——– Forwarded Message ——–

Subject:	Citation Smyth v State of Qld & Ors [2005] QSC 175
Date:	Tue, 26 Sep 2023 17:38:21 +1000
From:	stuart vaccaneo <stuvac@bigpond.com>
To:	resources@ministerial.qld.gov.au, Mark Stone <Mark.Stone@rshq.qld.gov.au>, jacques.leroux@rshq.qld.gov.au, shaun.dobson@rshq.qld.gov.au, daniel collins <daniel.collins@rshq.qld.gov.au>, Qld Mines Inspectorate <QldMinesInspectorate@rshq.qld.gov.au>, dpc@premiers.qld.gov.au, leader@opposition.qld.gov.au, commissioner@police.qld.gov.au

 

Dear Resources Minister Scott Stewart, RSHQ CEO Mark Stone, CIOCM Jacques Leroux, Chief Operating Officer RSHQ, Robert Djukic, Daniel Collins,

RSHQ CEO Mark Stone can you pass this onto Mr Djukic as I do not have his direct email address

I hear that your are stating that my quite correct assertion about the Vitrinite Public Road fatalities being a Police matter is totally incorrect.

Next time you want to make such a bold assertion you should get some proper independent paid legal advice.

I am extremely well acquainted with the events here. At the time I was an ISHR living in Emerald. then ISHR Smyth who lived in Mackay arrived at the Newlands Coal Mine some two hours before my arrival.

Mr Smyth informed me that he had been involved in a quite heated argument with SSE Richardson, who asserted that that neither he nor I as ISHR duly appointed by the Mines Minister were allowed to investigate the accident site, take any photo’s or measurements.

Mr Smyth informed SSE Richardson that I was 10 minutes away and Lindsay you will have to tell ISHR Stuart Vaccaneo yourself.

SSE Richardson turned up approximately 10 minutes later with someone else I do not know the identity of after the passage of so much time.

SSE Richardson exited his Mine Compliant SSE 4 wheel drive car. Lights, long flag mounted to the bullbar etc

He said that he would have the police remove me if I did not leave voluntarily.

After a rather heated short exchange between myself and SSE Richardson I quite clearly remember stating words to the effect of

I am not leaving at all. You can go and get well and truly f….d. The poor man is still trapped in the cabin, still with a pulse so the police officer there told me not 2 minutes ago.

You a dog c..t. Have you no decency at all. No respect at all for this poor man and family. He has died at your mine carting your unwashed coal on a road that your company has widened graded and watered so it is legally wide enough to allow these road trains to legally have 2 way traffic, and you have the f…..g hide to argue it is a public road and I have not right to investigate.

You are nothing but a dog c..t. If not for the Police Offcer 10 metres away and the fact that you are 20 years older than me, I would knock you clean out even if it cost me my ISHR job.

F..k off before I do it anyway. Its only a job.”

SSE Richardson did so immediately.

The police officer just nodded his head and said thank you for chasing him away

You need someone who is in fact a practicing lawyer who has been admitted to the Queensland Bar.

Also, how hard is it to search your data base going back to 2001 when the CMSHA 1999 and the CMSHR 2001 came into full affect.

How hard is it to find a Supreme Court Case from 2005 where Steven Allan John Smyth Applicant V State of Qld.

In case it does in fact not exist I have copied the most relevant parts below

This is by far the greatest deliberate lie I have ever heard from RSHQ.

I am waiting for a copy of any official press release stating I am completely wrong and do not know what I am talking about.

I will be closely examining every thing you say in your press release about myself.

Be assured I will be seeking legal advice to start defamation against the State Govt and each Officer of RSHQ involved and each Minister.

Lastly I have enclosed a link and a complete word for word copy of the Supreme Court Decision.

I look forward to giving sworn evidence of the event of this day.

I suggest you get external legal advice for your own sake.

Yours in Complete Disgust

Stuart Vaccaneo

https://www.queenslandjudgments.com.au/caselaw/qsc/2005/175/pdf

Citation Smyth v State of Qld & Ors [2005] QSC 175

Parties

STEPHEN ALLAN JOHN SMYTH (applicant)

v

STATE OF QLD (first respondent)

and

NEWLANDS COAL PTY LTD (second respondent)

and

LINDSAY RICHARDSON

(third respondent)

• Wilson J: On 8 July 2004 Robert Leslie O’Neile was driving a triple road train hauling raw coal along Wollombi Road, Glenden when it veered off the road and the lead trailer came to rest on top of the prime mover. Mr O’Neile died in the accident.
• The raw coal was being transported between two mining leases operated by the second respondent Newlands Coal Pty Ltd – ML 4761 where it had been mined and ML 4771 where it was to be washed. The two mining leases were separated by a grazing property “Suttor Creek”. They were connected by Wollombi Road, which was a public road. The accident site was about 6 kilometres from ML 4761 and about 1 kilometre from ML 4771.
• The applicant is an “industry safety and health representative” within s 27 of the Coal Mining Safety and Health Act He is employed by the Construction, Forestry, Mining & Energy Union, Mining & Energy Division. He wants the Chief Inspector of Mines to investigate the fatality and to commence a prosecution in respect of it. The Chief Inspector considers that he lacks jurisdiction to investigate the accident because it occurred on a public road, although he has initiated an investigation into antecedent breaches of the Act alleged to have occurred on one of the mining leases.
• The applicant seeks the following declarations –
  • that the location of the accident that occurred on 8 July 2004 on Wollombi Road occurred at a coal mine within the meaning of the Coal Mining Safety and Health Act 1999;
  • that the functions and powers of the inspectors under the Coal Mining Safety and Health Act 1999 apply to the accident that occurred on 8 July 2004 on Wollombi Road.

How the questions arise

[5] One of the functions of inspectors under s 128 of the Act is –

“(h) to investigate serious accidents and high potential incidents and other matters at coal mines that affect the successful management of risk to persons;”

By s 16 –

“16 Meaning of serious accident

A serious accident at a coal mine is an accident at a coal mine that causes –

• the death of a person;
• a person to be admitted to a hospital as an in-patient for treatment for the injury.”

By s 199 –

“199 Place of accident must be inspected

As soon as practicable after receiving a report of a serious accident causing death at a coal mine, an inspector must inspect the place of the accident, investigate the accident to determine its nature and cause, and report the findings of the investigation to the chief inspector.”

Thus an inspector may investigate the accident only if it occurred at a coal mine.

• An inspector, an industry safety and health representative or a site senior executive may recommend to the Chief Inspector that there be a prosecution for an offence against the Act: s 256. Such a prosecution must be commenced by the Chief Inspector or someone else authorised by the Minister or the Attorney-General: s 255(5).
• The applicant has recommended to the Chief Inspector that a prosecution be commenced against the site senior executive (the third respondent Mr Lindsay Richardson) for failing to discharge safety and health obligations imposed by s 42 (d) and (e): see s 34. Those obligations are –

“42 Obligations of site senior executive for coal mine

A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations –

• to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine;
• to train coal mine workers so that they are competent to perform their duties;”

The maximum penalty for a contravention of a safety and health obligation varies: it is greatest if the contravention caused death or grievous bodily harm: s 34.

Meaning of “coal mine”

[8] The issue is whether the place where the fatality occurred was a coal mine within the meaning of the legislation. Sections 9 and 10 provide –

“9 Meaning of coal mine

(1) A coal mine is any of the following places —

• a place where on-site activities are carried on, continuously or from time to time, within the boundaries of land the

subject of a mining tenure;

• a place where on-site activities are carried on, continuously or from time to time, on land adjoining, adjacent to, or contiguous with, the boundaries of land the subject of a mining tenure and within which is a place mentioned in paragraph (a);
• a place where on-site activities are carried on, continuously or from time to time, unlawfully because land at the place is not the subject of a mining tenure;
• a place that was a coal mine while works are done to secure it after its abandonment;
• a place where tourism, education or research related to coal mining happens that is declared under a regulation to be a coal mine.

• A coal mine includes buildings for administration, accommodation and associated facilities within the boundaries of land the subject of the mining tenure for the mine or on land adjoining, adjacent to, or contiguous with the boundaries of the land the subject of the mining tenure.
• Despite subsection (1)(d), a place that was a coal mine is not a coal mine after its abandonment merely because work is being done

at the place by or for the State—

• to ensure public safety; or
• to rehabilitate it; or
• to secure it.

10 Meaning of on-site activities

• On-site activities are activities carried on principally for, or in connection with, exploring for or winning coal and include the following —

(a) constructing —

• things required or permitted to be constructed under an exploration permit, mineral development licence or

mining lease; or

• for a place mentioned in section 9(1)(c)—things that are required or permitted to be constructed under an exploration permit, mineral development licence or mining lease;
  • treating coal and disposing of waste substances;
  • rehabilitating of a place after coal mining operations;
  • maintaining and testing plant, equipment or machinery.
    • On-site activities do not include the following —
  • airborne geophysical surveys;
    • transporting product from a coal mine on public roads or public railways or on any other railway;
  • constructing and installing surface railways;
  • air transport to and from a coal mine;
  • pastoral activities;
  • an activity declared not to be an on-site activity under a regulation.”
• The place where the coal was extracted on ML 4761 and the place where it was to be washed on ML 4771 were clearly coal mines within s 9(1)(a). The question is whether the accident site was a coal mine within s 9(1)(b).
• Counsel for the applicant submitted that, notwithstanding that the accident occurred on part of a road that runs outside the boundaries of the mining leases, the accident occurred at a coal mine within the meaning of s 9(1)(b) of the Act because:
  • the accident occurred at a place where on-site activities were carried out, being activities carried on principally for, or in connection with, exploring for or winning coal, namely transporting raw coal from lease 4761 to lease 4771 for it to be washed; and
  • such activities were carried on continuously or from time to time; and
    • the accident site was a place on land adjoining, adjacent to, or contiguous with the boundaries of lands the subject of mining tenures (ML 4671 and ML 4771) and within which were places where on-site activities were carried on, namely, winning coal (ML 4761) and washing coal (ML 4771).
  • Transporting raw coal to a washing plant probably is an activity “carried on principally for, or in connection with, exploring for or winning coal”, but it is nevertheless not an on-site activity if it falls within the exclusion in s 10(2)(b) –

“transporting product from a coal mine on public roads…”.

Raw coal is clearly “product”, which is defined in schedule 3 as including –

“as mined material, waste material, treated and semi treated material”.

At the hearing argument focused on the meaning of “transporting product from a coal mine”, in particular whether the phrase “from a coal mine” is descriptive of the product (raw coal) or whether it has a geographical connotation being descriptive of the place from which the transportation begins.

• It is instructive to consider the nature of the legislation. It is expressed to apply to “coal mines and coal mining operations” (s 4) and to everyone who may affect the safety or health of persons at a coal mine, everyone who may affect the safety or health or persons as a result of coal mining operations and a person whose safety or health may be affected while at a coal mine or as a result of coal mining operations (s 5). Its objects are (s 6) –
  • to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and
  • to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level.

Coal mining activities are defined in schedule 3 as activities, including on-site activities, carried out at a coal mine associated with exploration, extracting, processing and treatment, and installation and maintenance of equipment used for those purposes in relation to coal.

• Senior counsel for the applicant submitted that in the context of legislation concerned with the health and safety of persons working at coal mines or who may be affected as a result of coal mining operations the exclusions in s 10(2) should be construed narrowly, or no more broadly than the words require them to be construed. That is correct in principle.
• It is also necessary to consider the particular exclusion in s 10(2)(b) in the context of the other exclusions in that subsection. Paragraphs (a), (c), (d) and (e) relate to activities within the investigative jurisdiction of various public authorities other than an inspector under the Act. For example, if an accident occurs in the course of an airborne geophysical survey or in the course of air transport to and from a mine, jurisdiction to investigate it lies with the aviation authorities. If an accident occurs on a public road, it is ordinarily for the police to investigate, just as it is ordinarily for the police and Queensland Rail to investigate an accident which occurs on a public railway.
• Senior counsel for the applicant submitted that the raw coal was being transported from one part of a coal mine to another part of the coal mine, rather than from a coal mine to a place that was not a coal mine. As senior counsel for the second and third respondents submitted, this involves the notion that two separate mining leases are two parts of one coal mine although geographically distinct. Paragraph (a) of s 9(1) links a coal mine to a mining tenure; in other words, for each mining tenure there is a coal mine. In the instant case there were two distinct coal mines. To treat the area between the two mining leases as itself a coal mine within s 9(1)(b) because it was a place where on-site activities were carried on and one which was adjoining, adjacent to or contiguous with each of the mining leases begs the question of what are on-site activities.
• If “from a coal mine” refers to the place from which the transportation begins, one wonders why no destination is specified in the exclusion. On the other hand, if it is descriptive of the product, it is providing a nexus with the coal mine which would be absent if the trailers were empty. In the absence of such a nexus, there would be no purpose in the exclusion, for the activity would clearly not be an on-site activity. What paragraph (b) does is to exclude an activity which might fit within the definition of an on-site activity but for the fact that it occurred on a public road (or a public railway).
• The preposition “from” is defined in the Macquarie Dictionary as –

“a particle specifying a starting point, and hence used to express removal or separation in space, time, order, etc., discrimination or distinction, source or origin, instrumentality, and cause or reason”.

To construe “from a coal mine” as descriptive of product is consistent with the use of “from” to describe its source or origin.

• The addition of the words “from a coal mine” is not unduly repetitious. The definition of product (an inclusive definition) refers to various materials. While raw coal is “as mined material” and so necessarily something having its origin in a coal mine, the other expressions used in the definition (“waste material”, “treated and semi treated material”) do not on their face refer necessarily to things having their origin in a coal mine, even if they have that quality in the contexts in which “product” is used in the legislation.
• The Explanatory Notes which accompanied the bill for this Act contain the following –

“Sub-clause 10(2) provides details of those activities that are not regarded as on-site activities. Those activities include airborne surveys and air transportation, use of public roads and railways, and pastoral activities.”

That is consistent with the exclusion being applicable to transportation of product derived from a coal mine on a public road, rather than with the transportation of product on a public road away from a coal mine.

• Further, the place where the accident occurred was not on land adjoining, adjacent to, or contiguous with boundaries of the land the subject of either of the mining leases.
• These definitions appear in the Macquarie Dictionary –

“adjoin 1. to be in connection or contact with; abut on…. 2. to lie or be next, or in contact”

“adjacent lying near, close, or contiguous; adjoining; neighbouring”

“contiguous 1. touching; in contact 2. in close proximity without actually touching; near.”

“Adjoin” is the narrowest of these expressions: it requires actual contact, while the others require mere proximity.

• The accident site was 1 kilometre from the boundary of the land the subject of one mining lease and 6 kilometres from the boundary of the land the subject of the other. It was not “adjacent to or contiguous with” either.
• For these reasons, I have concluded that the transportation of the raw coal along Wollombi Road from one mining lease to another was not an on-site activity. It follows that the accident site was not a coal mine within s 9(1)(b) of the Act.
• The declarations sought should not be granted.
• The application is dismissed. I will hear counsel on costs.

 

I wonder who is going to be the sacrificial offering for getting admitted to Wacol Prison Masonic Club.

The words exchanged are still very clear in my mind.

I will never forget that day; even if I get extreme Alzheimer’s

I will just say I have never been so wild in my entire life ever.

Not even remotely close

I think Lindsay saw that if he did not disappear that very second, I would do exactly as I had promised him

 

I have attached a copy of the Safety Alert issued in July 2004 after Mr, O’Neille.

As an old file from 19 years ago it looks untidy on latest version of Windows

It is no longer available at RSHQ safety alert website.

I assume the them Deputy Director General took it straight down after the court decision

 

Death Robert O’Neille Newlands Open Cut July 8 2004 RSHQ BSafety Alert

——– Forwarded Message ——–

Subject:	Read: Citation Smyth v State of Qld & Ors [2005] QSC 175
Date:	Tue, 26 Sep 2023 08:28:51 +0000
From:	Jacques Le Roux <Jacques.LeRoux@rshq.qld.gov.au>
To:	stuart vaccaneo <stuvac@bigpond.com>