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Dyno Wesfarmers Limited v Chief Inspector of Mines [1996] PGLawRp 749; [1996] PNGLR 408 (28 June 1996)

PNG Law Reports 1996

[1996] PNGLR 408 - Dyno Wesfarmers Limited v The Chief Inspector of Mines

[1996] PNGLR 408

N1454

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DYNO WESFARMERS LIMITED

V

THE CHIEF INSPECTOR OF MINES

Waigani

Andrew J

13 March 1996

15 March 1996

28 June 1996

JUDGMENT AND ORDERS - Declaratory Orders - Right of Appeal from a Mining Inspector to Chief Inspector of Mines - whether conclusions of a Mining Inquiry established under the Mining (Safety) Act are subject to Appeal as a �Decision, Requisition or Order� under s 6(3) of the Mining (Safety) Act.

WORDS AND PHRASES - �Decisions, requisition or orders� as used in Mining (Safety) Act Ch 195 is synonimous to �findings�.

Facts

The applicant seeks a declaratory order that the appeal against the �decisions, requisition or order� reached by the Inspector, is a competent appeal pursuant to s 6(3) of the Mining (Safety) Act.

Held

The acts and conclusion of the Inspector amounted to a decision within the meaning of s 6(3) of the Mining (Safety) Act Ch 195 and accordingly there is a right of appeal to the Chief Inspector.

Cases Cited

Re Dover and Kent County Court [1891] UKLawRpKQB 87; [1891] 1 QB 725.

28 June 1996

ANDREW J: In this matter judgment was delivered on 15 March 1996 with full reasons to be published in due course. That judgment is now re-produced herewith together with full reasons.

The applicant/plaintiff in this matter seeks declaratory orders in the following terms:

N2>1.������ A declaration that the whole of the Appeal by the plaintiff against the �Inquiry Report, Dyno Wesfarmers Plant Explosions 2nd August 1994, Porgera Gold Mine�, is competent pursuant to s 6(3) of the Mining (Safety) Act Ch 195A (the Act).

The application involves the interpretation of whether the right to appeal from a �decision, requisition or order� of an inspector provided by s 6(3) of the Mining (Safety) Act Ch 195 applies to those acts and conclusions of an inspector appointed to inquire into the causes of an accident under s 59 of the Act.

The inquiry report of Mr. Jain of the 2nd August 1994 shows that certain �findings� and �recommendations� were made. I am satisfied that those findings or conclusions amounted to a decision within the meaning of s 6(3) of the Act. I find that the acts and conclusions of an inspector appointed under s 59 of the Act amount to a decision within the meaning of the Act and that accordingly there is a right of appeal from such inquiry to the Chief Inspector under s 6(3) of the Act.

Full reasons will be published in due course.

ORDER

Declaratory Order that the appeal by the plaintiff in this matter, Dyno Wesfarmers Limited, against the �Inquiry Report, Dyno Wesfarmers Plant Explosions 2nd August 1994, Porgera Gold Mine� is competent pursuant to s 6(3) of the Mining (Safety) Act Ch 195.

The background to this matter is not in dispute and as submitted is as follows:

An explosion occurred at the plant of the plaintiff at Porgera on the morning of the 2nd August 1994. An Inquiry under s 59 of the Mining (Safety) Act Ch 195 A was ordered, and the Inquiry delivered its conclusions in a document titled �Inquiry Report, Dyno Wesfarmer�s Plant Explosions, 2 August 1994 Porgera Gold Mine� on or about 18th January 1995. (�The Inquiry Report�).

On or about 7 February 1995 an appeal was lodged by the plaintiff under s 6(3) of the Mining (Safety) Act.

On Monday 8 January 1996 Mr John Twaddle was appointed by notice in the National Gazette to be the Chief Inspector of Mines as from that day. The purpose of the appointment of Mr Twaddle was to enable him to hear the Appeal lodged by the plaintiff under s 6(3) of the Mining (Safety) Act (�The Act�).

At the commencement of the hearing Mr Twaddle allowed Mr. N.C. Jain (the author of the Inquiry Report) to be a party to the appeal. Mr. Jain then objected to the competency of the appeal on the basis that the Inquiry Report was not a document which could be the subject of an appeal within the meaning of s 6(3) of the Act, and in particular that the conclusions drawn in the Inquiry Report were �findings� (at best) and that s 6(3) only permitted appeals against �decisions requisitions, or orders� and that the �findings� were not within the ambit of those words.

On 10 January 1996 Mr Twaddle ruled that in his opinion the appeal was competent. Mr Jain maintained his objection and Mr Twaddle ruled that he would not proceed to hear the appeal in substance until a Court had ruled on the issue of competency.

Mr Jaine was originally appointed to inquire into the causes of the accident under s 59 of the Act. His objection to the competency of the appeal was that s 6(3) of the Mining (Safety) Act did not permit an appeal on the findings of such an Inquiry Report for there could, it was said, only be an appeal against �a decision, order or requisition� within the meaning of s 6(3) of the Act. Mr Twaddle ruled that the term �decision� as used in the Act was synonymous with the word �findings�.

The question before this Court was therefore the narrow one of whether the right of appeal from �a decision, requisition or order� of an inspector provided by s 6(3) of the Act applied to those acts and conclusions or findings of an inspector appointed to inquire into the causes of an accident under s 59 of the Act.

Section 6.3 of the Act is as follows:

�Any person who is aggrieved by a decision, requisition or order of an Inspector made under this Act may appeal in writing to the Chief Inspector who shall as soon as practicable, hear and dispose of the appeal, but the bringing of the appeal does not effect the operation of the decision, requisition or order appealed from pending disposition of the appeal.�

In considering whether �a finding� in the circumstances of this matter amounted to a �decision, requisition or order� which was subject to appeal, I think it is necessary to consider the ambit of the inquiry and the nature of its conclusions. It is also necessary to consider the purpose and intention of the Act.

The word �finding� is not defined in the Act nor is there a definition of �decision, requisition or order�. Finding has been defined as �the determination of a factual issue, as a result of judicial inquiry�. (The CCH Macquarie Concise Dictionary of Modern Law). �Decision� is a popular, and not a technical word and means little more than a concluded opinion (See Re Dover and Kent County Court [1891] UKLawRpKQB 87; [1891] 1 QB 725). It may not of itself amount to a judgment for clearly many �decisions� may be reached in any hearing or determination prior to there being a judgment.

The Act provides for the regulation and inspection of mines and works. Its declared purpose is for giving effect to the public interest in public safety, public welfare and public health.

The Inquiry Report refers to its �conclusions� as:

N2>�5.����� Conclusions

5.1���� Cause of the initial explosion

5.2.��� Cause of the second explosion�

It then makes various recommendations.

These conclusions are based on a wealth of factual material and in my view are �findings� or decisions on the facts. The words can only be given their plain and ordinary meaning and I can only conclude that the Inquiry did reach a decision. I think that �finding� in this context was synonymous with �decision�. They were not interlocutory �decisions�. In arriving at a conclusion as to the cause of both explosions a final decision was arrived at.

Further, the Act is concerned with safety in the mining industry and I think that there is a policy and intention discernible in the Act that the conclusions of a Mining Inspector should be subject to review by the Chief Inspector. This was clearly a very important inquiry concerning significant matters of safety. It was an inquiry into an accident in which 11 persons lost their lives.

As already found, when this decision was handed down on the 15th March 1996, I am satisfied that the acts and conclusions of the Inspector in this matter, appointed under s 59 of the Act, amounted to a decision within the meaning of s 6(3) of the Act and accordingly there is a right of appeal from the inquiry to the Chief Inspector.

Lawyer for the applicant/plaintiff: Gadens Ridgeway.

Lawyer for the respondent/defendant: Solicitor General.