Whitehaven Coal fails in Court of Criminal Appeal to derail blasting prosecutions

The NSW Court of Criminal Appeal has rejected an appeal by Whitehaven’s Maules Creek Coal mine to interrupt and derail a series of four blasting prosecutions, based on accusations of “apprehended bias” of Justice Sarah Pritchard who has been presiding over the cases since February 2023.

As reported by ABC New England & North West: https://www.abc.net.au/listen/programs/abc-new-england-north-west-local-news/abc-new-england-north-west-local-news/103047124 (At 1:28 mins of this ABC Report)

Rejecting Whitehaven’s argument, the urgent judgment issued by five Judges said the Court will not entertain “frivolous and speculative” cases.

Image: NWPA (February 2023) Boggabri Coal mine which suffered impacts from a blast over 2km away at the Maules Creek Coal mine on 20th August 2020

Maules Creek Coal Pty Ltd, operated by Whitehaven Coal, is accused of not blasting in a competent manner which led to around 100 workers at the Boggabri Coal mine, over 2 km away, being evacuated from a working pit after overpressure from a blast reportedly resulted in workers suffering pain and being sent to Boggabri Hospital with reported ear injuries. Whitehaven has argued in the NSW Land and Environment Court that it had no responsibility to consider workers at Boggabri Mine as “sensitive receivers” and therefore did not have to take them into account when calculating the potential impact of the blast. One worker has already initiated legal action against Maules Creek Coal claiming injury.

Whitehaven accused the Judge of apprehended bias on the basis of a fleeting chance communication she had with an opponent of the Maules Creek Coal mine back in February, 2023. It is clear from the facts stated in Court that the attempt by Whitehaven to derail the case was a cynical attempt to force the cases to be re-heard under another judge, leading to years of delay.

As a result of the Court of Criminal Appeal decision, the NSW Land and Environment Court now continue will to hear the cases along with a further 16 prosecution counts to follow, which are collectively called “the fume cases” and relate to poisonous NO2 gas repeatedly caused by alleged incompetent blasting at the open cut mine.

Due to the public interest in these cases and the fact that many interested public are located in the North West, the NSW Land and Environment Court has made a link available. Here are the details as per the NSW Land and Environment Court’s listing page. The case is expected to run a further four day, from Monday 13th – Thursday 16th November. There have already been 14 days of hearing in these cases.

Observer link for public to follow the case:

Justice S Pritchard
Part Heard Hearing 10:00AM
Observers use link: https://avl.justice.nsw.gov.au/invited.sf?id=10197527&secret=ylFOKd2PVQOxIcwWzAgrkQ

Court 13A
225 Macquarie Street  SYDNEY 2000

1 2021/00234554 Environment Protection Authority v Maules Creek Coal Pty Ltd
2 2021/00234556 Environment Protection Authority v Maules Creek Coal Pty Ltd
3 2021/00234557 Environment Protection Authority v Maules Creek Coal Pty Ltd
4 2021/00234558 Environment Protection Authority v Maules Creek Coal Pty Ltd

It is regrettable that Whitehaven Coal will not have to pay costs to the NSW EPA for its abuse of the judicial system in bringing this frivolous and speculative case to the NSW Court of Criminal Appeal. Costs are not payable in the criminal law system. It is worth pointing out that Whitehaven’s gaming of the system by accusing Justice Pritchard of apprehended bias now leaves the NSW EPA litigation budget poorer, diminishing the regulator’s financial capacity to pursue polluting offenders.

Court observers heard Whitehaven’s barrister aggressively question Boggabri Coal worker, Jono Byrnes of Emerald Hill, arguing that a 2m high bund was sufficient to protect workers from the impacts of the massive blast, which Maules Creek’s shot firer David Welch told Justice Pritchard was “the biggest bang I have ever seen”.

Mr Welch also told the Court in February that he had concerns about the blast design which he conveyed to management and called a halt to the blast but they assured him the blast had been modelled by the expert. Maules Creek Mine’s acting Technical Services Superintendent Ryan Gomez told the Court, “There was a process but it wasn’t being followed very well”… “We didn’t have people around to get signatures for sign-off”.


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