Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Select Civil (Kiama) Pty Ltd v Kearney [2012] NSWCA 320
• Hearing dates: 11 September 2012
• Decision date: 05 October 2012
• Before: Allsop P at [1]; Macfarlan JA at [2]; Tobias AJA at [25]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: WORKERS COMPENSATION - worker injured whilst undertaking site rehabilitation at a coal mine where operations had been discontinued - whether worker was a "coal miner" for the purpose of Pt 18 Clause 3(1) of Schedule 6 to the Workers Compensation Act 1987 - whether site of employment was a "mine" to which the Coal Mines Regulation Act 1982 applied - whether mine had been abandoned - whether rehabilitation of site occurred "in connection with mining" for the purpose of the definition of "mine" in s 5(1)
• Legislation Cited: Coal Mine Health and Safety Act 2002; Coal Mines Regulation Act 1982; Workers Compensation Act 1987; Workers Compensation Legislation Further Amendment Act 2001
• Cases Cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280; Cudgen R.Z. Ltd v Valuer-General (1974) 1 NSWLR 81 and (1974) 2 NSWLR 75; Re his Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161; Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638
• Texts Cited: The Macquarie Dictionary, 5th ed (2009)
• Category: Principal judgment
• Parties: Select Civil (Kiama) Pty Ltd (Appellant); Michael Kearney (Respondent)
• Representation: Counsel: I D Roberts SC/P J Menary (Appellant); H N Kelly SC/T F McKenzie (Respondent); Solicitors: DLA Piper Australia (Appellant); Taylor & Scott Lawyers (Respondent)
• File Number(s): CA 2009/338134

Decision under appeal

• Citation: Michael Kearney v Select Civil (Kiama) Pty Ltd
• Date of Decision: 2011-06-15 00:00:00
• Before: McLoughlin DCJ
• File Number(s): DC 2009/5108

Judgment

1 ALLSOP P: I agree with Macfarlan JA.

2 MACFARLAN JA: On 10 April 2006 Mr Michael Kearney, the respondent, was injured in the course of his employment by the appellant as a labourer at Kemira Colliery near Wollongong. The colliery operated as an underground coal mine between 1848 and 1991. Its two tunnels and four shafts were sealed in 1995. In June 2003 the Department of Primary Industries approved a Rehabilitation Master Plan for the site. Rehabilitation was necessary to enable Illawarra Coal Holdings Pty Ltd, the holder of a mining lease over the site, to relinquish the lease. That company engaged the appellant to carry out site rehabilitation and associated work including "[p]lacement and maintenance of erosion and sedimentation control measures". Mr Kearney was engaged on the maintenance aspect of this work at the time of his accident.

3 Mr Kearney commenced proceedings in the District Court against the appellant for damages for breach of its duty as employer. The only issue between the parties was whether Mr Kearney's entitlement was precluded or restricted by the amendments to the Workers Compensation Act 1987 made by the Workers Compensation Legislation Further Amendment Act 2001. Resolution of that issue turned upon whether Mr Kearney fell within the express exception to the operation of that 2001 Act for coal miners.

4 The primary judge, McLoughlin DCJ, held that he did. For reasons given below, I agree that that was the case and that the appellant's appeal should be dismissed.

LEGISLATIVE PROVISIONS

5 It is convenient to proceed initially upon the assumption, contrary to Mr Kearney's Notice of Contention, that legislative changes after the date of his accident did not operate retrospectively.

6 At the date of Mr Kearney's accident, Clause 3(1) of Part 18 of Schedule 6 to the Workers Compensation Act provided that the 2001 amendments to that Act did not apply "to or in respect of coal miners", "coal miners" being defined as "workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies". The Workers Compensation Act did not at that time otherwise define "mine" or any related term.

7 As at 10 April 2006 the Coal Mines Regulation Act 1982 (since repealed) contained the following relevant provisions:

"4 Act applies only to coal mines except where otherwise expressly enacted

Except in so far as is in this Act expressly enacted, this Act applies only to coal mines.

5 Definitions

(1) ...

mine, when used as a noun, includes (subject to subsections (3)-(16)) any place, land, building, structure, pit, shaft, drive, level, drift, excavation and work on or in which, or whereby, any operation for or in connection with mining is carried on and any pipe, conveyor or ropeway used for the conveyance of coal or stone, but does not include a coal preparation plant that is a declared plant under Part 5A.

mine, when used as a verb, means to disturb, remove, cart, carry, crush or otherwise deal with coal or stone for the purpose of obtaining coal but does not include:

(a) the act of exploring for coal by drilling from the surface, or

(b) the act of loading coal for dispatch from a mine, or

(c) any act involved in the operation of a coal preparation plant that is a declared plant under Part 5A.

...

(8) For the purposes of this Act, any building, structure, pit, shaft, drive, level, drift, excavation or work:

(a) which is in the course of construction and which is intended to be part of a mine,

(b) which is a part of a mine and which is in the course of being abandoned, or

(c) which is a part of a mine the operations at or in which are in the course of being discontinued,

shall be deemed to part of a mine.

(9) For the purposes of this Act, a mine shall be deemed to be worked notwithstanding that the only work being carried out at the mine is in connection with:

(a) sinking or raising a shaft or driving an outlet,

(b) abandoning or discontinuing operations at the mine,

(c) removing or replacing overburden, or

(d) rehabilitating land used as an open cut mine.

(10) For the purposes of this Act, a mine shall be deemed to be worked until such time as a notice that the mine has been abandoned or operations at the mine have been discontinued has been given under section 134.

...

36 Managers

(1) The owner of a mine shall not work the mine at any time when:

(a) there is no person appointed or nominated as the manager of the mine under this section, or

(b) except as provided by section 48, there is more than one person appointed or nominated as the manager of the mine.

...

134 Notice of commencement, discontinuance etc of operations

(1) The owner of a mine shall, in respect of the mine, give notice in writing to the district inspector of:

...

(b) the abandonment of an underground mine or a seam therein,

(c) the discontinuance of operations at an underground mine or in a seam therein"

THE JUDGMENT AT FIRST INSTANCE

8 For the following reasons, the primary judge concluded that at the date of Mr Kearney's accident, Kemira Colliery was a mine to which the Coal Mines Regulation Act applied:

"Whilst the operations as to coal mining itself may well have been discontinued, in my view, the abandoning of the coal mine does not take place until the area has been rehabilitated or until whatever other steps need to be taken to ensure that the surface area which has been damaged or destroyed or interfered with in any significant way is put back into a reasonable condition to enable the land to be returned to the original owner.

I can see no other reason for the insertion of the word for the removal or replacing of overburden or the use of the word abandoning of a mine except to create a question of fact to be decided in some instances as to whether or not that which is left in the rehabilitation process is still within the abandoning of the mine and/or the removing or replacing of overburden.

...

Such work is completed when the minister is in a position to say that the whole mining process from the initial shaft construction to effective rehabilitation is carried out and the mining lease surrendered. It is not yet abandoned where there is overburden being removed or replaced, as was occurring here, s 5(9) still means that the mine is deemed to be worked when that is the work being carried out" (pp 9 - 10).

RESOLUTION OF THE APPEAL

9 The primary judge concluded that as rehabilitation operations were continuing at the date of Mr Kearney's accident, the Kemira Colliery was not an abandoned mine. His Honour did not make clear precisely why he was considering the question of abandonment but it may have been to support a conclusion that the area where Mr Kearney was working was in the course of being, but was not yet, abandoned, with the result that s 5(8)(b) deemed it to be part of a mine.

10 If this is what his Honour had in mind, his reasoning was in my view correct as the Colliery, or at least the part that was being rehabilitated, could not be regarded as "abandoned" when work that had been rendered necessary by mining operations was being performed to rehabilitate the site to enable the mining lease to be relinquished.

11 The primary relevant meaning of the word "abandon" is "to leave completely and finally; forsake utterly; desert" (The Macquarie Dictionary, 5th ed, 2009). Abandonment of the Kemira Colliery had not occurred at the date of Mr Kearney's accident. There were people, including Mr Kearney, engaged in work, for the mining leaseholder, associated with the by-then-discontinued mining on the site. The site could not have been described as abandoned for this purpose if after cessation of mining operations, miners were packing up their gear to leave. Although the process was more attenuated, what was occurring at the time of Mr Kearney's accident was no different in principle: a necessary concomitant of the mining was incomplete.

12 The conclusion that the site upon which Mr Kearney worked at the time of his accident was a mine within the Coal Mines Regulation Act also follows, in my view, from the definition of "mine" as a noun in s 5(1) of that Act. That definition included as a mine "any ... work ... whereby ... any operation for or in connection with mining is carried on ... ". That definition did not require the occurrence of actual mining on the date under consideration. What it required was that the "work" (here the rehabilitation work) being carried on at that time be "in connection with mining". For reasons analogous to those given in respect of s 5(8)(b), the rehabilitation work occurred "in connection with mining": it was a necessary concomitant of the mining. As the parties to the proceedings accepted, mining at the site was only permitted upon the basis that an obligation to clean up and rehabilitate the site was undertaken.

13 The appellant resisted this conclusion by submitting that, as the mining leaseholder gave notice in 2003 of abandonment of the mine and discontinuance of its operations, s 5(10) deemed the site to be no longer a mine. However that subsection concerned the issue of whether a mine is being "worked". This concept was relevant, for example, to whether an obligation existed under s 36 of the Act to have a mine manager, but it was distinct from the more basic question of whether the site was a mine (irrespective of whether it was being "worked" at any particular time). In any event, I do not consider that there was anything in the terms of that subsection, or elsewhere, that suggested that it was intended to limit the breadth of earlier stated provisions, such as the two definitions of "mine" in s 5(1). Accordingly, contrary to the appellant's submission, the giving of a notice of abandonment did not in my view "provide a definite cut-off" to the operation of ss 5(8) and (9).

14 My views as to the abandonment of the mine and the rehabilitation work occurring "in connection with mining" are supported by the decisions at first instance and on appeal in Cudgen R.Z. Ltd v Valuer-General (1974) 1 NSWLR 81 and (1974) 2 NSWLR 75. In referring to restoration of the surface of land that had been used for mining after completion of the extraction of minerals, Else-Mitchell J, at first instance, said:

"Such restorative or rehabilitative measures are, it seems to me, an inseparable and essential incident of the conduct of mining activities entailing the extraction of minerals, not only because the terms of the lease so provide but as a matter of social and ecological control" (at 86).

15 Views to like effect were expressed by this Court in affirming Else-Mitchell J's decision on appeal. Their relevance to the present case is emphasised by the use in the relevant definition of the words "in connection with". These are words of wide import and "include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing": Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638 per McFarlane J at 639, quoted in Re his Honour Warden Calder SM; Ex parte Lee [2007] WASCA 161 at [37] (see also Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 288 - 9).

16 I do not however agree with the view of the primary judge that the site of the rehabilitation work was deemed to be a mine by s 5(9)(c) due to the removal or replacement of "overburden". As the primary judge pointed out, the Macquarie Dictionary relevantly defines "overburden" as "unwanted material overlying a mineral deposit". Section 5(9)(c) is inapplicable because there was no evidence that the material brought onto the site after the cessation of mining operations constituted a replacement of "unwanted material" that had previously overlain the mine site. In any event, as with subsection (10), subsection (9) concerned not whether a site was a "mine", but whether a mine was being "worked".

17 For the reasons I have given, the primary judge's conclusion was correct and the appeal should be dismissed.

NOTICE OF CONTENTION

18 As the appeal fails, the Notice of Contention does not need to be determined. However, my views in relation to the issue that it raises are as follows.

19 The Coal Mine Health and Safety Act 2002, which relevantly came into force on 22 December 2006, provided for the following amendments to the Workers Compensation Act:

"2.18 Workers Compensation Act 1987 No 70

[1] Section 3 Definitions

Insert in alphabetical order in section 3(1):

mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 8(3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.

[2] Sections 4 and 52A(9) and Part 18 of Schedule 6

Omit "to which the Coal Mines Regulation Act 1982 applies" wherever occurring".

20 The respondent argued in support of his Notice of Contention that the first of these amendments effected a substantive change, and thus did not operate retrospectively, while the second of the changes was procedural and therefore operated retrospectively, rendering it applicable at 10 April 2006, the date of Mr Kearney's accident. Thus he said that the effect of the changes (plainly designed to move the reference to the Coal Mines Regulation Act from one place in the Workers Compensation Act to another) was that for a period of time prior to 22 December 2006, encompassing 10 April 2006, the Workers Compensation Act did not contain any presently relevant reference to the Coal Mines Regulation Act.

21 The respondent proffered no reason why the legislature might have intended this apparent incongruity. In my view the proposition that the two amendments were designed to operate from different points in time should be rejected as inconsistent with the apparently complementary nature of the two amendments. As the appellant noted in reply, it is highly unlikely that two provisions, intended to complement one another and having their genesis in the same amending Act, would be intended to operate at two different times. Whether they both apply, or neither applies, in relation to Mr Kearney's accident is not in my view significant as in both cases consideration is required of whether the subject site was a mine within the meaning of the Coal Mines Regulation Act. In my view there is no relevant difference, at least in this context, between the language used in the first amending provision ("a mine within the meaning of the Coal Mines Regulation Act 1982") and that of the second (a mine "to which the Coal Mines Regulation Act 1982 applies").

22 In any event, if, as the respondent contends, recourse cannot be had to the Coal Mines Regulation Act 1982 for the purpose of determining whether Mr Kearney was a worker "employed in or about a mine" (see the definition of "coal miners" in Schedule 6 Part 18 Clause 3(4) of the Workers Compensation Act after the second of the 2002 Act amendments took effect on 22 December 2006) the same result still follows because the ordinary meaning of the words "employed in or about a mine" in my view includes employment in the rehabilitation of a mine site after extraction of minerals has ceased. For the reasons given above, that activity is an incident of the mining itself. A mine does not cease to be a mine immediately upon cessation of extraction of minerals. It continues to have that character at least whilst equipment is packed up and the site is rehabilitated. Only once that is complete and the site has been abandoned by those concerned with the mining or restorative operations does the site cease to be a mine.

23 For these reasons I reject the submissions made in relation to the Notice of Contention.

ORDERS

24 For the reasons that I have given, the appeal should be dismissed with costs.

25 TOBIAS AJA: In this matter I have had the benefit of reading in draft the judgment of Macfarlan JA. I agree with the orders proposed by his Honour and, subject to what follows, with his reasons including those relating to the respondent's Notice of Contention.

26 The only reservation I have with his Honour's reasons relates to [9] and [10] and the suggestion that the primary judge's reasons may, in part, have been founded on s 5(8)(b) of the Coal Mines Regulation Act 1982 ("the Act"). It is true that the primary judge made a finding to the effect that the mine had not been abandoned due to the necessity to rehabilitate the mine site but in my view he was relating that finding to a submission of the appellant founded on a notice given pursuant to s 134 of the Act.

27 Thus at page 9 of his reasons the primary judge said:

I accept the submission made by Mr Kelly . . . that the notice of discontinuance does not mean that the mine then became abandoned pursuant to the provisions of [the Act].

28 No submission was advanced by the respondent on appeal in reliance upon s 5(8)(b) although he referred to s 8, as well as ss 9 and 10, as "illuminating" the definition of "mine" (as a noun) in s 5(1). Rather, the respondent's support for the primary judge's decision was founded on so much of the definition of "mine" in s 5(1) as referred to "work . . . whereby, any operation for or in connection with mining is carried on . . .". It was then submitted (at paragraph 22 of the respondent's written submissions) that work carried out to rehabilitate the mine site was work "in connection with mining". As Macfarlan JA concludes at [12] of his reasons, this was clearly correct.

29 In any event s 5(8)(b) is not easy to construe. Relevantly it deems to be part of a mine "work . . . which is part of a mine and which is in the course of being abandoned". The provision would make more sense if the conjunctive "and" was deleted. Given the terms of the sub-section, it is difficult to appreciate what it is seeking to achieve as it states the obvious, namely, work which is part of a mine (albeit in the course of being abandoned) is deemed to be part of a mine.

30 As neither the primary judge nor the respondent sought to found their findings on the one hand and submissions on the other, upon s 5(8)(b), I would prefer to rest my agreement with Macfarlan JA, on the issue under discussion, on his Honour's observations at [12] of his reasons. This is not to say that I disagree either with his Honour or the primary judge that the rehabilitation of the mine site and its ongoing maintenance was not "work" or that the fact that that "work" was being carried out meant that the mine had not been abandoned. My only point is that in my opinion, the appeal can be decided on the definition of "mine" (as a noun) in s 5(1) without recourse to s 5(8)(b).

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Decision last updated: 05 October 2012