Bucyrus Australia Surface Pty Ltd v McFadzen [2010] ICQ 52

CITATION: Bucyrus Australia Surface Pty Ltd AND Allen McFadzen (C/2010/71) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Coal Mining Safety and Health Act 1999 - s. 178 - application for stay Bucyrus Australia Surface Pty Ltd AND Allen McFadzen (C/2010/71) PRESIDENT HALL 20 December 2010 DECISION [1] On Thursday 16 December 2010, a Mr Allen McFadzen, Inspector of Mines, Central Region, issued a Directive under s. 169 of the Coal Mining Safety and Health Act 1999 (the Act). The mine which was named was the Peak Downs Dragline Erection Site. The operator was nominated as Bucyrus Australia Surface Pty Ltd. [2] Formal parts omitted there are, in essence, three elements to the Directive, viz.: (i) The SSE is to provide documented evidence of Mines Rescue capabilities for the Peak Downs Dragline Erection Site to the inspectorate in support of actions described in the Emergency Management Plan Section 6.3 Initial Action dot point 2; (ii) The SSE is to ensure that the Peak Downs Dragline Erection Site Emergency Plan is in compliance with the Coal Mining Safety and Health Regulation 2001, Part 5 Emergencies; and (iii) Pursuant to s. 169 of the Act, there is to be a suspension of operations for ineffective Safety and Health Management System, Part 13 Mines Rescue and Coal Mining Safety and Health Regulation 2001, Part 5 Emergencies. A reasonable time for compliance was set. Compliance was to occur by 24 December 2010. [3] On Saturday 18 December 2010, Bucyrus Australia Surface Pty Ltd by its Solicitors, made Application for a Review of the Directive pursuant to s. 175 of the Act. Amongst other things, the institution of proceedings for a Review triggered the jurisdiction of this Court at s. 178 of the Act to grant a Stay of the Directive. By an out of hours Application on Saturday 18 December 2010, Bucyrus Australia Surface Pty Ltd sought such a Stay. [4] The letter seeking a Review, which was written by a Senior Associate at the law firm acting for Bucyrus Australia Surface Pty Ltd, which is exhibited to an affidavit of the same Senior Associate filed in this Court, squarely raises a contention that the documentation sought by that which I have described as element (i) of the Directive, has already been complied with. A contention is also squarely raised that the matter of concern to Mr McFadzen goes to the adequacy of the Emergency Response Team arrangements at the site. A subsidiary issue arises as to whether the first element of the Directive may be supported by reference to considerations raised directly neither by the Directive, nor by the reasons for it. That being the sole evidence, pertinent to what I have described as the first element of the Directive, it seems to me that I am compelled to conclude that on that point there is a strong case to be argued. [5] As to the second element of the Directive, there is the formal difficulty that no reasons were seen to be identified. Further, the Directive seems to add nothing to the obligation already imposed by the Coal Mining Safety and Health Regulation 2001, Part 5 Emergencies. On the limited argument which I have had, I am not presently prepared to rule on whether either of those matters is fatal to the validity of the second element of the Directive. [6] The real problem is the direction to suspend operations. It is plain that that element of the Directive arises from differences between Mr McFadzen and Bucyrus Australia Surface Pty Ltd about safety standards on the site. The difficulty is that the matter was dealt with as a matter of urgency. Mr Small was compelled to speculate about the reasons for the suspension on the basis of conversations recounted to him. The Respondent was unable to obtain proper instructions to meet the case mounted against it on Saturday 18 December 2010. Subsequently, on Sunday 19 December 2010, an (un-sworn) document setting out the Respondent's safety concerns was provided to the Court. On the materials before me, I am quite unable to determine the adequacy of safety arrangements on the site. It must be remembered that the Stay is being sought of an order made by a Public Officer in an administrative way. The proper challenge is by way of the Review proceedings with an Appeal to this Court if the Review proceedings fail to resolve the issues between the parties. It is not an appropriate use of the power at s. 178 of the Act for this Court to introduce a system under which Directives do not take effect until after the Appeal by hearing de novo. -- 1 of 2 -- 2 [7] As to the matter of balance of convenience, the Senior Associate has sworn to the fact as to the losses which may arise from the suspension of operations in consequence of Bucyrus Australia Surface Pty Ltd's ongoing obligation to its staff and contractors and in consequence of its potential liabilities under liquidated damages clauses if it fails to complete the dragline on time. In all cases, the Senior Associate has sworn to the facts. Neither the relevant industrial instruments nor the terms of the penalty clauses are exhibited. In the nature of things, the Respondent has been unable to quantify the risk to workers and other entrants upon the site. The Respondent has been able to advise that there is every prospect that the Review will be completed on either Monday 20 December 2010 or Tuesday 21 December 2010. There is much to be said for the view that convenience is best served by declining to grant a Stay. [8] However, late on Sunday 19 December 2010, the Solicitors for Bucyrus Australia Surface Pty Ltd informed the Court that there is prospect of providing a Risk Assessment on 20 December 2010. In those circumstances, I Order that the Directive be stayed until 1.00 p.m. on 21 December 2010, or further Order of the Court. Dated 20 December 2010. D.R. HALL, President. Released: 20 December 2010 Appearances: Mr C. Murdoch, instructed by McCullough Robertson Lawyers for the Applicant. Ms T. Jackson, Director of Legal Services, Queensland Mines and Energy, for the Respondent. -- 2 of 2 --