BM Alliance Coal Operations Pty Ltd v le Roux [2023] ICQ 31

INDUSTRIAL COURT OF QUEENSLAND CITATION: BM Alliance Coal Operations Pty Ltd v le Roux [2023] ICQ 31 PARTIES: BM ALLIANCE COAL OPERATIONS PTY LTD (applicant) v JACQUES LE ROUX, CHIEF INSPECTOR OF COAL MINES, RESOURCES SAFETY AND HEALTH QUEENSLAND (respondent) FILE NO/S: C/2023/44 C/2023/45 PROCEEDING: Applications DELIVERED ON: 5 December 2023 HEARING DATE: 1 December 2023 MEMBER: Davis J, President ORDERS: 1. The application in appeal C/2023/44 is dismissed. 2. The application in appeal C/2023/45 is allowed and the directive is stayed pending determination of the appeal or earlier order. 3. In both applications, costs are reserved. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant is a coal mine operator – where the applicant had in place safety procedures in the event of electrical storms – where the respondent is an inspector authorised to give directives to coal mine operators – where the respondent gave directives to the applicant – where the directives concern safety procedures at the mine operated by the applicant during electrical storms – where the directive requires operations at the coal mine to cease during an electrical storm – where the applicant appealed the making of the directive – where the applicant applied for a stay of the directive – where the Court has jurisdiction to grant the stay for the purpose to “secure the effectiveness of the appeal” – where the applicant submits it will incur significant financial loss by closure of its operations during electrical storms – where the applicant submits that its current procedures provide a lower level of risk than does the directive – whether the stay should be given to preserve the effectiveness of the appeal Administrative Appeals Tribunal Act 1975 (Cth), s 44A Child Protection Act 1999, s 199 Coal Mining Safety and Health Act 1999, s 6, s 7, s 18, s 25, -- 1 of 25 -- 2 s 29, s 30, s 31, s 33, s 34, s 39, s 41, s 42, s 44, s 45, s 45A, s 46, s 125, s 166, s 168, s 174, s 245, s 246 Dangerous Prisoners (Sexual Offenders) Act 2003 Environmental Protection Act 1994, s 535, s 539B Health Practitioners (Professional Standards) Act 1999, s 351 Police Powers and Responsibilities Act 2000, s 48, s 143, s 177, s 179, s 645 Resources, Safety and Health Queensland Act 2000 Uniform Civil Procedure Rules 1999, r 761 CASES: Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 111, followed Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, cited Australian Leisure & Hospitality Group Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QSC 354, followed Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, cited BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health Queensland [2021] ICQ 1, followed Bond v Chief Executive, Department of Environment and Science [2022] QPELR 191; [2021] QPEC 14, not followed Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, followed Cougar Energy Ltd v Chief Executive Under the Environmental Protection Act 1994 [2012] QPELR 370; [2011] QPEC 150, not followed Dalliston v Taylor (2015) 251 IR 3; [2015] ICQ 017, followed Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347, cited Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, followed George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited Hunt v Dr John Gerrard, Chief Health Officer [2022] QCA 263, cited Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, cited Meghla v Prostitution Licensing Authority [2021] QSC 320 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; [1986] HCA 40, cited R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed Raschilla v Westpac Banking Corporation [2010] QCA 255, cited Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] -- 2 of 25 -- 3 HCA 4, followed Walsh v Stephenson (1996) 68 IR 22, cited COUNSEL: BI McMillan for the applicant DP O’Brien KC and PH Nevard for the respondent SOLICITORS: Herbert Smith Freehills for the applicant Gadens for the respondent [1] BM Alliance Coal Operations Pty Ltd (BM) is the operator of the Peak Downs Coal Mine (the mine), south-east of Moranbah in the Bowen Basin. [2] BM has appealed two directives given by Mr le Roux in his capacity as Chief Inspector of Coal Mines, Resources Safety and Health Queensland. Those directives were given pursuant to ss 166 and 168 of the Coal Mining Safety and Health Act 1999 (CMSH Act). Pending appeal, BM seeks a stay of the two directives. Mr le Roux concedes that one of the directives ought to be stayed. He resists the application to stay the other. Background [3] Pursuant to its obligations under the CMSH Act, BM has: 1. appointed a Site Senior Executive for the mine;1 and 2. ensured that the Site Senior Executive has developed and implemented a safety and health management system for the mine.2 [4] BM has in place safety procedures which apply to work being conducted during electrical storms. [5] On 25 October 2023, Mr le Roux gave two directives to the mine’s Site Senior Executive. One was given pursuant to s 166 of the CMSH Act directing the Site Senior Executive to take particular corrective or preventative action to prevent risk reaching an unacceptable level at the mine (the s 166 directive). The second directive, also given on 25 October 2023, but given pursuant to s 168 of the CMSH Act, directs the amendment of the mine’s safety and health management system to incorporate the preventative actions directed pursuant to s 166, or to implement other safety controls so as to reduce the risk to a level as low, or lower than, the level which would be achieved by taking the preventative actions (the s 168 directive). [6] Both the directives concern safety measures to be undertaken during periods of severe weather involving lightning. [7] The s 166 directive is as follows: 1 Coal Mining Safety and Health Act 1999, s 41(1)(d). 2 Coal Mining Safety and Health Act 1999, s 41(1)(e). -- 3 of 25 -- 4 “Directive Given: Pursuant to section 166 of the Act, I direct the SSE3 to take the following preventative actions at the Mine immediately upon the receipt of this Directive, in order to prevent Risk whilst a Level 3 TARP is in place reaching an unacceptable level: (a) When a Level 2 TARP is in place, requiring coal mine workers operating any HME with rubber tyres >24” (including HME4 with rubber tyres >24” and >95% nitrogen) to: (i) park up in Safe Park Up Locations as directed by their supervisor; and (ii) exit the cabin and relocate inside a Safe Building efficiently and safely (no rushing); and (iii) remain inside a Safe Building until Mine control communicates to all personnel that ‘the lightning alert has been lifted’. (b) Taking such other actions as the SSE considers to be necessary in order to facilitate the safe and timely discharge of the above actions, including, but not limited to, giving consideration to whether the actions in (a) ought to occur in a Level lower than a Level 2 TARP in order to ensure that all coal mine workers operating HME with rubber tyres >24” have sufficient time to park up in a Safe Park Up Location, exit the cabin, and relocate inside a Safe Building efficiently and safely (no rushing) before a Level 3 TARP is reached. In this Directive: Heavy Mobile Equipment (abbreviated to HME) has the same meaning as in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022), namely: Heavy Mobile Equipment Class includes: Heavy Vehicle All heavy off-road vehicles and mobile equipment, not normally registrable for QLD public road use. Examples of HME that are identified in the TARP include haul trucks, water trucks, loaders and graders. HME with rubber tyres >24” means all Heavy Mobile Equipment on rubber tyres that are 24 inches or larger in size. HME with rubber tyres >24” and >95% nitrogen means any HME with rubber tyres >24” that are believed to be filled with nitrogen at a purity of 95% or higher. 3 A reference to the Site Senior Executive. 4 Heavy Mobile Equipment. -- 4 of 25 -- 5 Level 1 TARP means a Level 1 (yellow) alert condition under the TARP. Level 2 TARP means a Level 2 (orange) alert condition under the TARP. Level 3 TARP means a Level 3 (red) alert condition under the TARP. Mine means the Peak Downs Coal Mine. Operator means BM Alliance Coal Operations Pty Ltd. Risk means the risk of injury to persons arising out of lightning occurring at the Mine. Safe Buildings are structures and buildings identified by the ‘visible system’ referred to in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022) and include the structures and buildings deemed to be safe locations in accordance with item 14 of the BMA Coal PRO Severe Weather Management (BMA-0078, VERSION 5.3, 3 June 2022), provided that they are identified by the “visible system”. For the avoidance of doubt, HME with rubber tyres >24” are not Safe Buildings. Safe Park Up Location has the same meaning as in the BMA Coal PRO Severe Weather Management (BMA-PRO-0078, version 5.3, 3 June 2022), namely an area away from coal mine workers that does not impede other work groups safe access. In accordance with the TARP, Safe Park Up Locations are to be identified by Production Supervisors whilst a Level 1 TARP is in place. SSE means the Senior Site Executive for the Mine. TARP means BMA Coal Lightning Trigger Action Response Plan (TARP), version 5.3, dated 10 November 2022. For the avoidance of doubt, nothing in this directive prevents the Operator undertaking actions (including using emergency vehicles) to facilitate an emergency response for the preservation of life in accordance with the PDM PROCEDURE Site Emergency Response Procedure, Version: 3.10 (17 December 2022) when a Level 3 TARP is in place. References: Refer to Mine Record Entry, dated 25 October 2023.” [8] By the TARP:5 1. Level 1 alert applies when the lightning activity is between 60 and 30 kilometres from the mine. 5 As defined in the directives. -- 5 of 25 -- 6 2. Level 2 alert applies when the lightning activity is between 30 and 16 kilometres from the mine. 3. Level 3 alert applies when the lightning activity is within 16 kilometres of the mine. [9] The s 168 directive sets out the preventative action in identical terms to the s 166 directive and provides, in relation to that preventative action: “Directive Given: Pursuant to section 168 of the Act, I direct the Operator to review the SHMS and, by no later than 22 November 2023, make it effective by ensuring that the Mine’s SHMS reduces Risk to a level which is within acceptable limits and as low as reasonably achievable, by: (a) incorporating the Preventative Actions into the SHMS; or (b) implementing such other safety controls as the SSE is satisfied will reduce Risk to a level which is low, or lower than, the level which would be achieved by taking the Preventative Actions.” [10] On 15 November 2023, BM lodged appeals against both directives. The decision sought in the notice of appeal against the s 1666 directive is as follows: “Pursuant to section 248(1)(c) of the Coal Mining Safety and Health Act 1999 (Qld), the Directive given to the Applicant on 25 October 2023 is set aside and a decision not to exercise the power in section 166 of the Coal Mining Safety and Health Act 1999 (Qld) to give a directive in substitution for the Directive set aside. Pursuant to section 248(3) of the Coal Mining Safety and Health Act 1999 (Qld), the Applicant seeks an order for its costs of and incidental to the appeal.” [11] The decision sought in the appeal against the s 168 directive is in exactly the same form except the reference to “the power in section 166” appears as “the power in section 168”. [12] The grounds of appeal against the s 166 directive are:7 “Part 5. Grounds of Appeal 2. On the material available to the Respondent on 25 October 2023, he could not have held the reasonable belief required by sub-section 166(1) of CMSH Act that a risk from coal mining operations at Peak Downs Mine (the Mine) may reach an unacceptable level because the safety and health management system (SHMS) for the Mine was effective to manage the relevant stated risk, namely the risk arising out of lightning occurring at the Mine, to an acceptable level. 6 Appeal C/2023/44. 7 Paragraph 1 records the decision appealed against and does not contain a ground of appeal. -- 6 of 25 -- 7 3. The Respondent could not have reasonably believed, on the material available to him on 25 October 2023, that the stated preventative action would prevent the stated risk reaching an unacceptable level because the stated preventative action applies only to heavy mining equipment (HME) with rubber tyres equal to or greater than 24 inches in diameter whereas the stated risk also applies to other mining equipment and operations. 4. The stated preventative action does not reduce the stated risk but rather, increases the stated risk or, alternatively, has no material effect on the level of the stated risk. 5. The Directive requires preventative action to be taken in a manner that is inconsistent with the prescribed process for review and implementation of any change to the SHMS for the Mine under the Mine’s SHMS and the CMSH Act. 6. On the basis of the material to be placed before this Court on appeal by way of rehearing, this Court may be satisfied that the existing control measures in the SHMS for the Mine, not including the stated preventative action, are effective to manage the stated risk and ensure it does not reach an unacceptable level. 7. The Directive is an improper exercise of power under section 166 of the CMSH Act, or alternatively, was given beyond that power, because it directs that preventative action, as stated at sub-paragraph (b) of the Directive, be taken in circumstances where that stated preventative action is inconsistent with the stated reasonable belief that was a condition precedent to the exercise of power under section 166 of the CMSH Act.” [13] The grounds of appeal against the s 168 directive are effectively the same as the grounds of appeal against the s 166 directive. [14] The current applications are for stays of the directives pending appeal. A separate application has been filed in relation to each of the directives but the applications are, as one would imagine they ought to be, virtually identical. They allege a history of previous directives, assert that the mine’s safety and health management system is appropriate and make a series of assertions about the impact of implementing the directives. The relevant parts of the application for the stay of the s 166 directive are as follows: “Previous directives 16. The Directives relate to risks associated with the operation of HME during lightning events at the Mine. 17. Previously, directives have been issued to the Appellant under the CMSH Act in relation to the risks associated with lightning activity and the operation of mobile equipment during lightning events at the Appellant’s Saraji Mine. -- 7 of 25 -- 8 18. On 10 March 2021, Peter Newman, the former Chief Inspector of Coal Mines, issued two directives to the Appellant in relation to its Saraji Mine, namely: a. a directive under section 166 of the CMSH Act to reduce risk associated with the operation of mobile equipment during lightning events; and b. a directive under section 168 of the CMSH Act to review the Saraji Mine’s SHMS to make it effective. 19. On 7 April 2021, the Appellant filed a notice of appeal in relation to the directive issued by Mr Newman under section 166 of the CMSH Act. 20. The Appellant undertook an extensive and comprehensive review of its SHMS for the Saraji Mine in compliance with the directive issued by Mr Newman under section 168 of the CMSH Act. 21. On 8 April 2021, after review of the SHMS at the Saraji Mine, Mr Frans Knox, the then CMO Representative for the Appellant, provided Mr Newman with correspondence explaining what steps had been taken by the Appellant as part of its review of the SHMS. 22. By agreement dated 9 August 2021, Mr Newman agreed to withdraw the directives issued in relation to the Saraji Mine and, noting the further action to be taken by the Appellant and concerns relating to the operation of two way radios during lightning conditions, otherwise confirmed that he was satisfied that the Saraji SHMS, as it related to the use of mobile equipment at a time when Level 3 of the Lightning TARP was reached, was effective. 23. Following that agreement, the Appellant caused risk assessments to be carried out at its other coal mines in Queensland, including at the Mine, and caused changes to be implemented to the SHMSs at each mine with respect to lightning risks. 24. The Appellant also undertook a further risk review in December 2022 in relation to the lightning risks at the Mine. This risk review was carried out in relation to the publication of a bulletin titled ‘Risk management during lightning events’ published by Resources, Safety and Health Queensland and the 2022 UQ Report. 25. On 23 December 2022, Mr Johnston provided Mr Newman with an update on the outcome of the risk reviews undertaken at BMA mines, including the Mine, and stated that the Appellant was satisfied that the SHMS in place at each mine was effective to achieve an acceptable level of risk in responding to lightning events, including when operating mobile equipment in accordance with the Lighting TARP. -- 8 of 25 -- 9 The Mine’s SHMS 26. There was no proper basis, on the material available to the Respondent on 25 October 2023, for the Respondent to have a reasonable belief at that time that mining operations at the Mine may reach an unacceptable level unless the preventative action stated in the Directive were taken. 27. The stated preventative action required by the Directive does not reduce the stated risk to any level less or lower than the level of risk achieved by the Mine’s existing SHMS. 28. The stated preventative action applies only to HME with rubber tyres equal to or greater than 24 inches in diameter, whereas the stated risk applies to other mining equipment and operations at the Mine, meaning the preventative action does not address the stated risk. 29. Since 25 October 2023, the Appellant and the SSE have considered the material available to the Respondent at the time he gave the Directive and the content of the MRE. 30. The SSE and the Appellant consider the Mine’s SHMS is effective to manage the risk arising from lightning occurring at the Mine and ensure that risk is at an acceptable level. 31. The Mine’s SHMS, as it relates to the risk arising out of lightning occurring at the Mine, is effective without the preventative action required by the Directive to ensure that risk does not reach an unacceptable level. 32. In all of the circumstances, there is not a proper basis for the exercise of power under section 166 of the CMSH Act in relation to the risk arising from lightning at the Mine. Impact of implementing the Directive 33. Promptly after the Respondent gave the Directive, the Appellant and the SSE caused the stated preventative action to be implemented at the Mine, in compliance with the Directive. 34. There were and are significant ongoing operational and safety impacts associated with implementation of the stated preventative action including; a. safety concerns arising from the requirement for HME operators and other CMWs who may potentially be exposed to lightning activity in the open or on the ground, rather than inside the sealed cabin of the relevant HME, as a result of the implementation of the stated preventative action. b. safety concerns arising from the implementation of the stated preventative action, other than in accordance with the processes prescribed by the CMSH Act for reviewing and implementing change to the Mine’s SHMS; and -- 9 of 25 -- 10 c. significant disruption to mining operations at the Mine as a result in the requirement to park up all HME with rubber tyres equal to or larger than 24 inches diameter at a Level 2 Alert under the Lightning TARP. 35. There is no known detriment to the Respondent arising from a stay of the Directive until the determination of the appeal or further order of this Court.” [15] Mr le Roux defends the application for a stay of the s 166 directive but concedes that the s 168 directive should be stayed. In those circumstances, I will stay the s 168 directive. Statutory provisions [16] Section 6 of the CMSH Act defines the objects of the legislation as follows: “6 Objects of Act The objects of this Act are— (a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and (b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and (c) to provide a way of monitoring the effectiveness and administration of provisions relating to safety and health under this Act and other mining legislation.” (emphasis added) [17] These objects are achieved by various means which are identified in s 7. Section 7 relevantly provides: “7 How objects are to be achieved The objects of this Act are to be achieved by— (a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and (b) providing for safety and health management systems at coal mines to manage risk effectively; and … (f) providing for inspectors and other officers to monitor the effectiveness of risk management and control at coal mines, and to take appropriate action to ensure adequate risk management; and …” (emphasis added) [18] “Risk” is defined by s 18: -- 10 of 25 -- 11 “18 Meaning of risk (1) Risk means the risk of injury or illness to a person arising out of a hazard. (2) Risk is measured in terms of consequences and likelihood.” [19] The concept of an “acceptable level of risk” is explained by s 29: “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.” (emphasis added) [20] Sections 30 and 31 concern achieving an acceptable level of risk and the consequences of the risk being unacceptable: “30 How is an acceptable level of risk achieved (1) To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine. (2) This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to— (a) identify, analyse, and assess risk; and (b) avoid or remove unacceptable risk; and (c) monitor levels of risk and the adverse consequences of retained residual risk; and (d) investigate and analyse the causes of serious accidents and high potential incidents with a view to preventing their recurrence; and (e) review the effectiveness of risk control measures, and take appropriate corrective and preventive action; and (f) mitigate the potential adverse effects arising from residual risk. -- 11 of 25 -- 12 (3) Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation. 31 What happens if the level of risk is unacceptable (1) If there is an unacceptable level of risk to persons at a coal mine, this Act requires that— (a) persons be evacuated to a safe location; and (b) action be taken to reduce the risk to an acceptable level. (2) Action to reduce the risk to an acceptable level may include stopping the use of specified plant or substances. (3) The action may be taken by the coal mine operator for the mine, the site senior executive for the mine, industry safety and health representatives, site safety and health representatives, coal mine workers, inspectors or inspection officers.” [21] Part 3 provides that safety and health obligations fall upon various persons. Section 33 provides: “33 Obligations for safety and health (1) Coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under division 2 (safety and health obligations). (2) The following persons have obligations under division 3 (also safety and health obligations)— (a) a holder; (b) a coal mine operator; (c) a site senior executive; (d) a contractor; (e) a designer, manufacturer, importer or supplier of plant for use at a coal mine; (f) an erector or installer of plant at a coal mine; (g) a manufacturer, importer or supplier of substances for use at a coal mine; (h) a person who supplies a service at a coal mine. (3) If a corporation has an obligation under this Act, an officer of the corporation has obligations under division 3A (also safety and health obligations).” -- 12 of 25 -- 13 [22] By individual sections, obligations are specifically imposed upon the persons identified in s 33. While the various obligations which attach to persons holding particular offices varies, the constant theme is to ensure that the risk to persons from coal mining is at an “acceptable level”.8 [23] BM is the coal mine operator. Section 41 provides: “41 Obligations of coal mine operators (1) A coal mine operator for a coal mine has the following obligations— (a) to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state … (c) not to carry out an activity at the coal mine that creates a risk to a person on an adjacent or overlapping petroleum authority if the risk is higher than an acceptable level of risk; (d) to appoint a site senior executive for the mine; (e) to ensure the site senior executive for the mine— (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; …” (emphasis added) [24] Section 41(1)(d) obliges the operator of a coal mine to appoint a Site Senior Executive who is the most senior officer employed at a coal mine and has overall responsibility for the coal mine.9 Section 41(1)(e) obliges a coal mine operator to ensure that the Site Senior Executive develops and implements a safety and health management system for the mine. Both these things have occurred. [25] Section 42 imposes obligations upon Site Senior Executives. It provides, relevantly: “42 Obligations of site senior executive for coal mine A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations— (a) to ensure the risk to persons from coal mining operations is at an acceptable level; 8 Section 39(1)(c), persons generally; s 41(1)(a), coal mine operators; s 42(a), senior site executives; s 44(1), designers, manufacturers, importers and suppliers of plant; s 45(a), erectors and installers of plant; s 45A(2)(a), designers, constructors and erectors of earthworks; s 46(1)(a), manufacturers, importers and suppliers of substances. 9 Section 25(1). -- 13 of 25 -- 14 (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work is at an acceptable level; (c) to develop and implement a safety and health management system for all persons at the mine, including contractors and service providers …” (emphasis added) [26] Section 34 creates criminal offences for breaching safety obligations. In practical terms, the safety obligations will be breached if the risk is above the lowest level of risk reasonably achievable.10 [27] Division 3 of Part 4 concerns safety and health management systems. Section 62 relevantly provides: “62 Safety and health management system (1) The safety and health management system, for a coal mine, is a single system that incorporates risk management elements and practices that ensure the safety and health of persons who may be affected by coal mining operations. … (5) The safety and health management system must be adequate and effective to achieve an acceptable level of risk by— [a number of specific requirements are listed]” (emphasis added) [28] Part 9 of the CMSH Act establishes the office of inspectors, including that of Chief Inspector.11 The inspectors, including the Chief Inspector, are appointed by the Chief Executive Officer of a statutory body established under the Resources, Safety and Health Queensland Act 2000. [29] The inspectors are given various powers by Part 9, including the power to give directives.12 As already observed, s 166 empowers an inspector to give a directive to reduce risk and s 168 empowers an inspector to give a directive to review (relevantly here) the mine’s safety and health management system. Sections 166 and 168 relevantly provide: “166 Directive to reduce risk (1) If an inspector or inspection officer reasonably believes a risk from coal mining operations may reach an unacceptable level, the inspector or officer may give a directive to any person to take stated corrective or preventative action to prevent the risk reaching an unacceptable level. (2) The directive may be given orally or by notice. 10 Coal Mining Safety and Health Act 1999, s 29(1)(b). 11 Section 125(2). 12 Division 5 of Part 9. -- 14 of 25 -- 15 (3) If the directive is given orally, the person giving the directive must confirm the directive by notice to the person in control of the mine or part of the mine affected by the directive and to the relevant site senior executive. (4) Failure to comply with subsection (3) does not affect the validity of the directive. … 168 Directive to review safety and health management system and principal hazard management plans If an inspector believes the safety and health management system or a principal hazard management plan for a coal mine is ineffective, the inspector may give a directive to review the safety and health management system or the principal hazard management plan and make it effective.” [30] Part 14 of the CMSH Act provides for appeals from various decisions. As already observed, Mr le Roux is the Chief Inspector. Division 2 of Part 14 concerns appeals from the Chief Inspector. Sections 243, 245,13 246 and 24814 provide relevantly as follows: “243 Who may appeal A person whose interests are affected by the following may appeal to the Industrial Court— (a) a decision of the chief inspector under section 149(3)(a) to retain a seized thing; (b) a directive given by the chief inspector; (c) a review decision of the chief inspector under part 9, division 5, subdivision 4. … 245 Stay of operation of directive or review decision (1) The Industrial Court may grant a stay of a directive or review decision appealed against to secure the effectiveness of the appeal. (2) A stay— (a) may be given on the conditions the court considers appropriate; and (b) operates for the period fixed by the court; and (c) may be revoked or amended by the court. (3) The period of a stay must not extend past the time when the court decides the appeal. (4) An appeal against a directive or review decision affects the directive or decision, or the carrying out of the 13 Section 244 regulates how an appeal may be started and is not relevant for present purposes. 14 All within Part 14, Division 2. -- 15 of 25 -- 16 directive or decision, only if the directive or decision is stayed. (5) However, the following must not be stayed— (a) a directive by the chief inspector under section 167; (b) a review decision about a directive given by another person under section 167. 246 Hearing procedures (1) The procedure for an appeal is to be in accordance with the rules of court or, if the rules make no provision or insufficient provision, in accordance with directions of the Industrial Court. (2) An appeal is by way of rehearing, unaffected by the chief inspector’s review decision or a directive given. … 248 Powers of court on appeal (1) In deciding an appeal, the Industrial Court may— (a) confirm the directive or decision appealed against; or (b) vary the directive or decision appealed against; or (c) set aside the directive or decision appealed against and make a directive or decision in substitution for the directive or decision set aside; or (d) set aside the directive or decision appealed against and return the issue to the person who gave the directive or to the maker of the decision with directions the court considers appropriate. (2) If on appeal the court acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the chief inspector or the person who gave the directive. (3) The court may make an order for costs it considers appropriate.” Consideration [31] A court to whom an appeal has been lodged in a civil matter generally has jurisdiction to stay the operation of the judgment or order under appeal.15 [32] Both directives were aimed at the mine’s Site Senior Executive, not BM. There is no doubt though that BM, being the mine operator, is a “person whose interests are 15 Uniform Civil Procedure Rules 1999, r 761. -- 16 of 25 -- 17 affected by … [the directives]”16 and has the right both to appeal17 and apply for a stay of the directives.18 [33] By s 246(2), the “appeal” is not a proceeding designed to correct error in the classic sense,19 but a hearing de novo,20 which is hardly surprising given that the appeal is from an executive decision made without hearing.21 [34] It is well-established that in order to obtain a stay, an appellant must normally show: “1. a good arguable case on appeal; 2. that the appellant will be disadvantaged if a stay is not ordered; 3. that competing disadvantage to the respondent should the stay be granted does not outweigh the disadvantage suffered by the appellant if the stay not be granted.”22 [35] While adopting a similar approach, Keane JA (as his Honour then was) observed in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:23 “… The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation.”24 [36] Here, the stay is not sought, either in the inherent or implied jurisdiction of the court, or under rules of court. The jurisdiction is bestowed expressly by s 245 of the CMSH Act.25 [37] In BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health Queensland,26 Vice President O’Connor considered s 245 of the CMSH Act. He said, in apparent acceptance of a submission from the applicant in the case: “Stay application principles [8] The principles governing the exercise of a discretionary power to stay were enumerated by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Ltd.27 Those principles can be summarised as follows: 16 Section 243. 17 Section 243. 18 Section 245. 19 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. 20 Dalliston v Taylor [2015] ICQ 017 at [11]-[12]. 21 Aldrich v Ross [2001] 2 Qd R 235 at [28] and following. 22 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [8] and followed in Raschilla v Westpac Banking Corporation [2010] QCA 255. 23 [2008] 2 Qd R 453. 24 At [12] and see also Jesasu Pty Ltd v Minister for Mineral Resources (1987) 1 NSWLR 110. 25 Which appears at paragraph [31] of these reasons. 26 [2021] ICQ 1. 27 (1985) 2 NSWLR 685. -- 17 of 25 -- 18 1. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties. 2. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus. 3. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties. 4. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. 5. The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.” [38] No doubt the principles identified by the Vice President are relevant and correct. [39] The discretion must be exercised for the purpose for which it was bestowed.28 Identification of that purpose, in order to reveal the considerations relevant to the exercise of discretion, is an exercise in statutory interpretation29 to discern the meaning of the text of the section having regard to its context, including of course its position within the CMSH Act as a whole.30 [40] One contextual consideration to which I will return is the fact that the CMSH Act is protective legislation designed to minimise risk at work of workers at coal mines. [41] Section 245(1), as its operation is modified by s 245(2) and, subject to the qualifications in s 245(3), (4) and (5): 1. gives a discretion to grant a stay; see the term “may grant a stay of a directive …”; 2. for a particular purpose, namely “to secure the effectiveness of the appeal”. [42] The parties submitted that the exercise of discretion under s 245 involves a two step process. It was submitted that firstly, it must be shown that the stay is necessary to “secure the effectiveness of the appeal”, and then a discretion arises to grant the stay. That is not, in my view, the correct approach. [43] Often, legislation will bestow a discretionary power upon a person or court, whether the power is executive or judicial in nature, provided a jurisdictional fact is found. 28 Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630 and Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 per Kirby and Callinan JJ at [69] and [70] in dissent on other issues. 29 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24. 30 R v A2 (2019) 269 CLR 507 at [31]-[37]. -- 18 of 25 -- 19 [44] Examples abound. Police, for instance, may exercise powers if they “reasonably believe” or “reasonably suspect” stated things.31 In Hunt v Dr John Gerrard, Chief Health Officer,32 the Court of Appeal considered the power of the Chief Health Officer to give health directions which arises once the Chief Health Officer “reasonably believes it is necessary to give a direction … to assist in containing … the spread of COVID-19 …”. Section 166 of the CMSH Act, which empowers Mr le Roux to give a directive, conditions that power on jurisdictional facts based on his reasonable belief of things. [45] Under s 245 of the CMSH Act, read with s 244, the power to stay a directive arises: 1. if a directive is given; and 2. an appeal is lodged. [46] They are the true jurisdictional facts which give rise to the discretion. There is no other jurisdictional fact which has to be proved before the discretion is exercised. However, if exercised, the discretion may only be for one specific purpose, namely “to secure the effectiveness of the appeal”. [47] The term “may grant a stay of a decision to secure the effectiveness of the appeal” is not unique to the CMSH Act. That term appears in s 539B of the Environmental Protection Act 1994 and its predecessor s 535(1), s 119 of the Child Protection Act 1999, s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 351 of the Health Practitioners (Professional Standards) Act 1999. [48] Judges of the District Court, sitting in the Planning and Environment Court, have considered the Environmental Protection Act provisions. [49] In Bond v Chief Executive, Department of Environment and Science,33 Muir DCJ (as her Honour then was) considered s 539B(2) and observed “the express statutory power to order a stay in a case such as the present only arises when this Court is satisfied that such an order is necessary to ‘secure the effectiveness of the appeal’”.34 [50] Her Honour’s resort to necessity may be misplaced. One can imagine cases where it is unlikely that damage sustained by the directive remaining in place would be able to be reversed, but perhaps it could. In these circumstances, at the time of considering the stay, the granting of the stay may not strictly be “necessary”, but the discretion would surely arise. The granting of a stay in that circumstance would “secure the effectiveness of the appeal” by improving the prospects that the fruits of an appeal will be available in the event of success. [51] In an earlier case, Cougar Energy Ltd v Chief Executive Under the Environmental Protection Act 1994,35 Jones DCJ considered s 535(1) of the Environmental Protection Act, as it then stood, and made, relevantly here, two observations as to principles applicable to applications for a stay under the legislation. His Honour said: 31 Police Powers and Responsibilities Act 2000, s 48, s 143, s 177, s 179, s 645. See generally George v Rockett (1990) 170 CLR 104 at 111-112. 32 [2022] QCA 263. 33 [2022] QPELR 191. 34 At [22], (emphasis added). 35 [2012] QPELR 370. -- 19 of 25 -- 20 “The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the court are fully effective.” And posed as a relevant question to the exercise of discretion: “… will the Applicant for the stay be irreparably prejudiced if the stay is not granted.”36 [52] Broadly, the first observation of his Honour can be accepted, but not the second, at least to the extent that “irreparably prejudiced” might be considered synonymous with “irreversible”. [53] Cases can be imagined where compliance with the directive may cause enormous inconvenience, but the measures taken in compliance with the directive could be reversed so as to re-establish the position before the directive was given. The fact that the recipient of the directive may be able to be restored to its original position could not exclude exercise of the discretion to grant a stay. The inconvenience would, depending upon all the circumstances, be relevant to a consideration of the “effectiveness of the appeal”. [54] Both the judgments in the Planning and Environment Court illustrate the dangers in placing a gloss on the words of the statute. [55] It is common ground that the remedy is discretionary. The parties both submit that raises consideration of both prospects of success by BM and the balance of convenience.37 [56] The strength or otherwise of the applicant’s case on appeal is a relevant consideration. It helps inform whether the effectiveness of the appeal ought to be preserved. The answer to that question would surely be “no” if there were no or little prospects. [57] Here, BM submits that a relevant consideration is “prejudice” to Mr le Roux. It is not correct to consider “prejudice” to Mr le Roux. Mr le Roux, like a prosecutor, holds a statutory position. Just as a prosecutor is not “aggrieved” by an acquittal,38 Mr le Roux is not prejudiced by a stay pending appeal. No private rights or property of Mr le Roux are affected. His only interest is to see the CMSH Act enforced.39 [58] As previously observed, the CMSH Act is protective. “More than purely private interests are at stake”.40 36 At [20]. 37 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] following Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623. 38 Walsh v Stephenson (1996) 68 IR 22. 39 See generally the observations of Applegarth J in Australian Leisure & Hospitality Group Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QSC 354 followed by Martin J (as his Honour then was) in Meghla v Prostitution Licensing Authority [2021] QSC 320. 40 Australian Leisure & Hospitality Group Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QSC 354 at [30]. -- 20 of 25 -- 21 [59] The proper approach is, in my respectful view, that undertaken by Chesterman JA in Attorney-General for the State of Queensland v Fardon.41 There, his Honour considered an application for a stay of an order releasing into the community a prisoner who had been detained beyond the expiry of his sentence pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). The prisoner had been determined to be an unacceptable risk of committing a serious sexual offence. Notwithstanding that finding, the order appealed was made on a determination that the prisoner could be adequately supervised in the community. Chesterman JA recognised that considerations relevant to the stay included the prospects of the prisoner doing harm to members of the public by committing serious sexual offences upon them. What was balanced by his Honour were the private rights of the prisoner and the public interest, namely the safety of citizens who the DPSOA is designed to protect. [60] An order to stay the directive has potentially serious ramifications. If the stay is granted but the directive ultimately upheld on appeal, then BM and its Site Senior Executive are in the meantime arguably committing offences against the CMSH Act. [61] Section 41 obliges BM to ensure that risk at the coal mine is “at an acceptable level”.42 Section 42(1) casts a similar obligation upon the Site Senior Executive. Section 29 defines “acceptable level of risk” as the level of risk which is “as low as reasonably possible”. It follows then that: 1. if the directive lowers risk; and 2. if the directive can be reasonably complied with; and 3. if the level of risk achieved by the directive is lower than that otherwise being achieved; then 4. by BM operating without complying with the directive, it is not achieving an acceptable level of risk; therefore 5. both BM and the Site Senior Executive will be in breach of their safety obligations and committing offences. [62] Each of the matters in paragraph [61], 1 to 3, will be questions on the appeal. [63] BM and the Site Senior Executive will also commit offences if the directive is not stayed and is not complied with.43 [64] Mr McMillan for BM identifies the following factors which he submits show that if a stay is not granted the appeal will be ineffective: 1. downtime and other costs incurred at the mine complying with the s 166 directive will be significant; 2. complying with the directive does not lower the risk but actually increases it. 41 [2011] QCA 111. 42 Section 41(1)(a). 43 Coal Mining Safety and Health Act 1999, s 174. -- 21 of 25 -- 22 Downtime and other losses at the mine [65] Under the present operating arrangements, where there are electrical storms approaching the mine, mining operations continue. Under the s 166 directive, operations concerning certain vehicles which roll on rubber tyres will cease, the vehicles will be driven to, and placed in a safe spot, the workers will retreat to safe buildings and wait out the storm. Although other activities may not be directly affected, compliance with the s 166 directive has the practical effect of temporarily shutting down the mine’s operations. Work would resume once the storm passed. There are approximately 355 vehicles which may be affected. [66] Mr McMillan, on behalf of BM, submits that: 1. An inference should be drawn that there will be significant financial losses suffered by BM while the mine is shut down. 2. Those losses will not be recouped. This is not a regime where undertakings as to damages are required or offered. 3. To the extent that losses cannot be recouped, the appeal will be rendered ineffective. [67] A coal mine is a very significant commercial operation involving large capital investment and a significant workforce. It is easy to draw the inference that if a mine is shut down losses will be significant. [68] However, as submitted on behalf of Mr le Roux, there is no, or virtually no evidence of any of the following: 1. the expected frequency of storms of a nature to cause the directive to be acted upon44; 2. the expected durations of such storms; 3. the time it is expected to take to shut down the mine; 4. the time it is expected to take to reactivate the mine; 5. the operating costs of the mine; 6. the quantum of the losses expected to be suffered upon shutdown in storm events. [69] In the absence of solid evidence of these things, it is not possible to evaluate in any meaningful way the effect of the directive upon BM pending trial. Will compliance with the directive actually increase risk? [70] The submissions by BM that the directive will increase risk of injury to workers is a matter of contention between the experts likely to be called in the case. [71] The vehicles in question are run on rubber tyres. There are two relevant risks which are said to be present during an electrical storm. The first is that lightning will strike 44 Mr T Gillespie does provide statistics on the frequency of lightning strikes, see Report of T Gillespie, dated 8 December 2022 sections 4.6, 5 and 6. -- 22 of 25 -- 23 the vehicle and electricity will pass into the passenger. The second is that as the electricity passes across the surface of the vehicle seeking earth it will cause a tyre on the vehicle to explode so the vehicle becomes uncontrollable and at risk of crashing and injuring either the occupants of the vehicle or persons in its path. [72] In the 19th century, an English scientist, Michael Faraday, discovered that if a thing (including a living thing) is in a metal object and electricity passes into the metal object, the electricity will pass through the metal object and to earth but will not pass into the thing in the metal object. [73] The metal object became known amongst scientists as a “Faraday cage”. BM’s expert, an engineer, Mr Tony Gillespie, says that the vehicles in question operate as effective Faraday cages. Therefore, if lightning strikes the vehicle, the electricity passes through the metal vehicle to earth and the driver and any other passengers are unaffected.45 [74] As the lightning strike passes across the vehicle and to earth, the force of the electrical current may cause tyres on the vehicle to explode. While Mr Gillespie accepts that a lightning strike hitting a metal vehicle may cause the explosion of one or more tyres, that can be avoided by inflating the tyres, not with air, but with a mixture heavy in nitrogen.46 [75] Mr le Roux’s experts47 give different opinions to that of BM’s experts. They say that the vehicles do not operate as effective Faraday cages and occupants are at risk of electrocution.48 They also say that inflation of the tyres with the nitrogen mix will not avoid blow-outs.49 [76] On my interpretation of the experts’ reports as they presently stand, it is common ground that even if the vehicles do not operate as effective Faraday cages, a person is more protected from a strike if in a vehicle than standing on open ground.50 This, BM submits, is significant because the directive requires workers to leave the vehicles and enter safety buildings. BM submits that during this transit the workers are more exposed to risk than if they remain in the vehicles and continue operating them as the present protocols provide. [77] There is no evidence as to the location of the safety buildings vis a vis the places where the vehicles would be parked. It is impossible then, as the evidence presently sits, to determine how far a worker would be expected to travel on foot over open ground after leaving a vehicle. [78] Mr le Roux counters all this by submitting that the directive operates so that the mine is shut down when the level 2 alert occurs, so when the storm is 30 kilometres from 45 Letter from T Gillespie, Power Engineering Consultant, to P Newman, Chief Inspector of Coal Mines, page 2-3, see also Report of T Gillespie, dated 13 January 2022, page 46 and also Report of T Gillespie, dated 8 December 2022 section 4.4. 46 Report of T Gillespie dated 8 December 2022, section 13.6-13.10. 47 R low and J Zhou of the University of Queensland and Mr D’Alessandro. 48 Report by UQ Materials Performance dated 6 September 2022, section 4.3.4 and 4.6.3. 49 Report by UQ Materials Performance dated 6 September 2022, section 4.3.4 and section 4.7.4. 50 Report by UQ Materials Performance dated 6 September 2022, section 4.3.4 and section 4.6.3, Report of Dr F D’Alessandro dated 27 July 2023, pages 4, 5, 25 and 30 and see also Report of T Gillespie dated 13 January 2022, page 3-4. -- 23 of 25 -- 24 the mine. Therefore, by the time of any danger of lightning strikes, the workers should have left the vehicles and be in the safety buildings. Conclusions [79] I was informed by both parties during argument that the s 168 appeal will follow the result of the s 166 appeal. [80] Section 166 gives Mr le Roux jurisdiction to make a directive where he “reasonably believes a risk from coal mining operations may reach an unacceptable level”. That jurisdictional fact gives rise to both a subjective state of mind and an objective finding. Mr le Roux must actually believe that risk may reach an unacceptable level and objectively that belief must be reasonable.51 [81] As already observed, the risk is only at an acceptable level if it is not at the lowest level reasonably achievable. The power vested in Mr le Roux is to give a directive “to take stated corrective or preventative action to prevent the risk reaching an unacceptable level”. On a proper construction of ss 29, 41, 42 and 245, as the power is to “prevent the risk reaching an unacceptable level”, the power is only exercisable if the directive lowers risk in the sense that the level of risk in an electrical storm with the s 166 directive being followed is lower than if it was not followed. [82] The appeal is a hearing de novo, so as regards the jurisdictional facts within s 166, it is the Court’s belief and the Court’s objective assessment which becomes relevant. The Court will hardly hold the belief unless it is reasonably held. [83] Therefore, the actual issues on appeal will be: 1. whether the s 166 directive in fact lowers risk; 2. is lowering risk in that way reasonably achievable? [84] BM also points to events in 2021 and 2022 concerning its Saraji Mine. Directives were given to BM concerning operations during electrical storms. Directives requiring the cessation of mining activities during electrical storms were given but ultimately withdrawn. This at least shows that views differ as to whether operations during electrical storms can safely continue. [85] BM has raised a clear prima facie case on the first factual question. It has produced expert evidence which supports its case. It is not contended by Mr le Roux that Mr Gillespie is not properly qualified to express the opinions which he expresses. [86] However, I decline to grant the stay in consideration of the purpose identified in s 245. [87] In particular: 1. the s 166 directive is reversible in that, if BM was successful in its appeal, the directive becomes of no effect and the position pertaining before the directive issued is restored; 51 See generally George v Rockett (1990) 170 CLR 104. -- 24 of 25 -- 25 2. true there will be financial losses suffered by BM but, in the absence of quantification of those losses, I do not find that the discretion to grant a stay should be exercised to secure the effectiveness of the appeal; 3. it is unlikely that compliance with the directive will increase risk. The safety obligation upon BM and its Site Senior Executive requires them to carry out the directive so no unacceptable risk arises. This obliges them to ensure that workers are in the safe building before the storm arrives; 4. Mr le Roux does not press compliance with the s 168 directive pending hearing of the appeal so amendments to the safety and health management system will not have to be reversed. 5. The objects of the CMSH Act are to protect the safety and health of persons working at coal mines.52 The public interest in the achievement of those objects favours the refusal of the stay. [88] For reasons earlier explained,53 the operation of the s 168 directive ought to be stayed pending appeal. [89] The application brought to stay the s 166 directive ought to be dismissed. [90] During the hearing, the parties agreed that the costs of the present applications should be reserved. That is appropriate. [91] It is ordered: 1. The application in appeal C/2023/44 is dismissed. 2. The application in appeal C/2023/45 is allowed and the directive is stayed pending determination of the appeal or earlier order. 3. In both applications, costs are reserved. 52 Section 6. 53 Paragraph [15] of these reasons. -- 25 of 25 --