Carborough Downs Fatality Prosecution by OHS Prosecutor. Another failure?
After the absolutely disgusting decision by the OHS Prosecutor to not charge any Anglo Management over the Grosvenor Explosion, are we about to hear another official announcement from the soon to depart OHS Prosecutor?
The jungle drums are beating a message that the charges against Carborough Downs Management over the Brad Duxbury fatality have been/will be dismissed or dropped and a public announcement is imminent.
This will be due to the matter being held in the wrong Court jurisdiction being a Magistrates Court rather than an Industrial Magistrates Court.
This is from the Mackay Mercury story of the 13th of December 2021.
https://www.couriermail.com.au/news/queensland/mackay/police-courts/carborough-downs-mine-hearing-into-death-of-brad-duxbury-delayed/news-story/0f610cb805e65f5c330bd6bd3473dd9c
Specialist workplace health and safety prosecutor Aaron Guilfoyle initially brought the action against two of Carborough Downs Mine’s senior executives Russel Clive Uhr and Jeremy David Futeran, and the mine operator for the death of Brad Duxbury.
They are charged with failing to discharge health and safety obligations.
Mr Duxbury, a 57-year-old underground electrician, was crushed to death from falling coal while fixing machinery at Carborough Downs mine, about 20km east of Moranbah, on November 25, 2019.
The hearing for the matters began on December 9 in Mackay Magistrates Court where Mr Uhr’s barrister Christopher Murdoch and Mr Futeran’s barrister Peter Roney brought an application to dismiss the matter on the argument the complaint was invalid.
Mr Murdoch began his submissions alleging Mr Guilfoyle’s staffer had lodged the original complaint in Mackay Magistrates Court rather than the Industrial Magistrates Court.
The pair argued this meant the complaint was invalid because it was not brought into a court with the jurisdiction to hear the matter resulting in a contest of legislative interpretation between them and Work Health and Safety’s barrister Glen Rice.
Acting Magistrate Athol Kennedy adjourned the matter for lawyers to make further written submissions. The case was listed for January 17.
Apparently the Courts have come to a decision
The most obvious question is how the issue of having to only appear in an Industrial Magistrates Court arose in the first place?
Surely after getting belted in the face by this mistake in 2007, making sure to only appear in an Industrial Magistrates Court would the first MUST DO.
How does the Occupational Health and Safety Prosecutor get this so wrong first up? AGAIN!
Carborough Downs Barristers must have been laughing and laughing when this repeated mistake by the OHS Prosecutor fell in their lap.
The 2007 Decision while not the easiest one to read can be summarized as
1. They argued that the original complaint was made to a Justice of Peace, not an Industrial Magistrate.
2. The Judge decided that the summons was less misleading than Chew Ying in 1913. It was accepted.
3. But they were arguing about moving the hearing from Moranbah to Brisbane to save costs.
4. There was a step up Magistrate who seems not to have appreciated that he was supposed to be an Industrial Magistrate.
5. There was an appeal about moving the court to Brisbane.
It was thrown out. Because they had been in the wrong court.
BHP voluntarily paid the maximum fine $300,000 plus the prosecution costs of $236,000.
Then everyone went home happily ever after.
BMA pay $300,000 plus costs to settle prosecution
BMA Coal Operations will pay $300,000 toward coal mine safety research in Queensland, following an out of court settlement in the Industrial Magistrates Court in Brisbane on 30 January 2008. The company also agreed to pay $236,000 to the Department of Mines and Energy for investigation and court costs
BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND Brian Lyne (C/2007/31) BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND James Gordon and Brian Lyne (C/2007/43)
Under the settlement terms the department will use the $300,000 solely for safety and health research, and for safety and health projects that will benefit the Queensland coal mining industry. The department has total discretion in identifying the appropriate research projects.
The site senior executive of Goonyella Riverside mine, Mr Ben Zietsman, will meet with the department’s Safety and Health Division to explain improvements made in operating procedures at the mine and any additional improvements which were identified in the Mines Inspectorate’s safety investigation report.
These improvements are essential to prevent any recurrence of such an incident at any mine. The payment is significant and signals the Queensland Government’s strong commitment to use the full force of the Coal Mining Safety and Health Act to improve safety for all workers in our mining industry.
The full terms of the settlement are:
Brian Lyne v BM Alliance Coal Operations Pty Ltd (“BMA”) and Barend Zietsman
Terms of Settlement: 30 January 2008
- The parties to these prosecutions have agreed that the prosecutions will be discontinued on the terms set out below in clauses 2 – 7 and the parties submit to orders dismissing the complaints.
- The terms of this settlement are not confidential.
- BMA will pay to the Crown in Right of the State of Queensland represented by the Department of Mines and Energy (“the Department”) the sum of $300,000 within 30 days of the discontinuance of these prosecutions, such sum to be applied by the Chief Executive of the Department on behalf of the State of Queensland, in his absolute discretion for the purpose of carrying out safety and health research and safety and health projects with respect to the Queensland Coal Mining Industry.
- BMA will pay the sum of $236,000 to the Crown in Right of the State of Queensland represented by the Department within 30 days of the discontinuance of these prosecutions towards the expenses of investigating and prosecuting the prosecutions.
- The Site Senior Executive of the Goonyella Riverside Mine, Mr Barend Zietsman will meet with the Executive Director of the Department’s Safety and Health unit, Mr Stewart Bell, and the Chief Inspector of Coal Mines, Mr Gavin Taylor, at the offices of the Department in Brisbane on a date to be agreed to explain improvements made or to be made in operating procedures at the mine to manage the recurrence of the factors underlying the incident the subject of the prosecutions, as identified in the Department’s safety investigation report.
- The defendants will withdraw all requests and reviews under the Freedom of Information Act 1992 in relation to all matters the subject of the prosecutions.
- The terms set out in clauses 3 – 5 will be read into the record of the Court hearing these prosecutions by Counsel for the complainant.
Issued by:
Gavin Taylor
Chief Inspector of Coal Mines
https://archive.sclqld.org.au/qjudgment/2007/ICQ07-039.pdf?fbclid=IwAR3I5P7uwUzDMWQzvHC65wKorhyRRQsNw4a7SBAX98UN_ml_-oweMMo8nvY
