Industrial Relations Commission New South Wales Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 Hearing dates: 5 July 2013 Decision date: 09 July 2013 Before: Boland J, President Decision: (1) Leave is granted to amend the Amended Applications for Order in IRC proceedings 315 of 2011 and IRC proceedings 316 of 2011 in the terms of the proposed Further Amended Applications for Order annexed to the prosecutor's notice of motion filed on 2 July 2013 and marked "A". (2) Costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Interlocutory application - Notice of motion seeking to further amend Applications for Order - Whether delay in making application to amend justified refusing the amendments - Whether defendants prejudiced - Whether granting amendments futile because of material indicating prosecutor not validly appointed - Orders made granting leave to amend in terms sought. Legislation Cited: Coal Mine Health and Safety Act 2002 Occupational Health and Safety Act 2000 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Borodin v R [2006] NSWCCA 83 G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93 Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 132 R v Cook (NSWCCA, unreported, 9 May 1990) Category: Interlocutory applications Parties: New South Wales Department of Industry and Investment (Applicant on the Notice of Motion) Glennies Creek Coal Management Pty Ltd (First Respondent on the Notice of Motion) Integra Coal Operations Pty Ltd (Second Respondent on the Notice of Motion) Representation: Mr J Agius, Senior Counsel with Mr C Magee of Counsel for the Applicant on the Notice of Motion Mr A Moses, Senior Counsel for the Respondents on the Notice of Motion I V Knight, Crown Solicitors (For the Applicant on the Notice of Motion) Ashurst Australia (For the First Respondent on the Notice of Motion) Blake Dawson Lawyers (For the Second Respondent on the Notice of Motion) File Number(s): IRC 315 and 316 of 2011 INTERLOCUTORY Judgment 1In these matters, Robert William Regan filed Applications for Order on 31 March 2011 charging the defendants, Glennies Creek Coal Management Pty Ltd (315 of 2011) ("Glennies Creek Coal") and Integra Coal Operations Pty Ltd (316 of 2011) ("Integra"), with contraventions of the Occupational Health and Safety Act 2000 ("the Act"). On 7 March 2012, by consent, the Applications for Order were amended to substitute Jennifer Ann Nash for the former prosecutor, Mr Regan. 2The charges arose out of an incident that occurred on 4 April 2009 when an employee of Glennies Creek Coal, Daniel Hill, who was working at the Integra Coal Underground Mine at Glennies Creek near Singleton, was killed in the course of repairing machinery. He was struck in the head and face by a coupling that broke free from a shear shaft. Glennies Creek Coal was charged with contravening s 8(1) of the Act and Integra with contravening s 8(2). 3An Inquest into the death of Mr Hill was held and that Inquest concluded on 5 November 2012. 4On 4 December 2012, the defendants entered pleas of not guilty. On 18 December 2012, the prosecutions against the defendants were listed for hearing commencing for three weeks on 15 July 2013 with a further week commencing 19 August 2013. 5On 2 July 2013, the prosecutor, Ms Nash, filed a notice of motion seeking to amend the Amended Applications for Order in these matters. The motion sought to amend that part of the charges dealing with what it was alleged the defendants should have done to avoid the risk to the workers. The proposed amendment was to paragraph 6 of the Amended Applications and it is set out below (the part deleted is struck through; the part substituted is underlined): ... What the defendant should have done 6. The defendant should have provided the workers with a system of work for replacing the broken shear shaft in the coal shearer at Longwall Panel 9 which included them able to align the new shear shaft for insertion whilst the coal shearer was unconnected to and isolated from any power source. 6. The prosecutor alleges that the defendant ought to have taken all or any of the following measures: All references to "the shear shaft" are references to the shear shaft in the coal shearer at Longwall Panel 9 on 3- 4 April 2009. (a) The defendant should have included in its system of work for the replacement of a shear shaft a procedure whereby those workers who had the task of replacing the shear shaft were required, immediately prior to commencing that task, to read and initial a safe work method statement for that task, which included acknowledgements that: i. the shearer was to be isolated from power before the procedure to replace a shear shaft commenced and during that procedure; and ii. that it was prohibited to have any power connected to the shearer at any stage of the work to replace the shear shaft; (b) The defendant should have included in its system of work for the replacement of a shear shaft a procedure whereby any person who had charge of the power supply to the coal shearer would, upon request by a member of a work crew with the task of replacing a shear shaft isolate the shearer from power, and not reconnect that power supply unless and until he/she was informed that the shear shaft had been replaced and the new shear shaft was secured in position; (c) The defendant should have had in place an audit system to check that workers were not replacing shear shafts whilst power was connected to the coal shearer during any part of the process of replacement. Such an audit system should have involved a combination of random on-site inspection of the replacement process audited against the safe work method statement to ensure that workers are following the work method statement e.g. that workers were not causing power to be restored to tram the shearer or to spin the shearer motor during the process of shear shaft replacement, and a regular paper audit, to check that workers were acknowledging the safe work method procedure for replacing shear shafts as set out in 6 (a) above; (d) The defendant should have provided the workers with a system of work for replacing the broken shear shaft which included a system for aligning the new shear shaft manually by insertion whilst the coal shearer was unconnected to and isolated from any power source; 7. The defendant should then have informed, instructed and trained sufficient personnel in that system of work (referred to in [6(d)] above), to enable it to be carried out safely during the night shift from 3 April 2009 to 4 April 2009. ... 6It was submitted the effect of the amendment is to further particularise the measures that should have been taken to avoid the risk. These were (i) isolation of the shear shaft from any power source before undertaking the task of replacing the shear shaft and the steps involved in doing so; and (ii) that the system of work for replacing the broken shear shaft should have included a system for aligning the new shear shaft manually. 7The defendants opposed the further amendments. Evidence 8In support of the motion, the prosecutor relied on an affidavit of Marina Rizzo, a solicitor employed in the Crown Solicitor's Office who has day-to-day carriage of the proceedings for the prosecutor. Ms Rizzo was required for cross-examination. In addition, Mr J Agius, senior counsel for the prosecutor relied on the affidavits in support of the original Applications for Order, the transcript of the last day of the proceeding in the Inquest and an expert's report of Dr Timothy White into aspects of what occurred on 4 April 2009. 9For the defendants, Mr A Moses of senior counsel relied on a bundle of documents that included the following: 1. Application for Order filed 31 March 2011 - Robert William Regan v Integra Coal Operations Pty Ltd. 2. Affidavit of Robert William Regan in support of Application for Order, sworn on 29 March 2011 and filed 31 March 2011. 3. Application for Order filed 31 March 2011 - Robert William Regan v Glennies Creek Coal Management Pty Ltd. 4. Affidavit of Robert William Regan in support of Application for Order, sworn on 29 March 2011 and filed 31 March 2011. 5. Coal Mine Health and Safety Act 2002 (NSW) (CMHS Act) (as made). 6. Extract of Statute Law (Miscellaneous Provisions) Act 2003 (NSW) (as made) amending s 145 of the CMHS Act. 7. Proclamation of the Governor for Schedule 2.9 of the CMHS Act to commence on 13 June 2003 (NSW Gazette, 97 NSWG 5623, 13 June 2003). 8. Proclamation of the Governor for the uncommenced provisions of the CMHS Act (except Division 4 of Part 6, Schedule 2.7, 2.8, 2.10[1] and 2.15 and clause 15 of Schedule 3) to commence on 23 December 2006 (NSW Gazette, 189 NSWG 11542, 22 December 2006). 9. Delegations of powers under ss 212(1) and 214(2) of the CMHS Act by the Minister for Mineral Resources (Ian MacDonald) to the Director General - NSW Department of Primary Industries, including powers to appoint "government officials" under section 145, dated 22 December 2006 (NSW Gazette, 8 NSWG 150-1, 12 January 2007). 10. Delegation of powers under s 214(2) of the CMHS Act by the Acting Director-General - NSW Department of Primary Industries (Alan Coutts) to the Deputy-Director General - NSW Department of Primary Industries, including powers to appoint "government officials" under section 145, dated 28 December 2006 (NSW Gazette, 8 NSWG 154-5, 12 January 2007). 11. Appointment notice under s 145 of the CMHS Act by the Deputy Director General - NSW Department of Primary Industries (Alan Coutts) of the Chief Inspector, Robert William Regan, and Investigator, Mark William Freeman (amongst others), dated 22 December 2006 (NSW Gazette, 5 NSWG 102, 12 January 2007). 12. Petroleum (Onshore) Amendment Bill 2013 (NSW) (see schedule 2). 13. NSW Parliament bills monitor page for the Petroleum (Onshore) Amendment Bill 2013 NSW. Consideration 10There was no issue about the Court's power to amend Applications for Order and it is unnecessary for me to delve into that question. It is, with respect, dealt with in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93. See also Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 132. 11The prosecutor's submission was essentially that it would not be reasonable to conclude there had been a delay of unreasonable magnitude in seeking the amendments and there would be no prejudice to the defendants or any injustice caused if the application to amend were to be granted. 12It was submitted for the prosecutor that the proposed amendments simply unpack what was originally cl 6 of the Amended Applications and serve the purpose of providing further and better particulars. 13The defendants' opposition to the further amendments was based on the following grounds: (a) delay by the prosecutor in seeking the further amendment. Reliance was placed on Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (b) prejudice to the defendants; and (c) the amendments would be futile because the original prosecutor, Mr Regan, was not authorised to bring the prosecutions. Delay 14In December 2012, the Amended Applications for Order were listed for hearing in July 2013. Mr Agius was briefed on 1 March 2013 to appear for the prosecutor. On 7 March 2013, Dr White was retained by the prosecution to provide a report. The prosecutor obtained Dr White's report dated 26 April 2013. That report was served on the defendants on 16 May 2013, which was about the time that Mr Agius saw the report. On 24 May 2013, Mr Agius provided advice to the prosecution regarding further amendments to the charges. On or about 4 June 2013, Ms Rizzo caused a letter to be forwarded to the solicitors for the defendants foreshadowing the prosecutor's intention to make application to further amend the Amended Applications for Order. The proposed Further Amended Applications for Order were forwarded to the defendants' solicitors on 7 June 2013. 15The greater part of the delay complained of by the defendants was the time taken to decide to brief senior counsel, which in turn, it would appear, delayed the request to Dr White to provide an expert report. That report could have been and should have been provided well before two months out from the trial date. The defendants were entitled to complain about the delay. Why it took nearly three months to brief senior counsel, a step routinely taken in matters such as these, was not explained. Once senior counsel had been briefed matters moved along at a reasonable pace, although I note it took about three weeks to provide the defendants with Dr White's report. 16It was contended that the amendments were prompted by Dr White's report. Dr White's report appears to be consistent with the further amendments, but it seems to me the view was also taken that the original paragraph 6 lacked the necessary degree of specificity, which made it vulnerable to attack by the defendants and once this was recognised by senior counsel the further amendment was sought having regard to consistency with Dr White's report. 17Where the prosecution has seven months' notice of hearing dates and seeks to amend charges two weeks prior to the hearing, in circumstances where a significant part of the delay in doing so is not satisfactorily explained, it is unacceptable from a case management perspective and the prosecution deserves to be censured. Although Aon was concerned with civil proceedings and the Court Procedure Rules 2006 (ACT), and is distinguishable on the facts, there may be circumstances, in criminal proceedings, where the Court should have regard, amongst other relevant considerations, to such matters as the nature and importance of the amendment, the stage the litigation has reached when the amendment was sought and the explanation for any delay in applying for the amendment. 18However, the delay, of itself, is not sufficient reason to refuse the amendments. Borodin v R [2006] NSWCCA 83 is an example of a very late amendment to a charge (day 13 of the trial). However, the Court of Criminal Appeal held that leave to amend "will only be refused where the accused would be irreparably prejudiced in meeting the charge as amended...". In R v Cook (NSWCCA, unreported, 9 May 1990) the amendment to the indictment was made at the end of the Crown case. However, it was held there was no injustice because, as it was noted in Borodin, the factual basis for the charge in Cook did not change and the wording of the charge more appropriately reflected the evidence in the Crown case. The leads me to the question of prejudice. Prejudice 19The defendants received notice on 4 June 2013 of the prosecutor's intention to seek leave to amend the charges. That is, approximately six weeks prior to the commencement of the trial. The defendants contended that prejudice would arise in at least two ways: (a) the proposed amendments change the nature of the charges: see G.P.I. at [36] per Hodgson JA; (b) the defendants had been preparing their case on the basis of the Amended Applications and at a late stage that preparation, including preparation for 21 prosecution witnesses, would have to be reviewed if leave was granted to amend. 20I am unable to accept the proposition that the amendments sought change the nature of the charges. In substance, the amendments amount to no more than greater particularisation. The original paragraph 6 asserted that the defendant should have provided a system of work whereby the coal shearer was unconnected to and isolated from any power source. The amended paragraph 6(a), (b) merely elaborates on what that system of work should involve, namely: (i) reading and signing a work method statement that the shearer was to be isolated from power before the procedure to replace a shear shaft commenced and during that procedure and that it was prohibited to have any power connected to the shearer at any stage of the work to replace the shear shaft; and (ii) any person who had charge of the power supply to the coal shearer would, upon request by a member of a work crew with the task of replacing a shear shaft isolate the shearer from power, and not reconnect that power supply unless and until he/she was informed that the shear shaft had been replaced and the new shear shaft was secured in position. 21Paragraph 6(c) asserts the defendants should have had in place an audit system to check that workers were not replacing shear shafts whilst power was connected to the coal shearer during any part of the process of replacement, and elaborated on the nature of such a system. The proposed amendment regarding the audit system, I understand, is put as a safeguard in the system of work against the power being restored whilst the machine is undergoing repairs. I do not see paragraph 6(c) as being of such a wholly different character to what was contemplated in the original paragraph 6 that it changes the nature of the charge. 22Paragraph 6(d) seeks to clarify the original paragraph 6 by making it clear that the system for aligning the new shear shaft should be a manual system and not one dependent upon electric power, thus removing any ambiguity. 23As to the preparation of the defendants' cases and the impact on that of the late amendments, my view is that no prejudice arises, but if it does the trial judge could address it. I am presently unable to see why the defendants could not deal with the amendments in any cross-examination or, if they choose, through their own evidence. The reason for this is that I do not regard the amendments as adding an unfair burden on the defendants in preparing and presenting their cases in defence. Essentially, all that the amendments do is provide greater particularisation and remove ambiguity. In my opinion, the amendments are within the scope of the original paragraph 6. Futility 24The defendants contended that the original prosecutor, Mr Regan, did not have authority to prosecute the defendants and, therefore, it would be futile to grant leave to further amend the charges. Because of the view I have reached about this contention it is only necessary for me to outline the defendants' submissions. 25Mr Regan deposed in the affidavit in support of the original Applications for Order that he was a government official (Chief Inspector) appointed under s 145(1)(a) of the Coal Mine Health and Safety Act 2002 and thereby, by s 47B of the Act, was taken to have been appointed as an inspector under the Act and authorised by s 106(c)(i) of the Act to institute the proceedings. 26Senior counsel for the defendants referred to the Petroleum (Onshore) Amendment Bill 2013, currently before the Parliament and, in particular, Schedule 2, which purportedly seeks to validate certain appointments, including the appointment of Chief Inspector Regan by amending the Coal Mine Health and Safety Act by inserting a new s 25A. The bill passed through the Legislative Assembly on 28 May 2013, but is only at the second reading stage in the Legislative Council. The Legislative Council next sits on 20 August 2013. The proposed amendment is in the following terms: 25A Validation of appointment of officers (1) A person purporting to have been appointed as the Chief Inspector, an inspector, a mine safety officer or an investigator by the 2006 instrument of appointment is taken to have been validly appointed as such an officer on and from the commencement of section 145. (2) Any act purported to be done or omitted to have been done by the person as such an officer on or after that commencement is taken to have been validly done or omitted to be done, if it could have been validly done or omitted to be done had subclause (1) been in force. (3) Nothing in this clause continues the appointment of a person who, before the commencement of this clause, ceased to hold an office to which the person was appointed as referred to in subclause (1). (4) In this clause: 2006 instrument of appointment means the instrument of appointment under the Coal Mine Health and Safety Act 2002, dated 22 December 2006, published in Gazette No 5 of 12 January 2007 at page 102. 27As I understood the defendants' submissions, the bill raises the question of the validity of Chief Inspector Regan's appointment. Reference was made to the appointment of Chief Inspector Regan, according to the Government Gazette (of 12 January 2007), being on 22 December 2006 by Alan Coutts, Deputy Director-General, NSW Department of Primary Industries - Mineral Resources in circumstances where, according to the defendants, the relevant provisions of the Coal Mine Health and Safety Act enabling the responsible Minister to delegate his authority to make appointments did not commence until 23 December 2006 (one day after the appointment of Chief Inspector Regan). Further, that the delegated power to appoint Mr Regan as a government official (Chief Inspector) was not granted until 28 December 2006. 28On the face of the material relied upon by the defendants, a difficulty would appear to exist with Mr Regan's appointment. However, Ms Rizzo was not aware of the bill in the Parliament until 4 July 2013. Consequently, senior counsel for the prosecutor did not come properly armed to deal with the defendant's futility argument and, in any event, on the brief instructions he had been provided with, believed Mr Regan had been validly appointed. If I am to determine this issue, which goes to the heart of the Court's power in these matters, I need to hear fully from both sides. In the circumstances, if the defendants wish to pursue the question of Mr Regan's appointment the appropriate course is to file a notice of motion. Orders 29The Court makes the following orders (1) Leave is granted to amend the Amended Applications for Order in IRC proceedings 315 of 2011 and IRC proceedings 316 of 2011 in the terms of the proposed Further Amended Applications for Order annexed to the prosecutor's notice of motion filed on 2 July 2013 and marked "A". (2) Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2013