WorkCover Authority of NSW (Insp Carmody) v Develco Projects Pty Ltd [2001] NSWIRComm 246

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Insp Carmody) v Develco Projects Pty Ltd [2001] NSWIRComm 246 PROSECUTION: PARTIES : WorkCover Authority of NSW (Insp Carmody) DEFENDANT Develco Projects Pty Ltd FILE NUMBER: IRC2636 of 1999 CORAM: Kavanagh J CATCHWORDS : Application for costs on an Indemnity Basis after Prosecutor presents no evidence - Application based on two grounds: insufficient evidence from prosecution as to conduct causative of risk: failure of prosecutor to prove essential element of offences, namely, "employer" - Charge dismissed under s14(1)(b) of the Supreme Court (Summary Jurisdiction) Act 1967 - Principles to be applied to consideration by the court in the use of its discretion to award application for costs - Indemnity costs requires consideration as to whether there was unreasonable conduct on the part of the prosecution - Costs allowed on a party and party basis - Onus on court to determine, from evidence, just and reasonable costs and to give reasons. In quantification of costs Court can be assisted by advice from Registrar - Orders must be particular Occupational Health and Safety Act 1983 LEGISLATION CITED : Industrial Relations Act 1996 Supreme Court (Summary Jurisdiction) Act 1967 WorkCover Authority of NSW (Insp Ankucic) v J L Lennard Foods Equipment Pty Ltd (No. 2) (1999) 92 IR 111 CASES CITED : Latoudis v Casey (1990) 170 CLR 534 Rosniak v Government Insurance Office (1997) 41 NSWLR 608

HEARING DATES: 08/20/2001 DATE OF JUDGMENT: 10/12/2001