2)[20] His Honour was faced with an apparent contradiction. Conventionally, an appeal “by way of rehearing” defines a different extent of appellate review than the term “unaffected by the original decision-maker’s decision”, which suggests a hearing de novo.[21] Both terms are used in ss 240 and 246 to describe the nature of the appeal. His Honour concluded:“The exercise I must embark on requires that I stand in the shoes of the Chief Executive and exercise the power afresh.”[22][20]Section 240 is set out at paragraph [15] of these reasons.[21]Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.[22]Dalliston v Taylor & Anor [2015] ICQ 017 at [14]. The Industrial Magistrate in the present case followed Dalliston and concluded:“Upon consideration of s 240 – Hearing Procedures, and the far broader powers that it confers upon the court and consistent with the approach of Martin J in Dalliston (supra) the court is not restricted to consideration, upon the hearing and determination of this appeal, strictly to the expressly articulated grounds of the respondent (as original decision maker) in the show cause notice and decision.” The Industrial Magistrate has, with the greatest respect, not come to grips with the real point of the strike out application. The function of the Industrial Magistrate on appeal was, as he found, to reconsider Mr Stone’s decision de novo. To do that he would have to stand in the shoes of Mr Stone and decide the question which was posed to Mr Stone. That was the question defined by the procedure that had been undertaken pursuant to Part 10A of the CMSHA. The questions before the Industrial Magistrate were, firstly, as to the scope of the issues which that procedure identified in Mr Romanski’s case and then, secondly, whether the Industrial Magistrates Court, upon an appeal, had jurisdiction to undertake an enquiry beyond those boundaries. By determining, rightly, that the appeal was a hearing de novo, but not deciding what he had to rehear afresh, the Industrial Magistrate has erred for reasons explained later. An appeal was lodged against the Industrial Magistrate’s decision, alleging these grounds:“1.The Industrial Magistrate has erroneously asserted the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent.2.The Industrial Magistrate has misconstrued the Coal Mining Health and Safety Act 1999 to erroneously assert the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent.”

Ratio Decidendi

Legal Principle Established

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