Young Mining Company Pty Ltd v State of New South Wales

[2023] NSWSC 582

Supreme Court

New South Wales

Medium Neutral Citation:	Young Mining Company Pty Ltd v State of New South Wales [2023] NSWSC 582
Hearing dates:	26 May 2023
Date of orders:	29 May 2023
Decision date:	29 May 2023
Jurisdiction:	Common Law
Before:	Garling J
Decision:	See [41]
Catchwords:	CIVIL PROCEDURE — application for urgent interlocutory relief — balance of convenience — where defendant published on the website of the NSW Resources Regulator an investigation report and incident animation — where report and animation related to an incident at a mine operated by the plaintiff — where plaintiff sought that the report and animation be removed from website — whether to grant plaintiff’s application for relief — application refused
Legislation Cited:	Work Health and Safety (Mines and Petroleum Sites) Act 2013
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural rulings
Parties:	Young Mining Company Pty Ltd (P) State of New South Wales (D)
Representation:	Counsel: P Afshar (P) N Read (D) Solicitors: Mahony Law (P) McCullough Robertson Lawyers (D)
File Number(s):	2023/155162
Publication restriction:	Not Applicable

JUDGMENT

1. In these proceedings, Young Mining Company Pty Ltd (“Young Mining”) seeks relief against the State of NSW (“the State”) on an interlocutory basis. The proceedings concern an investigation report and incident animation both relating to an injury to a worker which occurred in the course of the operations of the Thuddungra Mine near Young, NSW, on 10 August 2021. The report and animation were published by the State on 10 May 2023 on the website of the NSW Resources Regulator (“the Regulator”).

2. Young Mining claims, on an interlocutory basis, relief against the State, which is sued in respect of the conduct of the Regulator. The Regulator is a statutory office created by the Work Health and Safety (Mines and Petroleum Sites) Act 2013. Young Mining seeks an order to require the Regulator to remove from its website the report and animation and to be restrained from causing or permitting the report to be further published until a final hearing of the proceedings.

3. The State opposes the relief sought. It argues that the relief would not be available as a matter of law or as a matter of the exercise of the Court’s powers of judicial review. Accordingly, it argues that there is no proper basis for any interlocutory relief.

Listing before the Duty Judge

4. The proceedings were listed before me on Friday, 26 May 2023, in the Duty List. The Registrar had been persuaded by counsel acting for both parties that the matter be appropriately listed before a Duty Judge on the basis that the proper estimate of the proceedings was one hour. The proceedings took the whole of the day except for approximately 15 minutes at the commencement of the day. Even then, it was not possible, in the course of that hearing, for the Court to be fully apprised of the contents of all of the documents which were relied upon and tendered by the parties.

5. This should never have been a Duty matter. It should not have been referred to the Duty Judge. The Duty List is not a place for the determination of urgent relief of the kind which I was asked to make.

6. The proper course in this matter, assuming counsel and solicitors had turned their mind to an appropriate estimate, was to seek a final determination on an urgent basis, and on the basis that such a final determination could take place within a day. That was not done. The consequence is that it is simply not possible for a Duty Judge, having heard all of the arguments, to give a speedy judgment in this matter which canvasses, at length, all of those arguments.

7. The Court, as Duty Judge, engages in hearing and determining urgent matters. A Duty Judge does not have the time or the resources to engage in decision-making at the depth that this matter required. Accordingly, my reasons for the orders which are to be made are necessarily truncated and concentrate on a small number of the issues necessary for the determination of the relief claimed.

Further introductory remarks

8. I also note that I am giving a judgment with respect to an interlocutory proceeding. That necessarily means I make no finding of any final kind about the differences between the parties, which will be litigated in due course.

9. Whilst in these reasons I do not reach a final conclusion as to whether there are reasonable grounds for final relief in favour of Young Mining, at least with respect to its possible entitlement to obtain a declaration with respect to what it says are errors made in the content of the report, I have nevertheless not been satisfied on an interlocutory basis that Young Mining’s contentions, that there are errors in the report, and that it was denied procedural fairness, have been made out. That is not a final conclusion. It is simply a determination made on the limited material provided to the Court.

10. However, I will proceed with the balance of my consideration on the assumption that Young Mining has a reasonable arguable case for relief, and hence at this interlocutory stage, it is necessary to enter upon a consideration of the balance of convenience.

Factual background

11. In undertaking this task, I need to first outline a short chronology of the facts as they were proved in the proceedings.

12. As I remarked earlier, an industrial accident occurred at the Thuddungra Mine on 10 August 2021. A worker, who was engaged in the role of an ore sorter about 12 months prior to the incident, was seriously injured when he fell into the entry chute of a conveyor and became buried by mined product. When the worker fell, he landed on his back and became covered in the mined product which was being fed along the conveyor from a hopper situated above him. When he was found by a fellow worker, he was completely buried, except for his head and one hand, by that mined product.

13. The other worker was initially unable to stop the movement of the conveyor belt. Mining product kept being fed from the hopper onto the injured worker. Eventually, this worker accessed an isolation point and he switched off the conveyor, causing it to stop. Together with a contractor on the site, this worker went to the injured worker’s aid and dug him out by hand. It took about 15 minutes to free him.

14. The injured worker was taken to the local hospital at Young and then was transferred to the Wagga Base Hospital where he spent some time. An investigation was promptly commenced by the Regulator.

15. In September 2021, approximately one month after the accident, the Regulator published a document which it called an Investigation Information Release. That document identified a number of features of what occurred so far as could be determined at that early stage. Such a Release is published by the Regulator for the purpose of publicly disclosing its early knowledge as to how the incident occurred, and what its initial inquiries had indicated, together with safety observations made for the benefit of mine operators in the state of NSW and elsewhere.

16. An example of what that Release contained was a statement to the following effect:

“The emergency lanyard on the PS25 conveyor was not sufficiently tensioned. When the lanyard was pulled by a responding worker, it did not have any effect on the operation of the reciprocating feeder.”

17. An example of a safety observation which followed, for the benefit of the industry, said:

“Mine operators should … ensure that emergency stop devices are maintained and tested regularly.”

18. As I have said, the Release was published in September, at an early stage after the incident, for the benefit of safety in the mining industry, which is notoriously an industry with a high level of risk. Today, Young Mining does not seek to challenge the content of that Release, nor does it complain about the contents of it.

19. In November 2022, the Regulator provided a draft report to both Young Mining and the injured worker, inviting comment or feedback. Within about a week of the receipt of that report, Young Mining sent a letter to the Regulator raising its concerns with the draft report. Young Mining requested to be provided with all “information provided to the Regulator by our client’s employees” insofar as it related to the accident. It sought a period of four months to respond to the report once that information had been received.

20. Young Mining’s lawyers threatened legal proceedings at that time if their demands were not met. Within another week, Young Mining asked the Regulator to confirm that it would not publish its report because it contended it had not had an adequate opportunity to respond.

21. The Regulator advised Young Mining that the Regulator was of the view that Young Mining had been provided a reasonable opportunity to respond and, further, that it did not intend to provide Young Mining with copies of documents created or obtained in the course of its investigation.

22. The Regulator also advised Young Mining that it did not at that time intend to provide Young Mining with a further opportunity to review the report prior to publication. Within a further week, the Regulator advised Young Mining that it had decided to publish its report substantially in the form provided to Young Mining for comment, subject to some relatively minor amendments and that it expected that the report would be published around mid to late April 2023.

23. No action was taken at that time by Young Mining to contend that the contents of the draft report contained the errors which it seeks now to bring to the Court’s attention, nor did Young Mining take any action then to restrain the publication of the report on the basis that it had been denied procedural fairness or, in some other way, its rights which it asserted it had had been infringed, or else would, if an injunction was not granted, be likely to be infringed.

24. Ultimately, after some further exchanges – which I do not intend to detail – in late April 2023, Young Mining provided further material to the Regulator. After that material was provided, the Regulator published the report on 10 May 2023 together with the animation. On 15 May 2023, Young Mining filed its Summons, which was amended by leave of the Court on 22 May 2023.

25. I note that, since 15 May 2023, there have been a number of articles published in newspapers circulating in the Riverina area, reporting on the fact that these proceedings had been commenced by Young Mining and that the owners of Young Mining have contended publicly that the findings in the report were wrong, and that the Regulator was biased against the company without reason. It was reported that Young Mining, through a senior executive, had said publicly this:

“The report is biased against the company without reason and is full of gross misrepresentations of facts, as well as many untruths and false allegations.”

26. As well, the evidence contains an article published in an online industry bulletin containing allegations to a similar effect.

Discernment

27. Against that summary, I return to the consideration of whether or not the balance of convenience favours the making of the interlocutory orders. I have come to the conclusion, for the reasons which follow, that the balance of convenience does not favour making the orders sought by the plaintiff Young Mining. These are my reasons for that conclusion.

28. First, the purpose of the publication of the report is for the Regulator to provide information to the mining industry at large about risks which eventuate in the industry, the causes of those risks eventuating as determined by the Regulator, and for the purpose of ensuring safety in the industry. This purpose is one which informs not just mine operators, but workers on mines and the public generally about important safety concerns. It reflects the public interest role of the Regulator.

29. Secondly, Young Mining made no complaint about the accuracy or contents of the Release, which has been in the public arena since September 2021.

30. On my brief reading, the substance of that document bears significant similarities to the substance of the conclusions in the report published on 10 May 2023. In other words, the differences between the two are not, to my analysis, of such significance to suggest that the report ought be removed from public viewing whilst ever the Release remains available to the public.

31. Thirdly, Young Mining clearly had knowledge that the Regulator intended to publish its report since at least November 2022 and that the report would contain information which was critical of it.

32. Young Mining knew that the publication would be likely to occur in mid to late April 2022. Its lawyers in November 2022 were prepared to take action against the Regulator to restrain the publication of the report, threatened to do so, and yet nothing was done by way of any action for about six months.

33. Fourthly, the report was published on 10 May 2023, together with an incident animation on the regulator’s website. The evidence suggests that between 2,800 and 3,100 individual views of the animation have occurred.

34. That suggests to me that there is a significant public interest in understanding what occurred in this serious industrial accident and how that may affect the operations of other mining operators. Although there was no evidence about the number of individual views of the report, I would be surprised if it was much different from that with respect to the animation, given that they are published together, they relate to each other and are they accessible on the same website.

35. Shortly put, the report has now been available for downloading for almost but not quite three weeks. I am satisfied that the report and the animation have been downloaded or viewed on many, many occasions. The order sought is to remove the report from the website of the Regulator and for the Regulator not to otherwise distribute it. However, to put in colloquially, “the cat is out of the bag”, and it cannot be put back in. Once a report which has had thousands of individual views is in the public arena over the internet, copies of it would be available from a wide variety of sites. A take down order of the kind sought here will not be effective to prevent further access to the report and the further publication of it.

36. Fifthly, there is existing media publicity in the print media reporting part of the substance and effect of the report, which cannot be withdrawn.

37. Sixthly, the evidence before me does not establish any actual loss or damage to the company, Young Mining. The evidence establishes that there is anticipated damage to the company’s reputation. In other words, the application for relief at the moment is based on a theoretical rather than an actual demonstration of damage to the company’s reputation.

38. Seventhly, having regard to the existing media publicity and to the extent that it is apparent in the evidence, Young Mining has resources available to it by which, if it chooses, it can publish a rebuttal of the report. It can take steps to draw the attention of the public, as it has already done through reporters, to the defects it contends exists in the report and it can, if it chooses, undertake a range of publicity or other measures designed to ensure the protection of its reputation.

39. Ultimately, the Court is being asked to balance what is a potential risk of reputational harm to Young Mining as against the obvious public interest in the industry learning of the fact of the industrial accident, the causes of it as identified by the Regulator, and the basis upon which the Regulator has arrived at those views.

40. In those circumstances, and in circumstances where, as I have said, the relief sought is likely to be inutile, I have determined that the balance of convenience favours the public interest and, accordingly, the interlocutory relief sought by Young Mining should be refused.

Orders

41. I make the following orders:

1. The interlocutory relief sought by Young Mining Company Pty Ltd is refused.

2. Order that the plaintiff pay the defendant’s costs of the interlocutory proceedings.

3. List the proceedings for further directions before the Common Law Registrar at 9am to 1.6.23

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Decision last updated: 15 June 2023