Romanski v Stone (No 2)[2025] ICQ 19

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   Marek Roman Romanski held certificates of competency under the Coal Mining Safety and Health Act 1999 (CMSHA) as an Underground Mine Manager and as a Site Senior Executive.  Mark Douglas Stone is the Chief Executive Officer, Resources, Safety and Health Queensland.
2. [2]
   Mr Romanski seeks prerogative relief against Industrial Magistrate Joseph Pinder who, he submits, is acting beyond jurisdiction when hearing his appeal against Mr Stone’s decision to cancel his certificates of competency.

Statutory scheme

3. [3]
   Section 6 of the CMSHA defines the objects of the legislation.  It provides:

“6 Objects of Act

The objects of this Act are -

1. to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and

2. to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and

…”

4. [4]
   Section 7 provides how the objects are to be achieved, relevantly:

“7 How objects are to be achieved

The objects of the Act to be achieved by-

1. imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and

2. providing for safety and health management systems at coal mines to manage risk effectively; and

…

7. providing a way for the competencies of persons at coal mines to be assessed and recognised; and…” (emphasis added)

5. [5]
   “Risk” is defined by s 18:

“18 Meaning of risk

1. Risk means the risk of injury or illness to a person arising out of a hazard.

2. Risk is measured in terms of consequences and likelihood.”

6. [6]
   The concept of an “acceptable level of risk” is explained by s 29:

“29 What is an acceptable level of risk

1. For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is—

1. within acceptable limits; and

2. as low as reasonably achievable.

2. To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to—

1. the likelihood of injury or illness to a person arising out of the risk; and

2. the severity of the injury or illness.”

7. [7]
   Sections 30 and 31 concern achieving an acceptable level of risk and the consequences of the level of risk being unacceptable:

“30 How is an acceptable level of risk achieved

1. To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine.

2. This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to—

3. Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation.

31 What happens if the level of risk is unacceptable

1. If there is an unacceptable level of risk to persons at a coal mine, this Act requires that—

2. Action to reduce the risk to an acceptable level may include stopping the use of specified plant or substances.

3. The action may be taken by the coal mine operator for the mine, the site senior executive for the mine, industry safety and health representatives, site safety and health representatives, coal mine workers, inspectors or inspection officers.”

8. [8]
   Part 3 provides that safety and health obligations fall upon various persons.  Section 33 provides:

“33 Obligations for safety and health

1. Coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under division 2 (safety and health obligations).

2. The following persons have obligations under division 3 (also safety and health obligations)—

1. a holder;

2. a coal mine operator;

3. a site senior executive;

4. a contractor;

5. a designer, manufacturer, importer or supplier of plant for use at a coal mine;

6. an erector or installer of plant at a coal mine;

7. a manufacturer, importer or supplier of substances for use at a coal mine;

8. a person who supplies a service at a coal mine.

3. If a corporation has an obligation under this Act, an officer of the corporation has obligations under division 3A (also safety and health obligations).”

9. [9]
   The safety and health obligations of site senior executives are defined by s 42:

“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—

1. to ensure the risk to persons from coal mining operations is at an acceptable level;

2. to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work is at an acceptable level;” (emphasis added)

10. [10]
    The health and safety obligations of managers are not specifically defined but fall within s 39, which, relevantly, provides:

“39 Obligations of persons generally

1. A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—

2. A coal mine worker or other person at a coal mine has the following additional obligations—

11. [11]
    As can be seen from s 7(g),^[1] competencies for persons at coal mines are the subject of assessment.  That assessment is done by a Board of Examiners, pursuant to Division 3 of Part 10 of the CMSHA.  Mine managers hold certificates of competency and site senior executives hold “notices” issued by the Board.  There is a system of mutual recognition of certificates of competency and notices issued by other jurisdictions.
12. [12]
    Part 10A provides for the suspension and cancellation of certificates of competency and site senior executive notices.  Sections 197A, 197B, 197C and 197D are, relevantly here, as follows:

“197A Grounds for suspension or cancellation

1. Each of the following is a ground for suspending or cancelling a person’s certificate of competency under this part—

2. Each of the following is a ground for suspending or cancelling a person’s site senior executive notice under this part—

197B  Notice of proposed action

1. This section applies if the CEO considers there is a ground to suspend or cancel a person’s certificate of competency or site senior executive notice (the proposed action).

2. Before taking the proposed action, the CEO must give the person a notice (a proposed action notice) stating each of the following matters—

197C Submission against taking of proposed action

The person may, within the period stated in the proposed action notice under section 197B(2)(e), make a written submission to the CEO to show why the proposed action should not be taken.

197D Decision to take proposed action

1. This section applies if—

2. The CEO may decide—

13. [13]
    Part 14 of the CMSHA concerns appeals. Different decisions attract different avenues of appeal.  Division 1 of Part 14 identifies decisions of the CEO (Mr Stone), the Minister and the Board of Examiners which may be appealed to the Industrial Magistrates Court,^[2] whose decision can then be appealed to the District Court.^[3]  Division 2 of Part 14 identifies decisions of the Chief Inspector which may be appealed to the Industrial Court.^[4]
14. [14]
    Section 236A, which is within Division 1 of Part 14, identifies decisions made under s 197D by the CEO to suspend or cancel a certificate of competency or a site senior executive notice.  An appeal from such a decision lies to the Industrial Magistrates Court and then from the Industrial Magistrates Court to the District Court, by force of s 242 of the CMSHA.
15. [15]
    The nature of an appeal to the Industrial Magistrates Court is defined by s 240 of the CMSHA and the powers of the Industrial Magistrates Court on such an appeal are defined by s 241:

“240 Hearing procedures

1. Unless this division otherwise provides, the practice and procedure for the appeal are to be in accordance with the rules of court or, if the rules make no provision or insufficient provision, in accordance with the directions of the court.

2. An appeal must be by way of rehearing, unaffected by the original decision-maker’s decision.

3. However, for deciding an appeal against a decision of the CEO under section 267I to impose a civil penalty on a corporation, information that was not available to the CEO in making the decision must not be taken into account.

4. In deciding an appeal, an Industrial Magistrates Court—

5. In this section—

original decision-maker means the Minister, CEO or the board of examiners.

241  Powers of court on appeal

1. In deciding an appeal, an Industrial Magistrates Court may—

2. In substituting another decision, the court has the same powers as the original decision-maker.

Example—

In an appeal against the Minister’s decision to cancel an accreditation, the court may decide to cancel the accreditation or to amend the accreditation by imposing conditions.

3. If the court substitutes another decision, the substituted decision is taken to be the decision of the original decision-maker.

4. The court may make an order for costs it considers appropriate.” (emphasis added)

16. [16]
    Differently to s 242 of the CMSHA,^[5] s 556 of the Industrial Relations Act 2016 (IR Act) provides an avenue of appeal from a decision of an Industrial Magistrate to the Industrial Court, not to the District Court.^[6] 

17. [17]
    Further jurisdiction is granted to this Court by s 424 of the IR Act, which provides, relevantly:

“424 Jurisdiction and Powers

1. The Court^[7] may –

1. perform all functions and exercise all powers given to the court under this Act or another Act; and

…

5. if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process-

…

2. the commission and magistrates do not exceed their jurisdictions.”

18. [18]
    Therefore, independently of any avenue of appeal, this Court, when constituted by the President, has the power of prerogative review of decisions made in the Industrial Magistrates Court.

Background

19. [19]
    In 2018, Mr Romanski was the Underground Mine Manager at North Goonyella Coal Mine.
20. [20]
    On 28 August 2018, there was an incident at the coal mine and an investigation was undertaken.
21. [21]
    On 28 June 2021, Mr Stone sent Mr Romanski a letter.  That letter was styled “Notice of Proposed Action”.  Section 197B(2) of the CMSHA^[8] describes such a notice as a “proposed action notice”.
22. [22]
    In the proposed action notice, Mr Stone records various facts and then says:  “As contemplated by s 197B(1) of the Act,^[9] I consider there are grounds to cancel your certificates of competency, because I have formed the preliminary view that you have contravened the following safety and health obligations”.  What follows are particulars of four alleged breaches of safety and health obligations.  Each of those are “grounds” for the purposes of s 197A.They are set out below.  The ground which is directly relevant to the current application is ground 4; the one underlined: 

“Failing to conduct an appropriate risk assessment for the sealing of 9 North Longwall, in contravention of s 39(1)(a) of the Act;^[10]

Not applying the sealing management plan acknowledged by Regional Inspector Leslie Marlborough, in contravention of s 39(1)(a) of the Act and s 327(2) of the Coal Mining Safety and Health Regulation 2017 (“the Regulation”);^[11]

Changing the proposed method of sealing for the Mine, described in the 9 North Longwall sealing management plan acknowledged by regional Inspector Leslie Marlborough, in contravention of s 39(1)(a) of the Act and s 328(2) of the Regulation;^[12]

Not withdrawing workers to the surface on 28 August 2018 upon the detection of ethylene and conducting an IMT, being a reasonable and necessary course of action, in contravention of s 39(1)(c) of the Act.”^[13] (emphasis added)

23. [23]
    After identifying the four grounds, the proposed action notice outlines the facts and circumstances upon which Mr Stone’s preliminary view was formed.  They are as follows.  The facts and circumstances which seem relevant to ground 4 are underlined:

“The facts and circumstances upon which I have formed my preliminary view are as follows:

1 At all relevant times, you were the underground mine manager at North Goonyella Coal Mine (attachment B).

2 Your obligations – under NGC-HST-MMS-002 Responsibilities and Competencies, as the underground mine manager at North Goonyella Coal Mine - included ‘control and manage the underground workings with a particular emphasis on the identification of hazards associated with the operations and the control of the risks, to an acceptable standard, and as low as is reasonably achievable’ (attachment C).

3 North Goonyella Coal Mine has a history of spontaneous combustion events (attachment D).

4 Spontaneous combustion is a known hazard at North Goonyella Coal Mine. It is managed by way of NGC-S&H-PHMP-004 Spontaneous Combustion, a Principal Hazard Management Plan, which was created after a risk assessment was conducted. Known risks, such as spontaneous combustion, are recorded in the Underground Risk Register. (attachment E).

5 The process for conducting risk assessments at North Goonyella Coal Mine is contained within NG-SAH-PRO-GN-004 Risk Management (attachment F).

6 On 23 May 2018, a risk assessment was conducted into the proposed method of sealing 9 North Longwall at North Goonyella Coal Mine (attachment G). You were a participant in that process.

7 The proposed method of sealing included a specified sequence of Trigger Action Response Plans (‘TARPs’) to be applied to determine alarm levels and trigger actions for all gas monitoring data during the process of sealing the 9 North Longwall,

8 The risk assessment did not consider the principal hazard of spontaneous combustion, specifically:

1. TARP-019 would not be able to be reliably triggered after the construction of the first seal at the tailgate;
2. TARP-036 placed an emphasis on explosibility until a level 4 TARP was reached;
3. The need for a longwall move TARP that was tailored for the circumstances of the move, given that the longwall had been stationary for a period of time.

(attachment H)

9 On 29 May 2018, you approved the sealing management plan, notwithstanding its failure to consider the principal hazard of spontaneous combustion at North Goonyella Coal Mine.

10 On 19 June 2018, you provided Regional Inspector Marlborough with a ‘Notice of intention to seal a part of a coal mine’, namely, 9 North Longwall, accompanied by a plan entitled ‘9N LW Sealing Management Plan’, in compliance with s 326 of the Regulation (attachment I).

11 On 20 June 2018, you provided to Industrial Safety and Health Representative Stephen Woods, a copy of a document titled 9N LW Sealing Management Plan (‘SMP #1’) (attachment J).

12 Between 19 June 2018 and 12 July 2018, Regional Inspector Marlborough received two further drafts of the sealing management plan. He acknowledged the third draft of the sealing management plan (‘SMP #2’) and uploaded it to the Inspectorate's internal database. (attachment K).

13 On 12 July 2018, Regional Inspector Marlborough issued an ‘Acknowledgement of the Notice of Sealing of the Part of the Mine Known as 9 North Longwall’, pursuant to s 327(l)(b) of the Regulation (attachment L).

14 During the course of the subsequent investigation, conducted by Inspector Paul Brown, he obtained a copy of the sealing management plan that applied at North Goonyella Coal Mine (‘SMP #3’) (attachment M).

15 SMP #1 and SMP #3 were identical in content. SMP #2 was different in content from SMP #1 and #3 in certain respects.

16 SMP #1, SMP #2 and SMP #3 all were identical in respect to the sealing sequence and TARP sequencing.

17 All versions of the SMP divided the sealing sequence of 9 North Longwall into five stages; Preparation; installation of hatched seal S1; construction of seal S2; construction of seals S3, S4 and S5; and final sealing (closing of the hatch on seal S1).

18 All versions of the SMP provided for a specified sequence of Trigger Action Response Plans (‘TARPs’) to be applied to determine alarm levels and trigger actions for all gas monitoring data during the process of sealing the 9 North Longwall.

19 All versions of the SMP required the TARPs to be applied in the following sequence:

1. Pre-sealing: TARP-019 and TARP-025 (attachment N);
2. Final sealing process: TARP-036 (attachment 0); and
3. After sealing: TARP-007 (attachment P).

20 All versions of the SMP specified the point of transition from TARP-019 and TARP-025 to TARP-036, at stage 5 of sealing, as follows:

“Once the MG9N 2ct seal is constructed the relevant TARP will change from ‘TARP 019 9N LW Production & TARP 025 General Body Gas Levels’ to ‘TARP-036 - 9 North Transition to Final Sealing”.

21 Further, TARP-036 itself provided:

“This TARP takes effect from when the final sealing process is enacted in accordance with the 9North Sealing Management Plan ...”

22 At 7:39pm on 21 August 2018, you sent an email with the subject ‘LW9 Sealup TARPS Numbers’ to an email group, ‘DL-AU_NGC_Control’, comprising Control Room Operators (‘CROs’) (attachment Q). Your email directed CROs to commence applying TARP-036 in these terms: ‘We have connected tubes now to goaf stream therefore transition TARP can be used from now on’. The email attached a diagram depicting TARP-036 as the ‘Transition’ TARP.

23 You did not give notice to an inspector, or an Industry or Site Safety and Health Representative, of any changes to the proposed method of sealing described in the SMP (attachment R).

24 The effect of applying TARP-036 instead of TARP-019 was that there needed to be significantly higher indicators of spontaneous combustion present before an evacuation was triggered under TARP-036.

25 North Goonyella Coal Mine obtained reports from experts that indicated that if ethylene was present in the goaf stream sample, it meant that coal in the goaf had reached in excess of 100C, consistent with thermal runaway, and regaining control of the situation would be unlikely. (attachment S).”

26 On 28 August 2018 ethylene was detected in the goaf stream and carbon monoxide make was increasing.  Ethylene continued to be detected during the next four days, and carbon monoxide was consistently in excess of the TARP-019 evacuation trigger for carbon monoxide make (attachment T).

27 You were told about the presence of ethylene and carbon monoxide (attachment U).

28 Workers should have been withdrawn to the surface on 28 August 2018, due to the rising carbon monoxide make and presence of ethylene, and an Incident Management Team (IMT) should have been called to manage the spontaneous combustion.

29 Workers remained underground until the afternoon of 1 September 2018 (attachment V).

30 An IMT was not called until 2:07pm on 3 September 2018. (Attachment W).” (emphasis added)

24. [24]
    The proposed action notice was before me, but not the attachments. The attachments were also not before the Industrial Magistrate.
25. [25]
    The proposed action notice then records a number of preliminary findings.  They are as follows.  The findings relevant to ground 4 are underlined.  They are preliminary findings 10, 12, 13 and 14:^[14]

“Preliminary Finding 1:  The risk assessment for the method of sealing for 9 North Longwall should have considered the principal hazard of spontaneous combustion.

Preliminary Finding 2:    Your failure to consider the principal hazard of spontaneous combustion, in the risk assessment for the proposed method of sealing for 9 North Longwall, was a contravention of s 39(1)(a) of the Coal Mining Safety and Health Act.

Preliminary Finding 3:  The sealing management plan that was in place at North Goonyella Coal Mine for the period 21 August 2018 to 1 September 2018, was not the sealing management plan that was acknowledged by Regional Inspector Marlborough on 12 July 2018.

Preliminary Finding 4:  Your failure to apply the sealing management plan acknowledged by Regional Inspector Marlborough, was a contravention of s 39(1)(a) of the Act, because you were required, under s 327(2) of the Regulation, to apply that sealing management plan.

Preliminary Finding 5:  the correct TARPs to be applied, at all relevant times, were TARP-019 and TARP-025, because the MG 9N 2ct seal had not been constructed and 9 North Longwall was still at the pre-sealing stage.

Preliminary Finding 6:  Your direction to CROs did not comply with the SMP because:

1. The connection of tubes to the goaf stream was not a relevant threshold point at which TARP-036 was to be engaged under the SMP;
2. The specified transition point to TARP-036, namely, the construction of the MG 9N2ct seal had not been reached; and
3. When you sent the email, the sealing process had not progressed beyond stage 1 (as described in the SMP).

Preliminary Finding 7:  Your directing CROs to apply TARP-036 on 21 August 2018, as opposed to TARP-019 and TARP-025, was a change in the method of sealing of 9 North Longwall at the Mine.

Preliminary Finding 8: As a result of the matters comprising Preliminary Finding 8, you were required to take reasonable steps to notify an Inspector and an Industry or Site Safety and Health Representative prior to directing CROs to apply TARP-036 at 9 North Longwall.

Preliminary Finding 9:  Your failure to notify an Inspector or a Site or Industry Safety and Health Representative prior to directing CROs to apply TARP-036 at 9 North Longwall, was a contravention of s 328(2) of the Regulation, because you failed to take reasonable steps to notify an inspector and an industry, or site, safety and health representative, of the changes in the way proposed in the SMP for the sealing of the 9 North Longwall.

Preliminary Finding 10:  On 28 August 2018, there were indicators of spontaneous combustion, consistent with the need to withdraw workers from the mine.

Preliminary Finding 12:  You were aware of these spontaneous combustion indicators on 28 August 2018 and their significance in relation to North Goonyella Coal Mine.

Preliminary Finding 13:  You should have withdrawn workers from the mine on 28 August 2018 on detection of ethylene, because it was a reasonable and necessary action given the presence of spontaneous combustion indicators, and not authorised their return underground.  You also should have convened an IMT on 28 August 2018, to manage the evolving hazard of spontaneous combustion.

Preliminary Finding 14:  By failing to permanently withdraw workers from the mine until 1 September 2018 and not holding an IMT until 3 September 2018, you contravened s 39(1)(c) of the Act.”^[15] (emphasis added)

26. [26]
    As invited by the proposed action notice, Mr Romanski made submissions pursuant to s 197C and then, on 11 October 2021, Mr Stone provided notice of his decision to cancel Mr Romanski’s certificates of competency.  The notice of decision records that all four breaches (grounds) identified in the proposed action notice were found to be proved. 
27. [27]
    An appeal was filed by Mr Romanski to the Industrial Magistrates Court challenging the cancellation of his certificates of competency.  In due course, Mr Stone filed a statement of contentions in the appeal to the Industrial Magistrates Court.  In paragraph [15](d) of the statement of contentions, Mr Stone expressed the fourth alleged contravention (ground 4) as follows:

“(d) failing to take reasonable and necessary actions on 28 August 2018 to ensure no person was exposed to an unacceptable level of risk from continuing to work underground in unsafe conditions, in contravention of s 39(1)(c) of the Act (Contravention R4).”

28. [28]
    The statement of contentions defines the notion of “explosibility” and makes some allegations about that concept.

“EXPLOSIBILITY

40. The term “explosibility” refers to the capability of a gas mixture to explode.
41. Methane is the most common flammable gas in an underground coal mine and, for that reason, is also carefully monitored during underground coal mining operations.
42. Pursuant to s 273(1) of the Act and s 366 of the Regulation, if any part of an underground mine which is required to be ventilated reaches a general body concentration of methane of 2.5% or higher, that part of the mine is deemed by statute to be dangerous, and all persons exposed to the danger must be withdrawn to a place of safety.
43. The process of spontaneous combustion itself can also generate other flammable gases.  The two most common of these are carbon monoxide and hydrogen, both of which are capable of giving rise to an explosible mixture.  Carbon monoxide is also itself poisonous to humans in sufficient concentrations.” (emphasis added)

29. [29]
    The notice of contentions deals specifically with ground 4 in this way:

“C.4. Contravention R4:  Failing to withdraw workers to the surface on 28 August 2018

 BACKGROUND

84. Pursuant to s 39(1)(c) of the Act, Mr Romanski had an obligation to take any reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable risk as a result of operations at the Mine.
85. An “acceptable level” of risk is defined in s 29 of the Act as a level of risk from operations which is “within acceptable limits” and ‘as low as reasonably achievable’.  In considering whether risk is at an acceptable level, regard must be had to the likelihood of injury or illness to a person arising out of the risk, and the severity of the injury or illness.
86. In the days preceding 28 August 2018, a number of factors obtained at 9 North Longwall:

1. since around at least 21 August 2018, there were ongoing concerns that methane concentrations were regularly approaching the threshold of 2.5% which would have necessitated a mandatory withdrawal of persons to the surface pursuant to s 273 of the Act and s 366 of the Regulation;

2. from between around 31 July 2018 and the early morning of 28 August 2018, there were no carbon monoxide make readings for the 9 North Longwall tail gate, rendering it impossible for TARP-019 to be properly applied because this was one of the key gas indicators of spontaneous combustion under that TARP;

3. that said, both of the two remaining carbon monoxide indicators for which data was available during that period indicated the existence of a potentially developing spontaneous combustion incident — in particular with:

1. both reaching their respective Level 2 trigger levels under TARP-019 at 1.45pm on 20 August 2018; and

2. both reaching their respective Level 4 withdrawal trigger levels under TARP-019 at 1.45pm on 27 August 2018; and

4. between 22 August 2018 and 28 August 2018, there were multiple delays in removing equipment from the longwall as a result of roof instability, resulting in a total of approximately 3 days in delays and lost time; and

5. as noted above, the sealing of a longwall inherently involves a higher risk of spontaneous combustion than during normal operations, as compacted coal in the goaf is exposed to oxygen for longer periods of time and more likely to be fractured.

87. During the period from around early August 2018 to at least 29 August 2018, Mr Romanski’s actions in relation to the management of spontaneous combustion and explosibility at 9 North Longwall were primarily directed towards attempting to prevent methane concentrations reaching threshold of 2.5%. Little to no focus was placed on spontaneous combustion.
88. At around 4.25am on 28 August 2018:

1. data for tail gate carbon monoxide make became available for the first time since around 31 July 2018;

2. the TARP-019 Level 4 withdrawal trigger was immediately reached (now that all three carbon monoxide indicators required to trigger a withdrawal were live) — although the withdrawal trigger under TARP-036 was not;

3. ethylene was detected in the goaf stream for the first time since 6 June 2018, at a concentration of 0.6ppm; and

4. the goaf stream methane concentration was at 2.6%.

89. However, coal mine workers were not withdrawn to the surface at this time.
90. At around 12.35pm on 28 August 2018, Mr Romanski received an email from Mr Impson which stated words to the effect, amongst other things, that:

1. carbon monoxide concentrations in the 9 North Longwall tail gate had exceeded the Level 4 withdrawal trigger under TARP-019; and

2. there was confusion about which TARP ought to be applied.

91. Coal mine workers were not withdrawn to the surface until around 7.17pm on 28 August 2018, when the methane concentration at 9 North Longwall exceeded the threshold of 2.5%, prompting a withdrawal under TARP-036.
92. Mr Romanskl was underground at the time the withdrawal was ordered, and was not involved in the decision to withdraw.
93. Upon Mr Roinanski's return to the surface, he was informed that a Job Safety Analysis and IMT had been completed by other employees at the Mine to determine whether workers could safely re-enter the Mine and resume work.
94. None of the Individuals who participated in these risk assessments held a First Class Mine Manager's Certificate of Competency. The risk assessments undertaken during both the Job Safety Analysis and IMT were concerned with explosibility, rather than the risk of spontaneous combustion.
95. Mr Romanski did not cause any additional risk assessments to be undertaken to determine whether it was safe for workers to return below ground before authorising them to do so.
96. Coal mine workers were permitted to re-enter the mine at 9.45pm on 28 August 2018.
97. After workers were permitted to re-enter below ground at 9.45pm, gas monitoring readings showed that ethylene and other spontaneous combustion indicators continued to persist and, in some cases, rise.
98. At 9.15am on 31 August 2018, the Level 4 withdrawal trigger under TARP-019 was again reached.
99. Between the evening of 28 August 2018 and 27 September 2018, coal mine workers were withdrawn to the surface on three further occasions:

1. at 1.20pm on 31 August 2018, returning at 7.56pm the same day;

2. at 3.25pm on 1 September 2018, returning at 1.30pm on 5 September 2018; and

3. permanently, at 1.30pm on 14 September 2018.

CONTRAVENTION OF SAFETY AND HEALTH OBLIGATION

100. In all the circumstances, it was a reasonable and necessary course of action for Mr Romanski to have:

1. if his view at the time was that the 21 August 2018 Email was not intended to constitute a direction to CROs to cease applying TARP-019 and TARP-026, taken steps to ensure that no confusion was caused by the email, or to address any such confusion caused by the email, with the result that:

1. CROs would have been uniformly applying TARP-019 on 28 August 2018; and

2. coal mine workers would have been withdrawn to the surface shortly after the TARP-019 Level 4 withdrawal trigger was reached at around 4.25am on 28 August 2018,

being what would have occurred had the Acknowledged SMP been applied at the relevant time;

2. if no withdrawal had already been ordered pursuant to TARP-019, himself ordered a withdrawal of coal mine workers to the surface:

1. when he arrived onsite between 5am and 6am on 28 August 2018;

2. after receiving the email from Mr Impson at 12.35pm on 28 August 2018; or

3. at any other time before 7.17pm on 28 August 2018; and

3. further, not permitted workers to return underground until he was satisfied that there was an acceptable level of risk, having regard not only to tire risks associated with explosibility and methane, but also the risk of spontaneous combustion as indicated by high carbon monoxide and ethylene levels,

101. Each of the actions set out in paragraph 100 above was itself reasonable and necessary to ensure that no person was exposed to an unacceptable level of risk, given:

1. the background circumstances set out in paragraphs 86 to 99 above;

2. the matters set out in paragraphs 44 to 48 above and paragraph 102 below;

3. the need to take a conservative approach to the management of spontaneous combustion given (the inherent limitations of gas indicators and the difficulty of precisely anticipating how a spontaneous combustion event is likely to develop; and

4. the fact that withdrawals to the surface cannot happen quickly, and typically take hours to complete.

102. As a result of Mr Romanski's failure to take one or more of the above actions, coal mine workers were exposed to an unacceptable level of risk as a result of operations at the Mine in that:

1. workers continued to remain underground for almost 15 hours after the Level 4 withdrawal trigger under TARP-019 was reached at 4.25am on 28 August 2018;

2. during tills time, the risk to workers was heightened by the facts that:

1. the fact that the Mine did not have access to complete carbon monoxide monitoring data in the weeks leading up to 28 August 2018 meant that it did not have access to all the information it would ordinarily be expected to have when assessing the risk to workers from remaining underground;

2. there were signs that the spontaneous combustion event in the goaf was quite progressed, given:

1. (A)
   the sudden presence of ethylene indicated that coal had begun to reach relatively high temperatures, even if it had not reached the thermal runaway point of 100°C; and

1. (B)
   as at 4.25am on 28 August 2018, those TARP-019 spontaneous combustion indicators which were live between 20 and 27 August 2018 had been at, or near, withdrawal levels for a number of days;

3. simultaneously, methane concentration had exceeded the mandatory withdrawal threshold of 2.5%; and

4. spontaneous combustion is a potential ignition source for explosible gases, including methane;

3. once withdrawn at 7.17pm, coal mine workers were permitted to return underground shortly afterwards without a risk assessment being undertaken which adequately took into account the issue of spontaneous  combustion (as opposed to explosibility); and

4. at all times, the potential severity of any injury or illness which might arise was very high, having regard to the matters set out in paragraphs 44 to 48 above.

103. In the premises of the matters set out in paragraphs 100 to 102 above, Mr Romanski contravened his safety and health obligation under s 39(1)(c) of the Act by failing to take one or more of the actions set out in paragraph 100 above, that being a reasonable and necessary course of action to ensure no person was exposed to an unacceptable level of risk.”

30. [30]
    Mr Romanski brought application in the Industrial Magistrates Court to strike out paragraphs [15](d), [86](b)(c), [88](a)(b), [89], [90], [93], [94], [95], [97], [100], [101], [102], and [103] of the statement of contentions.  That application failed.^[16] 
31. [31]
    Mr Romanski appealed that decision to this Court. 
32. [32]
    Mr Stone applied to strike out the appeal to this Court for want of jurisdiction.  The basis of that application was that any appeal from the Industrial Magistrate’s order was to the District Court, not this Court.^[17]  That application came before Deputy President Hartigan who dismissed the strike out application.^[18]  As explained in some detail later, Deputy President Hartigan did not find that there was an avenue of appeal to this Court from a decision of an Industrial Magistrate reviewing a decision made under s 197D of the CMSHA.  She dismissed the strike out application on the basis that Mr Romanski also relied on the prerogative powers of this Court to give this Court jurisdiction to review the Industrial Magistrate’s decision.  Therefore, this Court has jurisdiction to entertain Mr Romanski’s complaints about the Industrial Magistrate’s ruling, albeit in the Court’s original (not appellate) jurisdiction.  However, the prerogative jurisdiction can only be exercised when the Court is constituted by the President.
33. [33]
    After Deputy President Hartigan’s decision on the appeal was published, a formal application for prerogative relief was filed. That is the application before me.

The Industrial Magistrate’s decision

34. [34]
    The learned Industrial Magistrate gave detailed reasons for dismissing the strike out application.  His Honour referred to various provisions of the CMSHA, including s 240, and his Honour followed a decision of Martin J, then President of this Court, in Dalliston v Taylor & Anor.^[19]
35. [35]
    In Dalliston, the President considered the nature of an appeal to an Industrial Magistrate from a decision made under s 167 of the CMSHA. That appeal was made pursuant to s 246, which is in similar terms to s 240(2)^[20]  His Honour was faced with an apparent contradiction.  Conventionally, an appeal “by way of rehearing” defines a different extent of appellate review than the term “unaffected by the original decision-maker’s decision”, which suggests a hearing de novo.^[21] Both terms are used in ss 240 and 246 to describe the nature of the appeal. His Honour concluded:

“The exercise I must embark on requires that I stand in the shoes of the Chief Executive and exercise the power afresh.”^[22]

36. [36]
    The Industrial Magistrate in the present case followed Dalliston and concluded:

“Upon consideration of s 240 – Hearing Procedures, and the far broader powers that it confers upon the court and consistent with the approach of Martin J in Dalliston (supra) the court is not restricted to consideration, upon the hearing and determination of this appeal, strictly to the expressly articulated grounds of the respondent (as original decision maker) in the show cause notice and decision.”

37. [37]
    The Industrial Magistrate has, with the greatest respect, not come to grips with the real point of the strike out application.  The function of the Industrial Magistrate on appeal was, as he found, to reconsider Mr Stone’s decision de novo.  To do that he would have to stand in the shoes of Mr Stone and decide the question which was posed to Mr Stone.  That was the question defined by the procedure that had been undertaken pursuant to Part 10A of the CMSHA.  The questions before the Industrial Magistrate were, firstly, as to the scope of the issues which that procedure identified in Mr Romanski’s case and then, secondly, whether the Industrial Magistrates Court, upon an appeal, had jurisdiction to undertake an enquiry beyond those boundaries.
38. [38]
    By determining, rightly, that the appeal was a hearing de novo, but not deciding what he had to rehear afresh, the Industrial Magistrate has erred for reasons explained later.
39. [39]
    An appeal was lodged against the Industrial Magistrate’s decision, alleging these grounds:

“1. The Industrial Magistrate has erroneously asserted the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent.

2. The Industrial Magistrate has misconstrued the Coal Mining Health and Safety Act 1999 to erroneously assert the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent.”

40. [40]
    For reasons which are explained later, the jurisdiction is limited to consideration of the grounds and supporting facts articulated in the proposed action notice and any response. The presence of additional grounds in Mr Stone’s decision would show the decision to be beyond jurisdiction.
41. [41]
    As already observed, an application was then filed by Mr Stone seeking to strike out the appeal for want of jurisdiction.  That application raised three questions:

    1. does an appeal from a decision made under s 197D lie to this Court or to the District Court pursuant to the CMSHA? [question 1];
    2. is an interlocutory decision, such as a refusal by the Industrial Magistrate to strike out parts of the statement of contentions, a “decision”, pursuant to s 241, enlivening a right of appeal under s 242 to the District Court? [question 2]; and
    3. is there an independent avenue of appeal available, pursuant to s 556 of the IR Act? [question 3]
42. [42]
    As observed, that application came before Deputy President Hartigan.  After an extensive analysis of the relevant statutory provisions and what relevant authorities there were, the Deputy President answered the respective questions as follows:

    1. Question 1: the District Court;
    2. Question 2: no; and
    3. Question 3: no.
43. [43]
    The Deputy President then held that the claim for prerogative relief was a live issue.  The jurisdiction to give such relief only vests in the Court when it is constituted by the President.  Therefore, the Deputy President dismissed the strike out application, leaving the claim for prerogative relief to be heard by this Court constituted by the President.  As earlier observed, that is the application before me.

The present application

44. [44]
    The issues alive on the claim for prerogative relief have been narrowed.  The parties rightly agreed:

    1. an appeal before the Industrial Magistrates Court from a decision under s 197D of the CMSHA is a hearing de novo in that the Industrial Magistrates Court sits in the position of Mr Stone and makes the decision afresh; and
    2. while the Industrial Magistrates Court exercises the power under s 197D de novo, the matters which the Industrial Magistrates Court is empowered to consider are limited to the issues defined by the procedures which were undertaken pursuant to Part 10A.^[23]
45. [45]
    Mr Romanski defined the issues raised on the application for prerogative relief as:

“… whether the jurisdiction is confined to consideration of the four grounds to take proposed action stated in the proposed action notice and found by the Respondent, or whether the Court has jurisdiction to hear grounds to take proposed action not stated in the proposed action notice and found in the decision i.e. consider new contraventions of safety and health obligations.”

46. [46]
    Mr Stone defined the issues as:

“(a) What is the scope of Magistrate Pinder’s jurisdiction under Part 14 of the CMSH in relation to the determination of contraventions?

2. Did Magistrate Pinder exceed this jurisdiction in his determination that Contravention 4 in the Statement of Contentions should stand?”

47. [47]
    Neither party contends that the Deputy President has erred. For reasons later explained, the provisions do not give a right of appeal from an interlocutory decision of the Industrial Magistrates Court and the appeal which is authorised is one under the CMSHA, not the IR Act.^[24]
48. [48]
    Whether the two formulations differ in substance need not be determined.  Mr Stone’s formulation reflects a conventional approach; it seeks to define the jurisdiction^[25] and then invites consideration of the actions of the Industrial Magistrate which are said to exceed that jurisdiction.^[26]
49. [49]
    Paragraph (a) of Mr Stone’s definition of the issue is not in contention.  Mr Stone concedes that the scope of the Industrial Magistrate’s jurisdiction under Part 14 of the CMSHA is to consider afresh a decision under s 197D, limited to the considerations which were identified by the process undertaken pursuant to Part 10A.
50. [50]
    That concession is properly made.  Section 197A requires the CEO to give the proposed action notice identifying the “ground”^[27] and the “facts and circumstances forming the basis of the ground”.^[28]  The proposed action notice provokes a response,^[29] and the decision^[30] is taken upon consideration of the response^[31] and whether it is determined by the CEO that the identified “ground” exists.^[32]
51. [51]
    There is nothing to suggest a legislative intention to authorise consideration by the CEO of allegations or material beyond the notice of proposed action and any response.  Therefore, what must be considered de novo by the Industrial Magistrate are the issues defined by the notice of proposed action and the response.
52. [52]
    The issue is whether the paragraphs of the statement of contentions to which objection is taken raise considerations beyond the jurisdiction of the Industrial Magistrates Court.  If the answer to that question is in the affirmative then the Industrial Magistrate has, by the decision of 12 January 2024, manifested an intention to engage in an unauthorised inquiry.  That process would exceed jurisdiction and, subject to discretionary considerations, prerogative relief should be granted.
53. [53]
    It is unnecessary to consider the nature of any discretion to refuse prerogative relief.^[33]  Here, the only possible discretionary consideration suggesting refusal of relief is the possible existence of an avenue of appeal from the Industrial Magistrate’s decision to the District Court.^[34]  However, the parties agree that the decision of the Industrial Magistrates Court is not one that is amenable to review on appeal to the District Court by s 242 of the CMSHA.  For reasons which follow, the parties’ agreement on that issue is well founded.

Consideration

54. [54]
    As already observed, s242 of the CMSHA appears in Division 1 of Part 14 and applies to decisions of Industrial Magistrates made on appeal from decisions of the CEO made under s 197D.  Section 242 provides:

“242Appeal to District Court on questions of law only

1. An appellant may appeal against the decision of an Industrial Magistrates Court to the District Court, but only on a question of law.
2. On hearing the appeal, the court may make any order for costs it considers appropriate.”

55. [55]
    The “decision” of the Industrial Magistrates Court is the one made pursuant to s 236A of the CMSHA which is:

“236AAppeals against CEO’s decisions

The following persons may appeal against the CEO’s decision under the following provisions to an Industrial Magistrates Court under this division –

1. a person whose board qualification is suspended or cancelled by the CEO – section 197D;

2. a corporation on which a civil penalty is imposed – section 267I.” (emphasis added)

56. [56]
    The “decision” made under s 197D^[35] is one to “suspend or cancel” the certificates.^[36]  That decision is taken upon consideration of the matters alleged in the proposed action notice^[37] and the submissions in reply.^[38]
57. [57]
    Therefore, the structure is:

    1. the CEO issues the proposed action notice which defines the grounds and provides a summary of the facts in support;^[39]
    2. the respondent responds;^[40]
    3. the “decision” to cancel or suspend is made;^[41]
    4. that “decision” is appealed to the Industrial Magistrates Court;^[42]
    5. the Industrial Magistrates Court affirms the “decision” to suspend or cancel the certificates; and^[43]
    6. that “decision” is the one that is subject to appeal under s 242.”
58. [58]
    It follows that an interlocutory decision of an Industrial Magistrate that does not dispose of the appeal to that Court is not a “decision” which is appealable under s 242. The only power of review of an interlocutory decision of an Industrial Magistrate made under Part 10A of the CMSHA is via the exercise of prerogative powers by this Court.
59. [59]
    Section 197A identifies the grounds for the suspension or cancellation of the competency certificates.  One such ground is “the person has contravened a safety and health obligation”.  Section 197B requires the giving of a proposed action notice which must identify “the grounds of the proposed action”^[44] and “an outline of the facts and circumstances forming the basis of the ground”.^[45]  The “ground” referred to in s 197B is, no doubt, one of the grounds defined by s 197A.
60. [60]
    Section 197C provides for a responding party to “make a submission … to show why the proposed action should not be taken”.  The response may widen the scope of consideration which is otherwise defined by the proposed action notice.  A respondent may confess and avoid by admitting the existence of the “ground” but submitting reasons, previous good performance for example, why the proposed action should not be taken.  Other examples are easily imagined.
61. [61]
    Here, I was not provided with a copy of Mr Romanski’s response.  As accepted by Mr McLeod KC for Mr Stone, the decision ultimately made under s 197D cannot define the issues on appeal to the Industrial Magistrate as the appeal is one conducted de novo.  Whether Mr Stone’s decision is affected by error is irrelevant. What is in issue here is the jurisdiction of the Industrial Magistrate and that jurisdiction is confined to a consideration of the issues raised by the proposed action notice and response.
62. [62]
    Therefore, also as accepted by Mr McLeod KC, the task here^[46] is to take the proposed action notice as the document defining the issues to be considered by the Industrial Magistrate on appeal, and determine whether the issues appearing in the statement of contentions are within the scope of the issues as so defined.  If not, the Industrial Magistrate is proposing to act outside jurisdiction by considering the issues which he did not strike from the statement of contentions.
63. [63]
    The “ground” which is identified as ground 4 appears in paragraph [22] of these reasons.   The “facts and contentions” relied upon, which appear at paragraph [23] of these reasons express the ground in paragraph [28].  That is wider than the “ground” expressed earlier in the proposed action notice. The “ground” refers only to “the detection of ethylene” but the facts and contentions refer to “rising carbon monoxide and presence of ethylene” (at [28]).
64. [64]
    I have taken it that ground 4 is as appears in paragraph [28] of the proposed action notice.
65. [65]
    By s 197B(2)(b) and (c), the “facts and circumstances forming the basis of the ground” are really the particulars of the breach of s 39(1)(c), which is the “ground”.  The allegations made in the notice of proposed action concerning ground 4 are all relevant to a “ground” of acting in breach of s 39(1)(c) and, therefore, were all relevant to the consideration of Mr Stone and, in turn, the Industrial Magistrate on appeal, pursuant to s 236A.
66. [66]
    Here, as already observed, the proposed action notice alleges four grounds.  In support of the four grounds are one set of homogenised “facts and circumstances”.  No objection was taken to that approach.  However, when the statutory command is to determine the existence of a “ground” after considering the response to the “outline of facts and circumstances forming the basis for the ground”; what is required is to distil the “facts and circumstances” which pertain to each “ground”.
67. [67]
    Grounds 1, 2 and 3 all relate to “sealing” of the mine.  Ground 4 stands alone.  It is a discreet allegation that the mine workers were not withdrawn from underground.  That is alleged to constitute a breach of s 39(1)(c).
68. [68]
    A breach of s 39(1)(c) can be constituted by an “act” or “omission” and that will be clear from the “facts and circumstances forming the basis of the ground”.  Something could be done (an act) to increase risk and constitute a breach of the safety obligation, or there could be a failure to do something which would otherwise have reduced the risk to an acceptable level (an omission).  What is alleged here is the latter.
69. [69]
    The alleged omissions are identified in paragraph [28] of the proposed action notice.  It alleges:

    1. a failure to withdraw workers to the surface on 28 August 2018; and
    2. a failure to call an independent management team (IMT) to manage “spontaneous combustion”.
70. [70]
    Paragraph [28] of the proposed action notice alleges reasons why those two actions should have been taken, presumably to ensure risk to the workers was at an acceptable level.  Those reasons were:

    1. the presence of ethylene; and
    2. rising carbon monoxide levels.
71. [71]
    Oddly, one of the “preliminary findings” in the proposed action notice is that Mr Romanski should not have authorised the return of the workers underground. The facts and circumstances in support of ground 4, and indeed ground 4 as articulated in the proposed action notice only refers to a failure to withdraw the workers; not a positive act of authorising them to return underground.
72. [72]
    Paragraph [15](d) of the statement of contentions^[47] invites an enquiry and determination beyond jurisdiction.  It does so in two respects.  It expands the “failure” to “failing to take reasonable and necessary actions”.  That could encompass all types of actions beyond that specifically identified by the proposed action notice which limits omissions to failing to remove workers to the surface and a failure to call an IMT.
73. [73]
    Secondly, it expands the alleged reasons why these actions were necessary to preventing workers “continuing to work in unsafe conditions”.  The proposed action notice limited the “unsafe conditions” to the presence of ethylene and rising carbon monoxide.
74. [74]
    The “facts and circumstances” which support ground 4 no doubt include some of the early, broad allegations in the proposed action notice; paragraphs 1, 2 and 3 of the “facts and circumstances” and perhaps others.  However, the allegations in support of ground 4 are, for present purposes, limited to paragraphs [26] to [30].^[48]  They are the paragraphs that allege that:

    1. ethylene was present;
    2. carbon monoxide levels were rising;
    3. the workers were not withdrawn; and
    4. no IMT was called.
75. [75]
    These facts are what are alleged to form the basis of ground 4.
76. [76]
    The detailed allegations about ground 4 appear in paragraphs [84] to [103] of the statement of contentions.^[49]
77. [77]
    Paragraphs [84] and [85] are merely statements as to the effect of provisions of the CMSHA and are not objectionable.
78. [78]
    Paragraph [86] introduces allegations of the presence of methane.^[50]  The outline of facts and circumstances in the notice of proposed action does not mention methane at all, let alone in relation to ground 4.  The statement of contentions alleges that the workers should have been withdrawn to the surface on 28 August 2018 because of “rising carbon monoxide …” and the “presence of methane”.
79. [79]
    Paragraph [86] also alleges that the relevant conditions were prevailing “In the days preceding 28 August 2018”.  Paragraph [87] concerns “Mr Romanski’s actions” during the period from early August 2018 to at least 29 August 2018.  However, the outline of facts and circumstances in the notice of proposed action (as it relates to ground 4) limits Mr Romanski’s alleged failures to those occurring as described in the notice of proposed action on 28 August 2018. 
80. [80]
    It is alleged that Mr Romanski authorised the miners to return below ground.  The notice of proposed action does not identify that authorisation as a breach of s 39.  It does not identify any positive action of Mr Romanski as a breach supporting ground 4.  It identifies the failure to withdraw the workers as the breach.^[51] Preliminary finding 13 can’t be supported by the “facts and circumstances”. To the extent that paragraphs [88] to [92] allege a failure of Mr Romanski to withdraw the workers, the reasons involve methane concentration.^[52]  The failure to withdraw workers alleged in the notice of proposed action against Mr Romanski relevant to ground 4 only related to ethylene and carbon monoxide concentration.
81. [81]
    Paragraph [87] also alleged “explosibility” and methane concentrations, neither of which is mentioned in the parts of the proposed action notice relevant to ground 4.
82. [82]
    Paragraph [88](d) refers to methane. Paragraph [89] repeats an allegation in the proposed action notice but paragraph [90] introduces new allegations about an email.
83. [83]
    Paragraph [91] alleges excessive methane concentrations which is not one of the gases mentioned in the proposed action notice. 
84. [84]
    Paragraph [95] alleges that Mr Romanski failed to cause “additional risk assessments”.  This is not an omission alleged in the proposed action notice as it relates to ground 4. Paragraphs [92], [93], and [94] seem to relate to that alleged omission.
85. [85]
    Paragraph [96] alleges that Mr Romanski allowed workers to re-enter the mine.  The proposed action notice as it relates to ground 4 alleges a failure to withdraw them, not a failure to prevent them entering the mine. Preliminary finding 13 is not, as I have observed, supported by the “facts and circumstances”.
86. [86]
    Paragraphs [97], [98], and [99] all concern circumstances after the workers re-entered the mine.  It is unclear how this relates to the omission alleged in ground 4 of the proposed action notice.
87. [87]
    Paragraphs [100](a) and [100](c) make allegations beyond the proposed action notice.  Paragraph [100](a) alleges a failure to react to an email.  Paragraph [100](c) concerns the workers re-entering the mine.  Nothing about that is mentioned in the proposed action notice as it relates to ground 4.  The only complaint was a failure to withdraw the workers upon the detection of ethylene and rising levels of carbon monoxide.
88. [88]
    Paragraph [101] is objectionable as it refers to allegations in paragraphs [86] to [99] which are themselves objectionable.
89. [89]
    For reasons already explained, paragraphs [102](b), [102](c), and [102](d) make allegations beyond the proposed action notice as it relates to ground 4 in that they:

    1. refer to “spontaneous combustion indicators” without limiting those to carbon monoxide and ethylene”;^[53]
    2. allege the presence of methane;^[54] and
    3. allege the re-introduction of workers to underground areas.^[55]
90. [90]
    Paragraph [103] is also objectionable to the extent that the alleged omissions are beyond those alleged in the proposed action notice concerning ground 4 as explained above.

Relief

91. [91]
    The Industrial Magistrate has not been joined to the application for prerogative relief.  He is a necessary party.
92. [92]
    Consistently with R v Australian Broadcasting Tribunal; ex parte Hardiman,^[56] the Industrial Magistrate would enter a submitting appearance and not take any active role.  The application, as filed, seeks costs but the only respondent named is Mr Stone.  Therefore, no costs are sought against the Industrial Magistrate. The Industrial Magistrate has no real interest in the proceedings.
93. [93]
    It is appropriate to waive service of the proceedings upon the Industrial Magistrate. 
94. [94]
    The appropriate relief is declaratory. I will make declarations which reflect these reasons.
95. [95]
    I will make orders for the exchange of submissions on costs.

Orders

96. [96]
    It is ordered that:

1. Industrial Magistrate Joseph Pinder is joined as a respondent to the application for prerogative relief filed in the appeal proceedings.
2. Service of the application for prerogative relief upon Industrial Magistrate Pinder is dispensed with.

97. [97]
    It is declared that:

1. The jurisdiction of the Industrial Magistrates Court under s 236A of the Coal Mining Safety and Health Act 1999 is to determine whether Mr Romanski’s certificates should be cancelled by considering whether each ground alleged in the notice of proposed action is established by the facts and circumstances outlined in the notice of proposed action to support each ground, and any submissions made by Mr Romanski pursuant to s 197B of the Coal Mining Safety and Health Act 1999.
2. In deciding the application to strike out parts of the respondent’s statement of contentions, the Industrial Magistrate wrongly ruled that on review of the cancellation of the certificates he should embark upon consideration of all the facts and circumstances alleged in the statement of contentions and so acted beyond jurisdiction.
3. In particular, in the Industrial Magistrate’s consideration of Ground 4, the following is beyond jurisdiction:

1. The presence of methane.

2. The presence of any “spontaneous combustion indicators” except ethylene and carbon monoxide.

3. Any act of Mr Romanski, in particular but not exhaustively, any act by Mr Romanski to cause workers to go underground.

4. Any omission of Mr Romanski other than the failure to withdraw the mine workers on 28 August 2018.

5. Any reason to withdraw workers from underground apart from the presence of ethylene and rising carbon monoxide levels.

6. Explosibility.

7. Any circumstances arising before or after 28 August 2018.

8. Any failure of Mr Romanski to act upon the email of 12.35 pm on 28 August 2018.

1. Any failure of Mr Romanski to undertake appropriate risk assessments.

98. [98]
    It is further ordered:

1. The applicant file and serve written submission on costs by 4.00 pm on 24 September 2025.
2. The respondent file and serve written submissions on costs by 4.00 pm on 1 October 2025.
3. The applicant file and serve written submissions on costs in reply by 4.00 pm on 8 October 2025.
4. Each party have liberty to file and serve, by 4.00 pm on 15 October 2025, a notice of intention to make oral submissions as to costs.
5. In the absence of the filing and service of any notice of intention to make oral submissions on costs, costs will be determined on any written submissions without further oral hearing.