BM Alliance Coal Operations Pty Ltd v Le Roux [2025] QCA 177

SUPREME COURT OF QUEENSLAND CITATION: BM Alliance Coal Operations Pty Ltd v Le Roux [2025] QCA 177 PARTIES: BM ALLIANCE COAL OPERATIONS PTY LTD (appellant) v JACQUES LE ROUX, CHIEF INSPECTOR OF COAL MINES, RESOURCES SAFETY AND HEALTH QUEENSLAND (respondent) FILE NO/S: Appeal No 532 of 2025 ICQ No 44 of 2023 ICQ No 45 of 2023 DIVISION: Court of Appeal PROCEEDING: Appeal from the Industrial Court (Qld) ORIGINATING COURT: Industrial Court at Brisbane – [2024] ICQ 20 (Davis J, President) DELIVERED ON: 19 September 2025 DELIVERED AT: Brisbane HEARING DATE: 13 June 2025 JUDGES: Bond, Brown and Bradley JJA ORDERS: 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of the appeal. CATCHWORDS: INDUSTRIAL LAW – WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – DUTIES – RISK ASSESSMENT AND SAFE SYSTEM OF WORK – where the appellant operates a coal mine located in the Bowen Basin – where the respondent is the chief inspector of Coal Mines, Resources Safety and Health – where the chief inspector issued two directives to the appellant under sections 166 and 168 of the Coal Mining Safety and Health Act 1999 (Qld) (the Act) – where the appellant appealed the decision of the respondent to issue the directives to the Industrial Court of Queensland (ICQ) – where the ICQ made final orders varying each directive by deleting certain parts and substituting different provisions – where the appellant contends the President of the ICQ wrongly construed section 29 of the Act in concluding it was not necessary to balance safety and commercial interests – where the appellant contends the President of the ICQ failed to consider evidence before the Court that was relevant to the assessment required by subsection 29(1)(b) of the Act – -- 1 of 10 -- 2 whether the President of the ICQ erred in law by wrongly construing section 29 of the Act – whether the President of the ICQ erred in law by failing to consider the evidence before the Court with respect to the determination required by subsection 29(1)(b) of the Act Coal Mining Safety and Health Act 1999 (Qld), s 29, s 166, s 168 Work Health and Safety Act 2011 (Qld), s 18 COUNSEL: P J Dunning KC, with B I McMillan, for the appellant J D McKenna KC, with N J Derrington and P H Nevard, for the respondent SOLICITORS: Herbert Smith Freehills Kramer for the appellant Gadens for the respondent [1] THE COURT: The appellant (BMA) operates the Peak Downs Mine, a coal mine located south-east of Moranbah in the Bowen Basin. The respondent (the chief inspector) is the chief inspector of Coal Mines, Resources Safety and Health under the Coal Mining Safety and Health Act 1999 (Qld) (the Act). [2] On 25 October 2023, the chief inspector issued two directives to BMA: one under s 166 of the Act (the 166 Directive); and the other under s 168 of the Act (the 168 Directive).1 A subject of the directives was the management during lightning activity of certain Heavy Mobile Equipment, which operate on 24″ or larger rubber tyres, (HME). [3] BMA appealed to the Industrial Court of Queensland against the directives. The Industrial Court stayed the directives pending a decision on BMA’s appeal. On 16 January 2025, the Industrial Court made final orders, including orders lifting the stays of the directives and varying each directive by deleting certain parts and substituting different provisions. [4] By its appeal to this Court, BMA challenged those orders. The appellant relied on parts of the reasons published on 13 November 2024,2 following a four-day hearing de novo before the President of the Industrial Court. Grounds of appeal [5] BMA advanced two grounds of appeal: (a) First, that the Industrial Court erred in law by wrongly construing s 29 of the Act and finding, at paragraph [27] of the reasons, that nothing in the Act was suggestive of any balancing of safety and commercial interests; and (b) Second, that the Industrial Court erred in law by failing to consider or take into account evidence that was before the Industrial Court as to the commercial and operational impacts of the directives in assessing whether risk was “as low as reasonably achievable” for the purposes of s 29(1)(b) of the Act. [6] The two grounds were not independent. BMA contended that the error of law alleged in Ground 1 led the Industrial Court into the error alleged in Ground 2, by infecting the Industrial Court’s approach to the evidence before it. 1 The directives were issued pursuant to the Act as at 4 December 2023. 2 BM Alliance Coal Operations Pty Ltd v le Roux (No 2) [2024] ICQ 20 (the Reasons). -- 2 of 10 -- 3 The submission in the appeal [7] The chief inspector’s power to issue the 166 Directive depended on the chief inspector reasonably believing “a risk from coal mining operations may reach an unacceptable level”. By the 166 Directive, the chief inspector could require BMA to “take stated corrective or preventative action to prevent the risk reaching an unacceptable level.”3 [8] The chief inspector’s power to give the 168 Directive depended on the chief inspector believing “the safety and health management system or a principal hazard management plan for a coal mine” was ineffective. By the 168 Directive, the chief inspector could require BMA to “review the safety and health management system or the principal hazard management plan and make it effective.”4 [9] In the Industrial Court, BMA accepted that if the 166 Directive was not set aside, then the 168 Directive would also remain. The chief inspector accepted that if the 166 Directive was set aside, then the 168 Directive would also fail. Both parties accepted that if the 166 Directive was varied by the court, then the 168 Directive would also be varied to require changes consistent with the varied 166 Directive. [10] Most of the factual and expert opinion matters were not in dispute in the Industrial Court. As the President noted: “[57] It is common ground that HMEs may be struck by lightning when they are operating in coal mines in the Bowen Basin. It is also common ground that as a matter of physics, a metal vessel (such as a truck), when struck by lightning, operates (not necessarily perfectly) as a Faraday cage so that lightning which hits the HME will tend not to pass into and through the occupant of the vehicle but will pass across the metal surfaces of the vehicle into the earth. … [59] … It is common ground that if a truck suffers a lightning strike, there is a danger that air-filled tyres will explode as the electric current passes through them to earth. It is also common ground that nitrogen-filled tyres will not explode.” [11] The directives were driven by two concerns. The President described these: “The first is the prospect of the HME being struck by lightning and some of that electrical charge passing into a person within the vehicle. Secondly, it is common ground that a HME operating on air-filled rubber tyres is in danger if struck by lightning, as the tyres are vulnerable to explosion, leading to a loss of control of the vehicle. The answer to this problem is to fill the tyres with nitrogen rather than air which contains oxygen. This avoids the tyres exploding.”5 [12] BMA had addressed these concerns, in a Trigger Action Response Plan (the Lightning TARP) within its Severe Weather Policy, by prescribing actions to be 3 Act, s 166(1) (as at 4 December 2023). 4 Act, s 168 (as at 4 December 2023). 5 Reasons at [7]. -- 3 of 10 -- 4 taken in the event of lightning. The Lightning TARP required the operator of an HME with tyres filled with nitrogen to a purity of 94.5% or less (or filled with air) to “park up” in a safe location when lightning strikes were detected within 30km-16km from the mine (Level 2 alert conditions). However, the operator of an HME with tyres filled with nitrogen to a purity of 95% or more was to continue to operate at Level 2 and, subject to a supervisor’s or open-cut examiner’s direction to do otherwise, the operator was to continue to operate when lightning strikes were detected less than 16km from the mine (Level 3 alert conditions). [13] The 166 Directive required at Level 2 alert conditions that the operator of an HME “park up”, exit the cabin, relocate to a safe building, and remain there until the Level 2 alert has been lifted. [14] The President noted: “The critical difference between the Lightning TARP as instigated by [BMA] and the 166 Directive is that: (a) by the Lightning TARP, HME with tyres filled to 95% nitrogen may continue to operate through both a Level 2 and Level 3 event; and (b) by the 166 Directive, work must cease at Level 2.”6 [15] In explaining the chief inspector’s position, his Honour identified that: “[The chief inspector] formed the view that, notwithstanding the operation of the Severe Weather Policy and the associated TARPs, risk of injury to a person may reach an unacceptable level. Upon forming that view, [the chief inspector] gave the directives which effectively alter the operation of the Lightning TARP.”7 (footnotes omitted) [16] As the President observed, the appeal before the Industrial Court was conducted on the basis that the chief inspector “subjectively believed that the risk may reach an unacceptable level” and that the “real issues” were: “(a) whether the belief was reasonable; and (b) whether the 166 Directive was a directive which prevented the risk reaching an unacceptable level.”8 [17] The dispute before the Industrial Court was recast by the written submissions on behalf of the chief inspector. As the President noted, the chief inspector submitted that the Industrial Court “would be empowered to vary” the 166 Directive “to require the Mine to cease operation” and park up the HME, “but not require that the workers relocate from HME into a safe building prior to a Level 3” event. It was submitted that such a variation could be ordered if the Industrial Court were to: “(i) form the view that risk to coal mine workers is greater if they continue to operate the subject HME during Level 3 [alert] conditions than it is if they are parked up – a view the Court 6 Reasons at [13]. 7 Reasons at [8]. 8 Reasons at [55]. -- 4 of 10 -- 5 ought readily form given it is a matter about which the lightning experts are agreed; and (ii) as a consequence of forming [that] view …, form the requisite reasonable belief that by continuing to operate subject HME during Level 3 [alert] conditions risk may reach an unacceptable level; and (iii) conclude that ceasing operation of the subject HME during Level 3 [alert] conditions is reasonably achievable; but (iv) form the view that parking up and entering a safe building prior to Level 3 [alert] would not reduce risk, or could not be reasonably complied with – a matter about which the lightning experts are not agreed”.9 [18] In light of the chief inspector’s change of position, the President made some general observations, before identifying two questions that encapsulated the “central issues”: “In practical terms, there are two questions which are related to each other: (a) assuming the lightning strike on a HME may cause the tyres of the vehicle to explode, and thereby risk harm to the occupant, is the operation of those vehicles at Level 3 of the TARP an acceptable risk when the tyres are filled with nitrogen (the exploding tyres issue); and (b) assuming that HMEs with rubber tyres may be struck by lightning but the tyres can’t explode, does the prospect of them operating at Level 3 of the TARP otherwise constitute an unacceptable risk to workers within the vehicle (the Faraday cage issue).” [19] The President resolved the first question by considering the evidence of the experts tendered by the parties on HME tyres exploding in lightning strikes, the evidence adduced by BMA about its systems, and the evidence of two inspectors called by the chief inspector. His Honour concluded that there was agreement among the experts “that nitrogen-filled tyres will not explode upon lightning strike”10 and that the systems BMA had in place achieved the aim of ensuring that nitrogen levels in the HME tyres are at 95% in vehicles operating at Level 3.11 Neither party disputed these findings in this Court. [20] The evidence, expert and factual, relevant to the second question was less satisfactory. However, the President made the following deductions, which were accepted by both parties in this appeal: “(a) lightning strikes at Peak Downs Mine are relatively common during storm season; (b) lightning strikes upon HMEs at Peak Downs Mine during storm season are also relatively common; 9 Reasons at [14]. 10 Reasons at [64] 11 Reasons at [82]. -- 5 of 10 -- 6 (c) HMEs have a Faraday cage effect so that the energy of a lightning strike which hits them is disbursed across the surface of the vehicle; (d) that Faraday cage effect gives partial protection to those inside the HME from the strike; (e) given the construction of HMEs, they do not act as a true Faraday cage; (f) there are lines of conductivity into different HMEs; (g) it is not possible to identify all lines of conductivity; (h) it is not possible therefore to calculate what charge may enter a particular HME; (i) many of the controls (pedals, levers etc.) within an HME have low levels of resistance to conductivity; (j) injury or death of a passenger to a metal topped passenger vehicle is all but unheard of; and (k) there is no identified case of death or serious injury to a coal mine worker who was inside a vehicle at the time of a lightning strike, although that must be qualified in that it has not been general practice to operate HMEs in Level 3 conditions.”12 [21] From the conclusions and the deductions noted above, the President expressed the final findings in these terms: “[124] In my view, risk to the safety of coal mine workers operating HMEs at Peak Downs Mine in Level 3 conditions may reach unacceptable levels. This is because: (a) the lines of conductivity into the vehicle include metal controls such as pedals and levers etc.; (b) the prospect of a coal mine worker touching a metal surface within the HME must be greater if the coal mine worker is busy within the cabin driving and otherwise operating the HME than if it is parked up; and (c) there is a possibility of death or injury. [125] I do not consider that the risk to a coal mine worker in a parked up HME in Level 3 conditions may reach unacceptable levels. I form this view because: (a) there is an absence of anecdotal evidence of injury or death to coal mine workers in HMEs struck by lightning; (b) the Holle Report shows that metal topped passenger vehicles have significant Faraday cage effect, and a case of death or serious injury to a passenger actually within a vehicle (as opposed to standing near it) has not been rendered; and 12 Reasons at [123]. -- 6 of 10 -- 7 (c) it is the pedals and other controls within the HME which have low levels of conductivity resistance and those controls will not need to be manipulated if the vehicle is parked up. [126] True it is that the safety of the coal mine worker is dependent, to a point, upon them not touching levers and metal surfaces. True also it is that that is dependent upon the discipline of the coal mine worker, but in my view, education and protocols ought to be able to be developed to meet that concern. [127] In conclusion, the TARP should operate so that operations continue through Level 2 but upon Level 3 being reached, the vehicles must be parked up and the coal mine workers remain in the vehicles until Level 3 conditions have lifted.” Consideration of the submissions [22] By s 29 of the Act, Parliament provided that: “29 What is an acceptable level of risk (1) For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is— (a) within acceptable limits; and (b) as low as reasonably achievable. (2) To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to— (a) the likelihood of injury or illness to a person arising out of the risk; and (b) the severity of the injury or illness.” [23] In this Court, it was common ground that s 29(1)(a) and s 29(1)(b) were two separate limbs. The parties also accepted the President’s explanation of their interaction in the following parts of [27]-[28] of the Reasons: “The risk must be ‘within acceptable limits’ and ‘as low as reasonably achievable’. Those two considerations are quite different. Some operations may be such that whatever safety measures are taken, the risk cannot be brought ‘within acceptable limits’ and therefore operations must cease. … [If operating] is within acceptable limits of risk, provided [certain steps are taken,] then the question becomes, by reference to all precautions taken, whether ‘the risk is as low as reasonably achievable’. Provided risk can be brought to an ‘acceptable level’ then some risk is accepted. The [Act] recognises that coal mining operations may not be risk free.” [24] BMA’s appeal in this Court focussed on these words at the beginning of [27] of the Reasons about s 29 of the Act: -- 7 of 10 -- 8 “Again, it can be seen that in determining whether the ‘risk’ (defined in s 18) is ‘within acceptable limits and as low as reasonably achievable’ regard is to be had to likelihood and consequences. Nothing in the [Act] is suggestive of any balancing of safety and commercial interests.” [25] As the President noted, s 18 of the Act provides that risk means “the risk of injury or illness to a person arising out of a hazard” and is “measured in terms of consequences and likelihood.” [26] In this Court, it was common ground that on the proper construction of s 29 of the Act: (a) A decision about whether the level of risk to a person from coal mining operations is “within acceptable limits”, for the purposes of s 29(1)(a), is to be made having regard to the absolute measure beyond which the relevant risk is unacceptable. The mandatory considerations in s 29(2)(a) and (b), namely “the likelihood of injury or illness to a person arising out of the risk” and “the severity of the injury or illness” may be all that is required to assess whether a particular risk exceeds the maximum risk acceptable to the community. (b) A decision about whether the level of risk to a person from such operations is “as low as reasonably achievable”, for the purposes of s 29(1)(b), is to be made having regard to relevant considerations. In addition to the mandatory considerations, the cost and expense of implementing measures that could further reduce the risk, and any opportunity cost arising from implementing such measures, are likely to be relevant considerations. [27] The part of the Reasons with which BMA took issue seems to have originated in a written submission on behalf of the chief inspector put to the President below. It was that the Act was “notably different to several other protective statutes” in that the Act “does not by its objects seek to strike a balance between its protective intent and the advancement of commercial enterprise.”13 For the chief inspector it was submitted that the “purpose” of the Act was “unconcerned with striking such a balance” due to “the sheer scale of coal mining operations and the sums of money that flow.” This lack of concern with “striking a balance” was said to be “reflected in the terms of s 29(2)” of the Act. A contrast was drawn with s 18 of the Work Health and Safety Act 2011 (Qld) (WHSA), said to be otherwise analogous to s 29(2) of the Act. The Act did not include a provision like s 18(e) of the WHSA, which requires consideration of: “the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.” (underlining added in the chief inspector’s written submission) [28] As the chief inspector’s appropriate concession in this Court shows, the prescription of mandatory considerations in s 29(2) does not exclude any otherwise relevant consideration, such as relevant costs. That concession and the concession in 26(b) above were correctly made in the context of s 29(1)(b). It is difficult to see how costs 13 The written submission cited the Environment Protection Act 1994 (Qld) and the Planning Act 2016 (Qld), as examples. -- 8 of 10 -- 9 would not be relevant to the assessment of whether the level of risk from the operations was as low as reasonably achievable. [29] In the present appeal, the scope of the President’s rejection of “any balancing of safety and commercial interests” is of no consequence. This is because, as the parties’ respective cases developed in the Industrial Court, the only matters in issue before his Honour were matters concerning whether the relevant risk was within acceptable limits. The chief inspector had raised whether the relevant risk was the “lowest reasonably achievable” only in the alternative to his main case below. It was to be considered only if the Industrial Court found that the relevant risk under the BMA Lightning TARP was within acceptable limits. That finding was not made. The alternative case did not arise. [30] The conclusions at [19] above and the deductions at [20] above concerned matters that were relevant to whether the identified risks were within acceptable limits. [31] In [124] of the Reasons, the President concluded that whether the relevant risk from BMA operating HME in Level 3 alert conditions under the Lightning TARP may reach unacceptable levels, turned on matters relevant to whether the risk was within acceptable limits, namely: the lines of connectivity into the HME; the greater prospect of a coal mine worker touching a metal surface in the HME if driving or operating the vehicle; and the possibility of death or injury. [32] The President’s conclusion in [125], that his Honour did not consider that the relevant risk from BMA parking up HME in Level 3 alert conditions under the Lightning TARP may reach unacceptable levels, also turned only on matters relevant to whether the risk was within acceptable limits. Counsel for the chief inspector confirmed in this Court that the chief inspector did not contend that the level of relevant risk from parking up HME in Level 3 alert conditions under the Lightning TARP was not as low as reasonably achievable. [33] In [126] of the Reasons, the President left scope for education and protocols to be developed to meet concern about the conduct and discipline of coal mine workers that might affect their safety, in respect of not touching levers and metal surfaces. [34] In the circumstances, the orders made by the Industrial Court on 16 January 2025 gave appropriate effect to the President’s final conclusion expressed in [127] of the Reasons, that: “the [Lightning] TARP should operate so that operations continue through Level 2 but upon Level 3 being reached, the vehicles must be parked up and the coal mine workers remain in the vehicles until Level 3 conditions have lifted.” [35] Given the conclusions reached above, the decision was not affected by any error of law contended for by the Applicant. The proper construction of s 29(1)(b) of the Act and the evidence relevant to an assessment of whether the level of risk from the operations was “as low as reasonably achievable” did not fall to be considered in this case. The President’s reference to “any balancing of safety and commercial interests” was not a necessary element of the conclusions reached by his Honour or the orders made by the Industrial Court. In light of this, and the sensible concessions noted at [26](b) and [28] above, it is not necessary for this Court to express any view about it. -- 9 of 10 -- 10 Final disposition [36] The Court should order: 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of the appeal. -- 10 of 10 --