Industrial Relations Commission of New South Wales in Court Session CITATION: Rodney Morrison v Eureka Opals Pty Limited [2005] NSWIRComm 437 APPELLANT Rodney Dale Morrison PARTIES: RESPONDENT Eureka Opals Pty Limited FILE NUMBER(S): IRC 1737 of 2005 CORAM: Wright J President; Walton J Vice-President; Boland J Appeal - Leave to appeal - Occupational health and safety - Section 17(1)(a) of Occupational Health and Safety Act 1983 - Respondent was owner of opal mining Claim - Person injured by roof fall - Whether Claim was "non-domestic premises" within the meaning of the Act - Whether Claim made available to persons not employed by the respondent - Whether Claim made available as a place of work - Whether respondent had, to any extent, control of the Claim - Whether respondent failed to ensure Claim and the means of access thereto or egress therefrom were safe and without risk to health - Defences under s 53 of Occupational Health and Safety Act 1983 - Legal and factual errors found to have occurred at first instance - Appeal upheld CATCHWORDS: Occupational health and safety - Appeal - Section 17(1)(a) of Occupational Health and Safety Act 1983 - Respondent was owner of opal mining Claim - Person injured by roof fall - Whether Claim was "non-domestic premises" within the meaning of the Act - Whether Claim made available to persons not employed by the respondent - Whether Claim made available as a place of work - Whether respondent had, to any extent, control of the Claim - Whether respondent failed to ensure Claim and the means of access thereto or egress therefrom were safe and without risk to health - Defences under s 53 of Occupational Health and Safety Act 1983 - Legal and factual errors found to have occurred at first instance - Appeal upheld Industrial Relations Act 1996 Mining Act 1992 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Supreme Court (Summary Jurisdiction) Act 1967 House v The King (1936) 55 CLR 499 Rodney Dale Morrison v Eureka Opals Pty Limited [2005] NSWIRComm 80 CASES CITED: Rodney Dale Morrison v Peter James Buchanan [2004] NSWIRComm 223 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 HEARING DATES: 10/26/2005 DATE OF JUDGMENT: 11/25/2005 APPELLANT Mr M Scott of counsel Solicitor: I V Knight Crown Solicitors Office LEGAL REPRESENTATIVES: RESPONDENT Mr I Latham of counsel Solicitor: Mr B Muir Brian Muir & Company JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Walton J, Vice President Boland J Friday 25 November 2005 Matter No IRC 1737 of 2005 RODNEY DALE MORRISON v EUREKA OPALS PTY LIMITED Application for leave to appeal and appeal against a judgment of Justice Staunton given on 16 March 2005 in matter no IRC 1593 of 2002 JUDGMENT OF THE COURT [2005] NSWIRComm 437 1 This is an application by Rodney Dale Morrison ("the appellant") pursuant to s 197A of the Industrial Relations Act 1996 for leave to appeal and, if leave is granted, an appeal from a judgment and orders of Staunton J in Rodney Dale Morrison v Eureka Opals Pty Limited [2005] NSWIRComm 80. The judgment was given on 16 March 2005. In subsequent orders made on 24 October 2005 her Honour dismissed the charge brought by way of summons issued under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 as applied by s 168 of the Industrial Relations Act against Eureka Opals Pty Limited ("the respondent"). An order for costs was also made her Honour but the Full Bench stayed that order until further order of the Court. The stay was not opposed by the respondent. 2 In deciding that she would dismiss the charge Staunton J found that she was not satisfied beyond a reasonable doubt that the respondent had sufficient ability to control to any extent non-domestic premises in the form of an underground opal mine such control being an essential element of the offence created by s 17(1)(a) of the Occupational Health and Safety Act 1983. 3 Section 17(1)(a) provides: 17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom... ... shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. Factual background 4 The prosecution of the respondent arose out of an incident that occurred on 28 March 2000 when a part of the roof of an underground opal mine collapsed. At the time of the collapse the mine was being worked by Peter Buchanan and Anthony Kennedy. Mr Kennedy was seriously injured. Neither Mr Buchanan nor Mr Kennedy were employees of the respondent. The mine was located at Dead Bird Opal Field at Lightning Ridge and the respondent was the registered claim holder of the mine, which was known as Claim 26313. 5 The charge brought against the respondent was that being the controller of non-domestic premises (i.e., Claim 26313) that was made available as a place of work, the respondent did fail on 28 March 2000 to ensure the premises, and the means of access thereto or egress therefrom, were safe and without risk to health. The particularised failures of that charge were that the respondent: (i) Failed to ensure that the shaft used for access remained uncluttered and able to be used in an emergency situation to retrieve injured persons. (ii) Failed to ensure that the ladders used to gain access to the mine were properly secured and not swinging. (iii) Failed to ensure that adequate and proper propping and/or bracing of the roof took place. (iv) Failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine. (v) Failed to develop and put in place an emergency procedure. (vi) Allowed the roof collar to be over excavated so as to reduce its support. 6 The defendant pleaded not guilty. Proceedings had also been brought against Peter Buchanan under s 16(2) of the Occupational Health and Safety Act 2000. In that prosecution the defendant entered a plea of guilty. That matter was dealt with, a conviction entered and penalty imposed: See Rodney Dale Morrison v Peter James Buchanan [2004] NSWIRComm 223. 7 The respondent was an entity associated with the Buchanan family. As at 28 March 2000, two brothers, Wayne and Darryl Buchanan, were directors of the respondent. The third brother, Peter, who was working the Claim in question on the day of the accident was not a director of the respondent. Kevin Buchanan, the father of the three brothers, was also a director as at 28 March 2000. 8 As Staunton J noted in her judgment at [23], the ability to undertake mining in the Lightning Ridge area was dependant on the registration of a mineral claim. That registration is effected by the Department of Mineral Resources on the payment of a fee pursuant to the provisions of the Mining Act 1992. The evidence was that the respondent became the registered claim holder in respect of Claim 26313 on or around 14 June 1995. 9 The evidence indicated that prior to 14 June 1995 the claim holder of Claim 26313 was Ms Fiona Johnson, the de facto partner of Peter Buchanan. The reason why it was said Ms Johnson was the registered claim holder and not Peter Buchanan was that whilst Peter Buchanan worked the Claim he was not able to be the claim holder because he had two other claims registered in his name. Wayne Buchanan said in his evidence that the two-claim limit arose from the provisions of s 90 of the Mining Act but that section bears no relevance whatsoever to the number of claims a claim holder may hold. It would appear that an order may be made by the relevant Minister under s 175(2)(c) of the Mining Act as to the maximum number of mineral claims that may be held by any one person but no such order was drawn to our attention in relation to the number of claims held by Peter Buchanan and Staunton J did not refer to any such order. 10 In any event, the relationship between Peter Buchanan and Ms Johnson broke down and Ms Johnson transferred the Claim to the respondent apparently as a "gift". Kevin Buchanan signed as transferee on behalf of the respondent. Peter Buchanan continued to work the Claim. In this respect, Staunton J found at [25]: 25 When the relationship between Ms Johnson and Peter Buchanan broke down in 1995, Ms Johnson relocated to Melbourne. Because of his already existing claims, it was not possible for Peter Buchanan to register the Claim in his name in order to continue to work it. At that time, to overcome that fact and with the agreement of Kevin Buchanan, the father of Peter Buchanan and a director of Eureka, the transfer of Claim 26313 from Ms Johnson to Eureka was effected. Ms Johnson transferred the Claim as a gift, and Kevin Buchanan signed as transferee on behalf of the defendant. 11 Kevin Buchanan died in 2002 and since that time Wayne Buchanan, as a director of the respondent, renewed the claim as required by the relevant legislation on an annual basis. However, it was Peter Buchanan who paid the annual renewal fee. 12 Staunton J considered that the evidence was that the respondent was simply acting as a "corporate vehicle" to facilitate Peter Buchanan's ability to prospect on Claim 26313. The respondent's involvement was limited to being the legally registered claim holder, whereas, for all practical purposes, the 'owner' of the Claim and the person who actively worked the claim was Peter Buchanan. Decision at first instance 13 In dismissing the summons Staunton J was of the opinion that Peter Buchanan occupied and was in control of the Claim and that the respondent did not have control of, or the ability to control, to any extent, the relevant premises. At [42]-[43] and [50]-[51] her Honour stated: 42 In a practical sense, the evidence strongly points to the conclusion that Peter Buchanan occupied Claim 26313 with an understanding on the part of Eureka that it was he who attracted the controlling authority and ability inherent in the position of registered claim holder. The fact that the claim had been registered to Eureka was more by way of convenience or contrivance rather than suggesting that Eureka was at all times the true occupier of the Claim or had any role in controlling the mining activities undertaken within it. 43 The relevant consideration is whether, despite the fact that Peter Buchanan was for all intents and purposes directly in control of all activities relating to Claim 26313, Eureka had the ability to exercise control. That is, as contemplated in McMillan Britton and Kell Pty Limited [ McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464], '.... the ability ... to compel corrective action to ensure safety ...'. The answer in my mind, given the facts and circumstances of this matter, must be no. It could not be suggested that the purpose of s 17(1)(a) is to impose absolute liability on a party who did not, for all practical purposes, have control of, or the ability to control, to any extent, the relevant premises. To that extent, any legal rights bestowed upon Eureka as the registered claim holder by s 5 of the Mining Act must viewed in the light of its practical application to satisfy the test in s 17(1)(a). The evidence is that while there was a technical legal right of the registered claim holder, Eureka, to restrict access, that right, as far as Claim 26313 was concerned, was vested entirely in Peter Buchanan. In that sense, there was no practical ability on the part of the defendant in these proceedings to control by way of compulsion the mining activities undertaken on Claim 26313 to any relevant extent. ... 50 Overall, the evidence is one whereby the Buchanan family, via the entity of Eureka, facilitated Peter Buchanan's continuing possession and mining of Claim 26313. Beyond the signing of the claim renewal application, there is no evidence that Eureka took any interest in the operation of the claim, leaving that entirely to Peter Buchanan. The only control Eureka had in relation to Claim 26313 might well have arisen if there had been a falling out between the Buchanan brothers that resulted in Wayne Buchanan refusing to renew Claim 26313 in the name of Eureka. That possibility does not, in my view, establish to the requisite standard that the persons who were the controlling mind of Eureka, Wayne Buchanan and Darryl Buchanan, had the ability by way of authority, to any extent, to compel, direct or command Peter Buchanan to undertake any particular action in the operation of Claim 26313. 51 Given the factual evidence, the practical effect of the arrangement between Peter Buchanan and Eureka meant that the ability to control Claim 26313 in its entirety rested with Peter Buchanan. Unlike the Growth Equities [ WorkCover Authority of New South Wales (Inspector Page) v Woolworths Ltd [1994] NSWIRComm 95] matter, Eureka was never in control of Claim 26313 prior to its occupation by Peter Buchanan. It was always his to control and mine. Registration of the claim passed directly from Ms Johnson to Eureka so that Peter Buchanan was able to continue working the Claim. Whilst the name of the legally registered claim holder changed, the practical effect did not. That is, Peter Buchanan continued to exercise sole control over the Claim, as he presumably did when Ms Johnson was the registered claim holder. Grounds of appeal 14 There were ten grounds of appeal: a. The proper interpretation and ambit of s.17(1)(a) of the Act. b. The trial judge erred in failing to find that the Defendant had control to an extent of non-domestic premises being opal mine Claim 26313. c. The trial judge erred in failing to find that as a consequence of being a claim holder of an opal mine that the Defendant had, to some extent, control of non-domestic premises being the opal mine Claim 26313. d. The trial judge erred in law in failing to find that the Defendant failed to ensure that the shaft used for access to the mine remained uncluttered and able to be used in an emergency situation to retrieve injured persons. e. The trial judge erred in failing to find that the Defendant failed to ensure that adequate and proper propping and/or bracing of the roof took place. f. The trial judge erred in failing to find that the Defendant failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine. g. The trial judge erred in failing to find that the Defendant failed to develop and put in place an emergency procedure. h. The trial judge erred in law in finding that whilst the Defendant had a " technical legal right of the registered claim holder, Eureka, to restrict access … there was no practical ability on the part of the defendant … to control by way of compulsion the mining activities undertaken on Claim 26313 to any relevant extent ". i. The trial judge erred in law in having regard to a concept of control " for all practical purposes " in considering the question of whether the Defendant had control to any extent of the non-domestic premises. j. The trial judge erred in law and in fact in finding that the Defendant " was never in control of claim 26313 prior to its occupation by Peter Buchanan ". On such other grounds as to the Commission seem proper. Leave to appeal 15 Leave to appeal is required in appeals under s 197A of the Industrial Relations Act: Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59 at [59]. The appellant submitted leave should be granted on the following grounds: (1) That it was in the public interest that decisions of the Industrial Relations Commission in Court Session provide a consistent basis for the interpretation of s 17(1)(a) of the Occupational Health and Safety Act. (2) That it was in the public interest that the issue of what constitutes a necessary level of control so as to bring a defendant within the scope of s 17 of the Act be determined in circumstances where her Honour has found that the respondent "(had) a technical legal right of the registered Claim holder, Eureka, to restrict access ... " (3) That the issue of what constitutes a necessary level of control is relevant to an interpretation of s 10(4)(a) of the Occupational Health and Safety Act 2000 and to the words "…a person who has only limited control…" (4) That Staunton J appeared to be suggesting that the respondent entered into an arrangement with Mr Peter Buchanan to become the claim holder of Claim 26313 because Mr Peter Buchanan was unable to become the claim holder of that claim as he was restricted by a condition imposed by an order made under s 175 of the Mining Act . The appellant submitted that what was implied in her Honour's reasoning was an understanding by persons engaged in opal mining in the area of Lightning Ridge that if a person holds a mining claim, they may do so without recognising any legal obligation as to the occupational health and safety of persons working on those claims. The appellant submitted that it was in the public interest that this misconception be overcome so that persons who are claim holders are aware of their obligation with regard to the occupational health and safety of persons working upon their claims. 16 The respondent submitted that the decision did not raise substantial issues of principle or law. It involved findings as to a narrow and unusual factual situation. It was submitted the practical application of the decision beyond those facts was negligible and, accordingly, leave should be refused. 17 The question of whether the respondent had to any extent, control of Claim 26313 is a mixed question of fact and law. We consider that the decision of Staunton J contained both factual and legal error.. We propose to grant leave to appeal. Issues on appeal 18 The appellant's grounds of appeal and the respondent's submissions on the appeal raise two essential issues for consideration by the Full Bench: (1) Whether the respondent had "to any extent, control of" Claim 26313 at the relevant time, namely 28 March 2000. (2) Whether the appeal should be dismissed on other grounds (that we shall come to) if the appeal is upheld on the question of control. 19 The respondent, in its written submissions, raised the issue of whether the appeal was competent on the basis that at the time those submissions were prepared no order had been made by her Honour dismissing the charge. With the making of the necessary order on 24 October 2005 the issue of the competency of the appeal evaporated and was not pressed by the respondent. 20 Whilst there were two central issues on appeal, and her Honour's focus was on the issue of control, the difficulty for the Full Bench is that given we consider her Honour erred in acquitting the respondent on the ground that it did not have the requisite control, we are left with either having to remit the matter back to her Honour to determine whether the other elements of the offence have been made out or consider those issues and determine them on appeal. Given that there is some uncertainty about the power to remit and the parties were not in a position to assist the Full Bench on that question, we have decided we should determine the question of guilt. 21 That means we are required, on the appeal, to answer the following questions: (1) was Claim 26313 "non-domestic premises" within the meaning of the Act, (2) was Claim 26313 made available to persons not employed by the respondent, (3) was Claim 26313 made available as a place of work, (4) did Eureka have, to any extent, control of Claim 26313; and, if the answer to each of the above questions is "yes", (5) did the respondent fail to ensure Claim 26313 and the means of access thereto or egress therefrom were safe and without risk to health? The legislative scheme 22 Before going to the questions posed above it is necessary to refer to the relevant legislation regulating the mining of Claim 26313. The principal piece of legislation was the Mining Act. The relevant Parts of that Act were Part 2 - Prospecting and mining generally and Part 9 - Mineral claims. Claim 26313 was on Crown Land. Section 5 of the Mining Act, found in Pt 2, provides: A person must not prospect for or mine any publicly owned mineral on any land otherwise than in accordance with an authority, mineral claim or opal prospecting licence that is in force in respect of that mineral and that land. Maximum penalty for prospecting in contravention of this section: 200 penalty units. Maximum penalty for mining in contravention of this section: (a) 1,000 penalty units or imprisonment for 5 years, or both, in the case of an offence dealt with on indictment, or (b) 200 penalty units or imprisonment for 2 years, or both, in the case of an offence dealt with summarily. 23 Any person may apply for a mineral claim: s178. The mining registrar may grant or refuse a mineral claim: s 190. A mineral claim is subject to conditions under s192: 192 Conditions of mineral claim (1) A mineral claim is subject to: (a) in the case of a mineral claim that is granted over land within a mineral claims district: (i) any special conditions that apply to the land, and (ii) the conditions imposed on the holder of the claim under section 211 as to his or her exercise of any right of way under that section in respect of the claim area, and (iii) the conditions to which the holder of the claim is subject pursuant to any registered access management plan in force in respect of that land, and (iv) such other conditions (not inconsistent with the conditions referred to in subparagraphs (i), (ii) and (iii)) as the mining registrar may impose, and (b) in any other case—such conditions as the mining registrar may (in accordance with the regulations) impose. (2) Without limiting the generality of subsection (1), a condition may be imposed on a mineral claim requiring the holder of the claim to pay royalty to the Minister on any minerals recovered under the claim. (3) Part 14 applies to royalty payable under such a condition in the same way as it applies to royalty payable on a mineral recovered under a mining lease. 24 Regulation 30 of the Mining Regulation 2003 provides: 30 Conditions of mineral claim For the purposes of section 192 (1) (b) of the Act, the conditions to which a mineral claim referred to in that paragraph is to be subject: (a) must include: (i) any conditions as to mining safety that the chief inspector of mines may require, and (ii) any conditions that the Director-General may require, and (iii) in the case of land within an exempted area—any conditions that the controlling body for the area may require, and (b) must not, except to the extent required by paragraph (a), include conditions other than those approved by the Director-General. 25 Section 195 of the Mining Act provides: 195 Rights under mineral claim (1) The holder of a mineral claim granted in respect of a mineral or minerals may, in accordance with the conditions of the claim, prospect for and mine the mineral or minerals in respect of which the claim is granted and may, in connection with any such prospecting or mining: (a) erect buildings and structures, and (b) exercise any rights in the nature of easements, and (c) carry out mining purposes, and (d) remove from the claim area any timber, stone or gravel. (1A) The holder of a mineral claim granted in respect of a mining purpose or mining purposes only may, in accordance with the conditions of the claim, carry out the mining purpose or mining purposes specified in the certificate relating to the claim. (2) If an application for an assessment lease or mining lease is made by the holder of a mineral claim, the claim continues in force until the application is finally disposed of. 26 The holder of a mineral claim may, from time to time, apply for renewal of the claim, which must be accompanied by the appropriate lodgement fee: s 197. The mining registrar may renew or refuse the renewal application: s 198. Section 200 provides: 200 Application for transfer (1) The holder of a mineral claim may apply for the transfer of the claim to some other person. (2) An application for the transfer of a mineral claim: (a) must be accompanied by the appropriate lodgement fee, and (b) must be lodged with the mining registrar for the mining division within which the claim area is situated, and (c) must be accompanied by the written consent of the proposed transferee, and (d) must be accompanied by a copy of the relevant notice served under subsection (2A). (2A) Notice of an intention to make an application under this section must be given by the applicant to the landholder of the land to which the mineral claim relates. (3) The mining registrar may defer consideration of an application that is the subject of legal proceedings, or of an inquiry under this Act, pending the outcome of those proceedings or that inquiry. 27 The foregoing provisions constituted the statutory underpinning for: (1) The grant of Claim 26313 to Ms Johnson: s 178; (2) The transfer of Claim 26313 to the respondent by Ms Johnson on 14 June 1995: ss 200 and 201; (3) The conditions applicable to Claim 26313: s 175, s 192, regulation 30; (4) The claim holder's rights under Claim 26313: s 195; (5) The renewal by the respondent of Claim 26313 between 1995 and 30 June 2000: ss 197 and 198; (6) The obligation to mine Claim 26313 only in accordance with the terms and conditions of the mineral claim: s 5 and s195(1A). 28 One of the conditions attaching to Claim 26313 at the relevant time was: The claim holder must conduct operations in a manner that does not endanger the safety of any person or any stock. In particular, the claim holder must ensure that all shafts and excavations are appropriately protected to ensure access to them by persons and stock is restricted... 29 It is apparent from the provisions of the Mining Act, the Regulation and the conditions attaching to Claim 26313 that the respondent had certain rights and obligations. For example, it had the right to sink shafts and carry out mining operations underground but, importantly, it also had an obligation to conduct operations in a safe manner, a matter we shall return to shortly. 30 We turn to the questions posed earlier. Non-domestic premises 31 There was no issue between the parties that Claim 26313 was "non-domestic premises" within the meaning of the Act. The mine was clearly non-domestic and the definition of premises under the Act includes any place and, in particular, any land: s 4. Was the Claim made available to non-employees as a place of work? 32 The second and third questions posed earlier may be conveniently dealt with together. The evidence was that the Claim was made available to persons not employed by the respondent as a place of work. Neither Peter Buchanan nor Mr Kennedy were employees of the respondent but it would appear Mr Kennedy may have been an employee of Peter Buchanan. Eureka was the registered claim holder. 33 It was common ground that the Claim was subject to the terms of s 5 of the Mining Act. However, there was no right vested in either Peter Buchanan or Mr Kennedy under an authority, mineral claim or prospecting licence to mine the Claim. It is apparent from the evidence that Peter Buchanan reached an agreement with his father, Kevin, as a director of the respondent, that he would work Claim 26313. Peter Buchanan's evidence was that after he broke up with his partner, the title of the mineral claim was transferred to the respondent and he reached an agreement with his father that he would continue, "to mine this claim as though nothing had happened". In cross examination Peter Buchanan was asked: So the end result of the agreement that you had was that you would continue to mine it, and you would pay the licence fees to your brother, who would pay the licence fees to the mining registrar? Peter Buchanan's answer was "Yes." The evidence of Wayne Buchanan confirmed the arrangement between Eureka and his brother Peter. 34 We also refer to the following exchange in the transcript of the proceedings: Counsel for the prosecutor/appellant : We submit, your Honour, that the evidence will show that Mr Wayne Buchanan, on behalf of the Defendant, gave permission to Mr Peter Buchanan to enter and work Claim 26313 in the Dead Bird field. Her Honour : I imagine that is not in dispute either. Counsel for the defendant/respondent : That is not in dispute. 35 It follows, in our opinion, that the respondent made Claim 26313 available to Peter Buchanan, a non-employee, as a place of work. Whether respondent had requisite control 36 There was an acceptance by both the appellant and the respondent of the test articulated in McMillan at 480-481 that: The obligation imposed by s.17(1)(b) on the appellant to ensure the plant was safe and without risks to health is to be so viewed and as assisting in the determination of whether it had at the relevant time the requisite degree of control over the subject plant as would make it liable. In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of "control" in the context of s.17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "command" - the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of "control" is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank. It may be thought that the words "to any extent" qualify the word "control" so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase "to any extent, control" means no more than that the person liable being able to compel (or direct or command) to any extent. 37 It may be noted that the Full Bench in McMillan was concerned with s 17(1)(b), whereas in the present appeal the alleged offence was under s 17(1)(a). The issue, however, relates to the meaning of "control" and the observations in that respect by the Full Bench in McMillan are equally applicable to s 17(1)(a): Workcover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 at 442. 38 After referring to McMillan, Staunton J stated at [17]: 17 To that extent, for the purposes of this prosecution, it must be established in relation to the premises known as Claim 26313, Eureka had control not simply to the extent of 'mere sway', 'checking' or 'restraint' but an ability to 'compel (or direct or command) to any extent'. Further, at [31] her Honour held: 31 In line with the authorities, for the purposes of s 17(1)(a) of the Act, for Eureka to have had, to any extent, control of Claim 26313, that control must be evidenced by an identifiable ability on the part of the defendant to compel, direct or command Peter Buchanan to ensure that the premises were safe and without risk to health. 39 Essentially, her Honour was correct in identifying the relevant test to be applied under s 17(1)(a). How her Honour applied the test may be found at [43] of her Honour's judgment: 43 The relevant consideration is whether, despite the fact that Peter Buchanan was for all intents and purposes directly in control of all activities relating to Claim 26313, Eureka had the ability to exercise control. That is, as contemplated in McMillan Britton and Kell Pty Limited , '.... the ability ... to compel corrective action to ensure safety ...'. The answer in my mind, given the facts and circumstances of this matter, must be no. It could not be suggested that the purpose of s 17(1)(a) is to impose absolute liability on a party who did not, for all practical purposes, have control of, or the ability to control, to any extent, the relevant premises. To that extent, any legal rights bestowed upon Eureka as the registered claim holder by s 5 of the Mining Act must be viewed in the light of its practical application to satisfy the test in s 17(1)(a). The evidence is that while there was a technical legal right of the registered claim holder, Eureka, to restrict access, that right, as far as Claim 26313 was concerned, was vested entirely in Peter Buchanan. In that sense, there was no practical ability on the part of the defendant in these proceedings to control by way of compulsion the mining activities undertaken on Claim 26313 to any relevant extent. 40 Whilst we consider her Honour received little assistance from counsel regarding the implications of the mining legislation for the matters she was required to determine, her Honour undoubtedly erred in finding that the respondent had no more than a "technical legal right" to restrict access to the Claim and, therefore, no practical ability to control mining activities. The respondent was the registered claim holder and, as we have explained, under the relevant statute and the orders made under the statute, the respondent had certain rights and obligations that were not transferable whilst it held the title to the claim. The right that her Honour described as a "technical legal right" was a substantive obligation on the respondent, grounded in legislation, to conduct the mining operations safely. 41 It will be recalled that a condition of the mineral claim, which applied each time Claim 26313 was renewed, was that: The claim holder must conduct operations in a manner that does not endanger the safety of any person or any stock ... 42 This condition made it apparent to the respondent that it had a responsibility for safety. Mr Wayne Buchanan signed the renewals indicating thereby his acceptance to being bound by the "provisions, conditions and stipulations" attaching to the claim. 43 It could not be said on the evidence that the respondent or any agent or employee of the respondent had been excluded from the Claim to the extent it was unable to carry out its responsibility for safety. Despite her Honour's finding at [32] that Wayne Buchanan, a director of the respondent, had not worked the claim it is apparent on the evidence that he had. Wayne Buchanan's record of interview of 13 April 2000 was tendered in the proceedings. At questions 61- 62 the following exchange is recorded: Q61 Yes I do. When you, have you ever been underground in 26313? A Yes. Q62 And the purpose of that visit was? A Well I actually worked at 26313 before. 44 Wayne Buchanan also gave the following evidence: Q Mr Buchanan, prior to your brother performing work on Claim 26313, you performed some work on that Claim yourself, didn't you? A Yes. 45 There was evidence that Wayne Buchanan visited the claim site when Peter Buchanan and Mr Kennedy were working on it in 2000. Staunton J noted in her decision at [48]: During those visits the evidence is that, when asked, he gave advice about work being undertaken on the claim to Peter Buchanan that he 'ought put a few more props in'. However, there is a distinction between the giving of advice when asked and being in a position to be able to 'compel, direct or command'. 46 The position of the respondent then, was that: (1) It was the registered titleholder of Claim 26313; (2) Under the conditions of the Claim, it had a responsibility for safety in respect of persons working in the mine and had acknowledged that responsibility; (3) The respondent was free to visit the mine and indeed had worked the mine; (4) The respondent had recognised a deficiency in the safe operation of the mine (the need for more props) and had offered advice to Peter Buchanan in that respect; (5) There was no evidence to the effect that the respondent was not in a position to direct any person working in the mine in respect of safety. 47 It was undoubtedly the case that the respondent had a legal obligation pursuant to the Mining Act, the Regulation and the conditions of the relevant claim to ensure operations were carried out in a manner that did not endanger the safety of any person. The legislation gave to the respondent control for that purpose. The respondent's obligations under the mining legislation are evidence of control for the purpose of s 17(1)(a) of the Occupational Health and Safety Act. 48 We also consider that the fact Peter Buchanan may have had control of the mine in a practical or day-to-day sense does not necessarily mean that the respondent was precluded from exercising any control. Section 17(1)(a) is directed to the situation of a person who makes premises available to other persons (not being the person's employees) as a place of work. If that person has, to any extent, control of the premises the person has a duty to ensure that the premises and the means of access thereto or egress therefrom, as the case may be, are or is safe and without risks to health. 49 Even if Wayne Buchanan and his father Kevin, as directors of Eureka, felt personally constrained in intervening in the working of the mine by Peter Buchanan because they considered that, in all practicality, the mine was Peter's Claim, that is not a basis upon which to conclude the respondent had no ability (or responsibility) to compel corrective action to secure safety. The respondent had a right or interest in the Claim that was akin to a proprietary right or interest. It was clearly open to the respondent and, indeed, it was legally obliged under the conditions of the Claim, to direct Peter Buchanan to take steps to ensure safety in the mine. If those directions were ignored, there were other steps available to the respondent, through the Department of Mineral Resources, to have Peter Buchanan removed from working in the mine. Once the respondent withdrew its permission for Peter Buchanan to work the mine Peter Buchanan was in breach of s 5 of the Mining Act and liable to criminal sanctions. The conditions of the mining claim also gave the respondent exclusive mining rights in the use of the land associated with the claim. It is no answer to that course of action to contend that for all practical purposes the Claim belonged to Peter when it was open to, and incumbent upon, the respondent to take the steps we have outlined in meeting its obligations to ensure safety at the mine. Whether failure to ensure health and safety 50 The fifth question posed above was whether the respondent failed to ensure Claim 26313 and the means of access thereto or egress therefrom were safe and without risk to health. The answer to this question depends upon our view of a number of alternative submissions put by the respondent on appeal regarding the particulars of the charge. 51 It was submitted that the appellant had not proved beyond reasonable doubt that the risk to safety alleged in the charge arose within the boundaries of Claim 26313, that is, within the non-domestic premises. This issue was canvassed before her Honour who found that: There was no evidence that they [Mr Peter Buchanan and Mr Kennedy] were operating outside the boundaries of that claim [Claim 26313] and unless it can be shown that that was the case, it seems to me that I am entitled to accept the Crown's contention that they were mining pursuant to that claim. 52 We do not consider that her Honour was entitled to accept the appellant's "contention". The appellant was bound at first instance to prove to the requisite criminal standard that the risk arose within the precincts of the claim. But in any event, it was clear from the evidence that the shaft used for access to the mine was within the boundaries of Claim 26313 as marked out on the ground. The charge alleged that the respondent did fail on 28 March 2000 to ensure the premises, and the means of access thereto or egress therefrom, were safe and without risk to health (our emphasis). In the first particular of the charge it was alleged the respondent: Failed to ensure that the shaft used for access remained uncluttered and able to be used in an emergency situation to retrieve injured persons 53 It was Mr Howell's evidence that the rescue party was not able to bring the stretcher bearing the injured Mr Kennedy through the access to the mine but rather it had to use the access shaft to another claim because the access hole in Claim 26313 was only about one metre in diameter and with a blower pipe of about 22.5 cm in diameter in the access hole it was impossible to fit a stretcher in the hole. 54 Counsel for the respondent contended at first instance that there was no causative link between the risk and the alleged failure regarding the shaft used for access. However, her Honour made no finding in relation to the particular and the respondent did not pursue the matter on appeal. It falls to the Full Bench to determine the issue. 55 The charge alleged a failure to ensure the means of access to the mine or egress therefrom, were safe and without risk to health. The evidence was that the seriously injured Mr Kennedy could not be removed from the mine through the shaft used to access the mine because the stretcher would not fit and an exit from another claim had to be found. In our opinion, the particular is made out beyond a reasonable doubt. The inability to exit the mine was causative of a risk to Mr Kennedy's health and safety. There was no issue in these proceedings that the opening of the mine lay squarely within the boundaries of the claim. 56 As to the alleged failure in the second particular to ensure that the ladders used to gain access to the mine were properly secured and not swinging, there was insufficient evidence that such ladders constituted a risk to safety. The particular is not made out. 57 The third particular pleaded was that the respondent failed to ensure that adequate and proper propping and/or bracing of the roof took place. Mr Latham conceded at first instance that "there was no propping where the accident occurred, there is no doubt about that, and we concede that the failure to prop would constitute a risk." However, counsel submitted that the prosecution had not proved that the site of the accident was within the "non-domestic premises", that is, Claim 26313. Staunton J, whilst appearing to favour the proposition that a presumption of regularity could be relied to the effect that "the accident occurred within what is called claim 26313", made no specific finding as to whether the particular had been made out or not. 58 There was no evidence upon which reliance could be placed that inadequate propping or bracing of the roof constituted a risk immediately entry was gained to the mine through the access shaft (which was within the boundaries of the Claim) and, therefore, that the particular had been made out. Further, there was no evidence that the inadequate propping in the area conceded by Mr Latham was within the boundaries of the Claim. The evidence of David Howell, Mine Safety Officer, at Lightning Ridge was as follows: Q. Mr Howell, you referred to the site not being measured, I think were the words you used? A. I didn't take measurements, no. Q. But you don't know, for example, how far the accident was from the shaft, do you? A. No, I couldn't tell you. Q. And for example, you wouldn't know whether it penetrated into another claim or not? A. No. 59 It is possible that the area of the inadequate propping was in an adjoining claim given that the rescue party exited Claim 26313 through another claim. Accordingly, there is insufficient evidence to make a finding beyond reasonable doubt that the respondent failed to ensure that adequate and proper propping and/or bracing of the roof took place at Claim 26313. The particular is not made out. 60 The fourth particular alleged that the respondent had failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine. The communication system was clearly inadequate and, indeed, there was no such system that we have been able to discern. Peter Buchanan had to exit the mine, find his brother, Wayne, who was working at an adjoining claim, who then had to find someone with an operational telephone (mobile phones were useless in the area) and it was an hour before rescue arrived. Delay was also encountered in contacting the Police Service, with the Lightning Ridge station not answering the calls made to it. 61 Mr Latham had submitted at first instance, there was no causative link between the risk to safety and the inadequate communication system. Staunton J made no finding in this respect. On appeal, the respondent did not rely on the absence of causation but rather on a defence under s 53 of the Act to the effect that the communication failures were due to causes against the happening of which it was impracticable for the respondent to make provision. 62 The relevant risk to health and safety was that in the absence of an adequate communications system there could be a significant delay in contacting medical and emergency services to assist in the evacuation and treatment of a person injured in the mine. In this case the inadequacy of the communications system increased the risk to health and safety. Causation is established and the fourth particular is made out. 63 To establish a defence under s 53, a defendant must prove, to the civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. What the respondent in this appeal contended was that it had no control over the unavailability of a mobile phone service and no control over the failure of the Lightning Ridge Police to answer the phone. Such a contention does nothing to discharge the onus on the respondent to show it was not reasonably practicable to ensure the safety of persons working Claim 26313 or that that the failure was due to causes over which the respondent had no control and against the happening of which it was impracticable to make provision. 64 It was reasonably foreseeable that a risk to health and safety might arise if the communications system at the mine was inadequate. However, there was no evidence brought by the respondent to show that it was not reasonably practicable because of the absence of technologies other than mobile phones, or cost, or time, or the trouble involved, to adopt measures to avert the risk to health and safety: See WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 at [83] to [86]. It is apparent that the respondent had not given any consideration to providing adequate communication at the mine in the event of an accident. We are satisfied beyond reasonable doubt that the respondent failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine. 65 The fifth particular pleaded was that the respondent failed to develop and put in place an emergency procedure. At first instance, counsel for the respondent conceded there was evidence of the facts alleged in the particular but submitted there was no evidence that the failure as particularised caused the risk to health and safety. Staunton J made no finding in relation to the alleged failure. 66 The pleadings do not explain what was meant by "emergency procedure". However, it is evident from the proceedings at first instance that it was understood by the respondent to refer to an emergency procedure for dealing with accidents in the mine that might result in injury to a person. Such a procedure would normally countenance such measures as the provision of first aid, avoiding further risk, evacuation procedures where possible and contacting medical and emergency services. 67 To some extent the fifth particular overlapped with the fourth particular involving a failure to provide an adequate communication system to contact emergency services. Nevertheless, it was Wayne Buchanan's evidence that there was no emergency procedure in place at the mine. This is supported by the fact that before having to go off in search of a telephone the only action Peter Buchanan took immediately following the roof fall was to ask Mr Kennedy if he was all right, wait for him to return to consciousness and pull him clear of the debris. 68 The risk to health and safety in the absence of an emergency procedure was that without such a procedure no forethought had been given and no systematic plan was in place to avoid further risk from roof collapse or to treat the injured person appropriately with first aid thereby running the risk of further injury and increasing the seriousness of injuries already sustained. The particular is made out. 69 The sixth particular was that the respondent allowed the roof collar to be over excavated so as to reduce its support. Staunton J indicated to the respondent in the course of proceedings that she did not wish to hear him on the issue. In any event, there was insufficient evidence to make out this particular beyond reasonable doubt. 70 We find beyond reasonable doubt that the respondent is guilty of an offence under s 17(1)(a) of the Act. Further, we find that the respondent has failed to make out a defence under s 53 of the Act in relation to the fourth particular of the charge. The defendant did not raise a s 53 defence in relation to any aspects of the charge where we have found a particular has been made out. Sentencing 71 It will now be necessary to hear the parties in respect of the fine to be imposed on the respondent. In the light of certain comments made by the parties during the hearing of the appeal it may be that they would prefer that aspect to be dealt with by way of written submissions etc, although we are prepared to hear any oral supplementation of their written material, should application by made therefor. Directions will be made to facilitate the hearing of the next phase of the proceedings. Orders and Directions 72 The Court makes the following orders and directions: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The judgment of Staunton J given on 16 March 2005 and the orders of her Honour made on 24 October 2005 in IRC Matter No 1593 of 2002 are set aside. (4) Eureka Opals Pty Limited is found guilty of an offence under s 17(1)(a) of the Occupational Health and Safety Act 1983 (5) Costs, including costs of proceedings at first instance, are reserved pending the determination of sentence. (6) Within 28 days of delivery of these reasons, in accordance with a timetable to be agreed between the parties, the parties shall file and serve their written submissions and any evidence they wish to rely on in respect of the penalty phase and the costs of the proceedings. (7) Any application for an oral hearing in respect of penalty and costs shall be made as soon as practical but no later than 21 days from today. 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