Select Civil (Kiama) Pty Ltd v Kearney

Court of Appeal

New South Wales

Case Title:

Select Civil (Kiama) Pty Ltd v Kearney

Medium Neutral Citation:

[2012] NSWCA 320

Hearing Date(s):

11 September 2012

Decision Date:

05 October 2012

Jurisdiction:

Before:

Allsop P at [1]; 
Macfarlan JA at [2]; 
Tobias AJA at [25]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WORKERS COMPENSATION - worker injured whilst undertaking site rehabilitation at a coal mine where operations had been discontinued - whether worker was a "coal miner" for the purpose of Pt 18 Clause 3(1) of Schedule 6 to the Workers Compensation Act 1987 - whether site of employment was a "mine" to which the Coal Mines Regulation Act 1982 applied - whether mine had been abandoned - whether rehabilitation of site occurred "in connection with mining" for the purpose of the definition of "mine" in s 5(1)

Legislation Cited:

Coal Mine Health and Safety Act 2002
Coal Mines Regulation Act 1982
Workers Compensation Act 1987
Workers Compensation Legislation Further Amendment Act 2001

Cases Cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
Cudgen R.Z. Ltd v Valuer-General (1974) 1 NSWLR 81 and (1974) 2 NSWLR 75
Re his Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161
Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638

Texts Cited:

The Macquarie Dictionary, 5th ed (2009)

Category:

Principal judgment

Parties:

Select Civil (Kiama) Pty Ltd (Appellant)
Michael Kearney (Respondent)

Representation

- Counsel:

Counsel:
I D Roberts SC/P J Menary (Appellant)
H N Kelly SC/T F McKenzie (Respondent)

- Solicitors:

Solicitors:
DLA Piper Australia (Appellant)
Taylor & Scott Lawyers (Respondent)

File number(s):

CA 2009/338134

Decision Under Appeal

- Court / Tribunal:

- Before:

McLoughlin DCJ

- Date of Decision:

15 June 2011

- Citation:

Michael Kearney v Select Civil (Kiama) Pty Ltd

- Court File Number(s)

DC 2009/5108

Publication Restriction:

JUDGMENT

1. ALLSOP P: I agree with Macfarlan JA.

2. MACFARLAN JA: On 10 April 2006 Mr Michael Kearney, the respondent, was injured in the course of his employment by the appellant as a labourer at Kemira Colliery near Wollongong. The colliery operated as an underground coal mine between 1848 and 1991. Its two tunnels and four shafts were sealed in 1995. In June 2003 the Department of Primary Industries approved a Rehabilitation Master Plan for the site. Rehabilitation was necessary to enable Illawarra Coal Holdings Pty Ltd, the holder of a mining lease over the site, to relinquish the lease. That company engaged the appellant to carry out site rehabilitation and associated work including "[p]lacement and maintenance of erosion and sedimentation control measures". Mr Kearney was…