Whiteley v Stone

[2021] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:

Whiteley v Stone & Anor [2021] QSC 31

PARTIES:

NEVILLE WHITELEY

(applicant)

v
MARK STONE

(respondent)
and
ATTORNEY-GENERAL OF QUEENSLAND
(intervenor)

FILE NO/S:

10089/2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2021

JUDGE:

Dalton J

ORDER:

The application for judicial review is dismissed.

COUNSEL:

A Scott for the applicant
M Hickey with S Gibson for the respondent
F Nagorcka for the Attorney-General

SOLICITORS:

DWF for the applicant
Resources Safety & Health Queensland for the respondent
Crown Law for the Attorney-General

1. This is an application under Part 5 of the Judicial Review Act1991 (Qld) (JRA). At all relevant times the respondent was the Executive Director of Resources Safety & Health, a division of the Department of Natural Resources, Mines and Energy. In that capacity he had statutory authority under the Coal Mining Safety and Health Act1999 (Qld) (CMSHA) to cancel certificates of competency issued under s 197B of the CMSHA in certain circumstances. By letter dated 18 June 2020 the respondent advised the applicant that he had made a decision to cancel the applicant’s certificate of competency. The applicant asks that this Court declare the respondent’s decision to be of no force or effect.

2. The respondent cross-applies asking that the applicant’s application be dismissed pursuant to ss 12, 13 or 48 of the JRA.  The respondent says that provision is made for appeal to the Industrial Magistrates Court from a decision cancelling a certificate of competency; the applicant should pursue that statutory route rather than invoke this Court’s jurisdiction under the JRA.  In my view the respondent should succeed on this contention.  I will give my reasons for that decision.

3. The CMSHA has objects to protect the safety and health of persons at coal mines – s 6.  It does this, inter alia, by imposing obligations on persons who operate coal mines.  It contemplates that regulations and recognised standards for the coal mining industry will be made – s 7.

4. The CMSHA provides that an open cut coal mine operator must appoint a person holding an open cut examiner’s certificate of competency to carry out various responsibilities and duties prescribed by Regulation – s 59(1).  The applicant held an open cut examiner’s certificate of competency and as at June 2019 was appointed to the Middlemount coal mine.

5. On 5 June 2019 the applicant was the nightshift examiner.  On that nightshift pre-split holes were drilled on an area of work referred to as the Eastern Echelon.  It seems these holes were preparatory to blasting work which later took place.  On 22 June 2019 the applicant was the examiner on duty when one of the miners raised a safety concern with him concerning a hang-up hazard in that area.  Apparently the blast had not brought down the entirety of the intended material, some of it was hung-up above the area where miners were working.  The applicant says that in response…