Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Martin Carmody v Ronald William Frankel [2003] NSWIRComm 159 PROSECUTOR Inspector Martin Carmody (WorkCover Authority of NSW) PARTIES : DEFENDANT Ronald William Frankel FILE NUMBER: IRC 6979 of 2001 CORAM: Marks J CATCHWORDS : Plea of guilty to prosecution under s 50(1) of the Occupational Health & Safety Act - Concurrent jurisdiction before Chief Industrial Magistrate - Held costs to be assessed as if proceedings commenced before Chief Industrial Magistrate LEGISLATION CITED : Occupational Health and Safety Act 1983 ss 50(1) 16(1) Industrial Relations Act 1996 Collison v Williams (1998) 84 IR 101 CASES CITED : WorkCover Authority of NSW (Insp Thomas) v Cruden (1996) 67 IR 469 WorkCover Authority of NSW (Insp Wong) v Aluminium Contractors Sales (NSW) Pty Ltd [2000] NSWIRComm 233 HEARING DATES: 04/08/2003 DATE OF JUDGMENT: 05/27/2003 PROSECUTOR Ms I M McManus of counsel SOLICITORS Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Dr S Thomas of counsel SOLICITORS Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 27 May 2003 Matter No IRC 6979 of 2001 INSPECTOR CARMODY (WORKCOVER AUTHORITY OF NSW) v RONALD WILLIAM FRANKEL Prosecution under s 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT RE COSTS 1 These proceedings involved a prosecution under s 50 (1) of the Occupational Health and Safety Act 1983 ("the Act") by the prosecutor Inspector Carmody of the WorkCover Authority of New South Wales against the defendant Ronald William Frankel. In a judgment delivered 10 December 2002 the defendant was found guilty and convicted of the offence with which he was charged, he having pleaded guilty. The defendant was fined $4,500 and costs were reserved. 2 The parties have been unable to reach agreement about costs. In a hearing conducted on 8 April 2003 the prosecutor sought costs at a level appropriate to costs recoverable in proceedings in this Court. The defendant submitted that costs should be assessed as though the proceedings had been commenced before the Chief Industrial Magistrate, on the basis that the Chief Industrial Magistrate's Court was an alternative jurisdiction and that the proceedings ought more properly to have been commenced in that jurisdiction. The parties reached agreement as to the appropriate level of costs in each jurisdiction, it being sufficient to note that there is a considerable difference in the levels. The prosecutor had assessed costs in this Court on a reduced basis at $12,000. The defendant had proffered costs of $4,950 as being appropriate by reference to the Chief Industrial Magistrate's Court. 3 The prosecutor asserted that as a matter of principle there was concurrent jurisdiction in this Court and in the Chief Industrial Magistrate's Court, that he could elect to commence proceedings in either court and that the appropriate level of costs should apply. Ms McManus of counsel who appeared for the prosecutor relied on a decision to this effect which I had given in Collison v Williams (1998) 84 IR 101. Those proceedings involved a prosecution instituted on behalf of an industrial organisation of employees for breach of a provision of the Industrial Relations Act 1996. There was concurrent jurisdiction before the Chief Industrial Magistrate. I concluded that in the context of the particular proceedings it was appropriate to award costs at a level which applied before this Court rather than the Chief Industrial Magistrate's Court. In doing so I rejected a contrary approach which I had taken in WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 in which I concluded that the level of costs to be paid by the defendant to a prosecution brought in this Court for breach of the Act should have been those appropriate to costs awarded in the Chief Industrial Magistrate's Court. I should add that in the context of a prosecution under the Act a similar approach has been taken by Schmidt J in WorkCover Authority of New South Wales (Inspector Wong) v Aluminium Contractors Sales (NSW) Pty Ltd [2000] NSWIRComm 233. 4 Both this Court and the Chief Industrial Magistrate's Court are created by statute and the regime under which prosecutions under the Act is brought is entirely statutory. There are many other circumstances where concurrent jurisdiction exists, but the legislature either directly or indirectly through a delegated process has created circumstances in which any controversy with respect to costs may be dealt with and resolved. I instance the obvious example of the costs regime which applies to civil proceedings in the Supreme Court of New South Wales where lesser scales of costs apply in principle if certain judgment thresholds are not met. This is to encourage the bringing of proceedings before the District Court where concurrent jurisdiction exists. The same situation applies concerning concurrent civil jurisdiction in the District and the local courts. 5 No such guidance is given in connection with proceedings for a breach of the Act which may be brought concurrently before this Court or the Chief Industrial Magistrate's Court. I am not prepared to draw any distinction between the two Courts based on expertise or any so-called differential ability to deal with more or less "complex" proceedings. On one view of it the only discriminating factor might be the level of costs. It is arguable that the WorkCover Authority of NSW ought as a matter of general principle be entitled to recover as much as it can by way of costs so as to diminish any undue expenditure from the public purse in prosecuting breaches of the Act. It is likewise arguable that defendants ought not to be exposed as a matter of principle to a costs order greater than that which might otherwise apply given the existence of a cheaper jurisdiction as an alternative to a more expensive jurisdiction. 6 No doubt, at some stage, it may become necessary for this matter to be resolved by way of principle but I apprehend that these are not the proceedings in which such issues of principle should be determined. The amounts involved are relatively small and the costs involved in determining the matter by way of principle (which would involve a great deal more by way of legal research from the parties than has occurred to date) would be considerable. By letter dated 19 February 2003 addressed to the Registrar of this Court the defendant's solicitor indicated that the defendant was "a recently discharged bankrupt" and that he did not have sufficient resources to pay the fine of $4,500. It would be unjust in these circumstances to impose any further costs on this defendant by way of continuing litigation concerning the appropriate level of costs. 7 These proceedings arise under s 50(1) of the Act. Therefore the defendant's guilt arises out of the fact that he was a director of a corporation which had breached s 16(1) of the Act. Having regard to this and having regard to all of the circumstances surrounding the proceedings as more fully set out in my earlier judgment I conclude pursuant to the discretion which reposes in this Court concerning costs that it is more appropriate that the level of costs be fixed by reference to the quantum of costs which would apply if the proceedings had been initiated in the Chief Industrial Magistrate's Court. Those costs must, unfortunately be assessed by the Court if the parties are unable to reach sensible agreement for the reasons which I set out in Collison and which, as I understand it, have not yet been addressed by way of amendment made to the Legal Profession Act. I repeat the observation which I made in Collison that if it were necessary for the Court to assess costs it would be necessary to undertake a detailed inquiry as to the appropriate level of costs in the manner to which I also referred in Collison. The costs of that inquiry would far exceed the amount of costs which would otherwise be payable. 8 The defendant having succeeded in connection with this particular matter should have a costs order in his favour confined to this discrete issue, unless the prosecutor exercises the liberty to apply which I hereby grant within a fourteen day period. ORDERS I make the following orders: 1. The defendant is to pay the costs of the prosecutor save with respect to the proceedings before this Court on the 8 April 2003 such costs to be in an amount payable as if the proceedings were conducted before the Chief Industrial Magistrate's Court to be assessed by this Court in default of agreement. 2. The prosecutor is to pay the defendant's costs of the proceedings before this Court on 8 April 2003 such costs to be in an amount payable as if the proceedings were conducted before the Chief Industrial Magistrate's Court to be assessed by this Court in default of agreement unless the prosecutor exercises the liberty to apply (which I hereby grant) within fourteen days of this date. _________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.