Industrial Relations Commission of New South Wales in Court Session CITATION : Rodney Morrison v Tahmoor Coal Pty Ltd [2003] NSWIRComm 280 PROSECUTOR: Rodney Morrison PARTIES : DEFENDANT: Tahmoor Coal Pty Ltd FILE NUMBER: IRC 4867 of of 2001 CORAM: Haylen J Supreme Court (Summary Jurisdiction) Act 1967, s 14 - costs - prosecution under s 15(1) Occupational Health and Safety Act, 1983 - prosecution fails due to operation of Coal Mines Regulation - order dismissing summons announced in open court and reasons for judgment issued on same day - no application to Court for costs by defendant until nearly five months after summons dismissed - order dismissing summons effective when given in court - effect of Pt 40 r 3, Supreme Court Rules - jurisdiction to award or make provision for costs available on day order announced and not afterwards - no jurisdiction to deal with defendant's late application for costs - position not affected by repeal of Supreme Court (Summary Jurisdiction) Act, 1967 by Criminal Procedures Amendment (Justices and Local Courts) Act 2001 CATCHWORDS : Costs - effect of s 14, Supreme Court (Summary Jurisdiction) Act, 1967 - jurisdiction to award or make provision for costs available on day order announced and not afterwards Practice and procedures - order dismissing summons under s 15(1), Occupational Health and Safety Act, 1983 - when order effective - operation of r 89 Industrial Relations Commission Rules - application of Pt 40, r 3, Supreme Court Rules - order effective on date given in court Supreme Court (Summary Jurisdiction) Act 1967 s 14 Justices Act 1902 s 41A(1)(a) s 41(6)(a) Industrial Relations Commission Rule r 89 r 203 Industrial Relations Act 1996 s 168 LEGISLATION CITED : Industrial Court (Interim Rules) 1992 Supreme Court Rules Pt 40 r 3 Pt 52A rule 5 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 Criminal Procedure Act 1986 s 253 Caltex v Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552 Carbines v Powell (1925) 36 CLR 88 at 92) DJL v Central Authority (2000) 201 CLR 226 at 245 Ex parte Mawbey, re Hogan (1970) 92 WN(NSW) 888 CASES CITED : Fosse v Director of Public Prosecutions and anor (1989) 16 NSWLR 540 at 546 Harris v Schembri (unreported of Bryson J, 7 November 1995) Healey v Williams (1985) 10 FCR 254 at 256 Re Manley (2000) 112 A CrimR 570 at 571, 572 WorkCover Authority of NSW (Inspector Ankucic) v L J Lennard Food Equipment Pty Ltd (No 2) (1999) 92 IR 111 WorkCover Authority of NSW (Inspector Dawson) v Plastachem Pty Ltd and ors (2001) 110 IR 351 at 360-361 HEARING DATES: 07/29/2003 DATE OF JUDGMENT: 09/04/2003 PROSECUTOR: Ms F Backman of counsel SOLICITOR: Ms J Burton Crown Solicitor's Office LEGAL REPRESENTATIVES: DEFENDANT: Mr M Shume of counsel Mr G McCann Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 4 September 2003 Matter No. IRC 4867 of 2001 RODNEY MORRISON v TAHMOOR COAL PTY LTD PROSECUTION UNDER s 15(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983 JUDGMENT [2003] NSWIRComm 280 1 On 3 December 2002, the Court delivered reasons for judgment in dismissing proceedings brought against the defendant under s 15(1) of the Occupational Health and Safety Act 1983. The hearing of the charge occupied five days and the decision turned substantially upon the operation of the Coal Mines Regulation. After stating the reasons why the prosecution against the defendant was not made out, the judgment concluded by stating the order of the Court in the following terms: The summons against the defendant under s 15(1) of the Occupational Health and Safety Act 1983 is dismissed. 2 When judgment was delivered, reference was made briefly to the major issues and the order of the Court was then announced. The reasons for judgment were then published, being made available at the rising of the Court. At that time no application was made on behalf of the defendant for the payment of its costs and a no costs order was announced by the Court. Apparently, by letter dated 20 March 2003, a copy of the defendant's costs was provided to the prosecution with a letter requesting payment. It was not until 2 May 2003 the prosecutor advised that, pursuant to the provision of the Supreme Court (Summary Jurisdiction) Act 1967, no costs were, in the circumstances, payable. The prosecutor was advised by the defendant on 14 May 2003 of its intention to have the matter re-listed to deal with the issue of costs. The Court was advised of the issue by the defendant and listed the matter for mention and directions on 5 June 2003. 3 The parties have argued their position in relation to costs by filing written submissions which have been supported by short oral submissions. The defendant firstly relied upon the decision of the Full Court in WorkCover Authority of NSW (Inspector Dawson) v Plastachem Pty Ltd and ors (2001) 110 IR 351 at [48] for the proposition that, by enacting s 14 of the Supreme Court (Summary Jurisdiction) Act, the common law rule of the Crown neither receiving nor paying costs had been abolished and that where a defendant had secured the dismissal of a criminal charge, it would not generally be just and reasonable to deprive the defendant of an order for costs. 4 Comparison was then made between s 14 of the Supreme Court (Summary Jurisdiction) Act 1967 ("the Summary Jurisdiction Act") and s 41A(1)(a) of the Justices Act 1902. Section 14 of the Summary Jurisdiction Act is headed "Judge may order payment of costs". The section and related s 16 provides as follows: (1) Where a judge - (a) convicts any person of an offence punishable in the summary jurisdiction of the Court; (b) makes an order dismissing the charge for any such offence; or (c) makes an order under sub-section 1 of s 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence, the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c) of this sub-section, to pay to the prosecutor, or, in the case of an order referred to in paragraph (b) of this sub-section, order the prosecutor to pay to the defendant, such costs as to the Judge seems just and reasonable. (2) The amounts so ordered to be paid for costs shall in all cases be specified in the conviction or order. … 16(1) the Judge by whose conviction or order any moneys are ordered to be paid may in any by such conviction or order do all or any of the following things, namely, - (a) allow time for the payment of the moneys; (b) direct payment to be made of the moneys by instalments; (c) direct that the person liable to pay the moneys may give to the satisfaction of the Judge security, with or without a surety or sureties, for the payment of the monies or of any instalment thereof. … (4) a Judge directing the payment of any such moneys or of an instalment of any such moneys, may direct the payment to be made at such time or times, and in such place or places, and to such person or persons, as may be specified by the Judge in the direction and every person to whom any such moneys or instalment are or is paid, if he or she is not the person entitled to enforce the payment, shall, as soon as is practicable, account for and pay the moneys or instalments to that person. 5 Under the Justices Act 1902, s 41A(1)(a) provided as follows: (1) the Justice or Justices - (a) when making an order discharging a defendant as to the information then under inquiry … may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a) may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the Clerk of the Court to be paid to the defendant such costs as to the Justice or Justices seem just and reasonable. 6 It was submitted that s 41A(1)(a) of the Justices Act clearly focused on the Court "when making an order", while s 14 of the Summary Jurisdiction Act did not. The Justices Act provision was considered by Smart J in Fosse v Director of Public Prosecutions and anor (1989) 16 NSWLR 540 at 546 where his Honour stated: The second question is whether the power to make an order for costs other than in and by the order of discharge means that a substantive application for costs can be made on a date subsequent to the order or process of discharge. I do not think that there is such a power because under s 41A the power is limited to the process of discharge - 'when making an order discharging a defendant'. Later, at 547, his Honour referred to the Supreme Court Rules stating: … Supreme Court Rules 1970, Pt 52, r 5, enables the Court to exercise his powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. There is no similar express provision in the Justices Act. It was submitted that the Supreme Court Rules were in similar form to the Industrial Relations Commission Rule 203. 7 The defendant submitted that guidance on the operation of s 14 of the Summary Jurisdiction Act was given by the unreported judgment of Fisher CJ of the Industrial Court in Inspector Richard Charles Clarke v W L Meinhardt and Partners Pty Ltd (IC 1212 and 1213 of 1990, 11 November, 1992). In that case the defendant to a prosecution under the Occupational Health and Safety Act 1983 had been found not guilty of the offence as charged, but an application for costs was made some weeks after that finding. Fisher CJ considered s 14 of the Summary Jurisdiction Act in the context of the Industrial Court (Interim Rules) 1992 which had an operation similar to the Supreme Court Rules and the present Industrial Relations Commission Rules. His Honour noted that, by s 14(2), the amount ordered to be paid for costs was to be specified in the conviction or order. His Honour was directed to the judgment in Fosse and also to Healey v Williams (1985) 10 FCR 254 at 256 concerning the operation of provisions such as the Justices Act, s 41A. In relation to those judgments his Honour stated: There are however at least two positions within the legislative scheme governing these trials which distinguish the position under the Supreme Court (Summary Jurisdiction) Act 1967 from the Justices Act. Section 41A of the Justices Act has a strongly marked temporal and directory provision requiring that an order for costs be made as part of the same order as the order discharging a defendant. This differs from the terms of s 14 of the Supreme Court (Summary Jurisdiction) Act which simply speaks of the circumstances where ( not when as in s 41A of the Justices Act) a Judge makes an order dismissing the charge for any offence. 8 His Honour then noted that, under the 1992 Interim Rules of the Industrial Court Pt 25, r 5 permitted the Court to exercise its powers and discretions as to costs "at any stage of the proceedings or after the conclusion of the proceedings". His Honour noted the similarity between the interim rules and the provisions of the Supreme Court Rules Pt 52 r 5 and then stated: In the light of this position, I do not feel that Fosse is an authority which limits the Court in a way which would prevent an order for costs being made in the circumstances. 9 The defendant urged the Court to follow the approach of Fisher CJ in Meinhardt in relation to s 14 of the Summary Jurisdiction Act "and/or Industrial Relations Commission Rule 203". 10 The prosecutor submitted that it was no longer possible for an order for costs to be made in the circumstances of this case and that the Court was functus officio in relation to costs. 11 The prosecutor submitted that s 168 of the Industrial Relations Act 1996 prescribed the procedure to be applied in criminal proceedings before the Commission in Court Session. The procedure was that laid down by the Summary Jurisdiction Act in relation to criminal proceedings before the Commission in Court Session (WorkCover Authority of NSW (Inspector Ankucic) v L J Lennard Food Equipment Pty Ltd (No 2) (1999) 92 IR 111 at 112 - 13; WorkCover Authority of NSW (Inspector Dawson) v Plastachem Pty Ltd and ors (2001) 110 IR 351 at 360-361). The jurisdiction to award costs at first instance was to be found in s 14 of the Summary Jurisdiction Act. 12 It was submitted that the decision of the Full Court in Plastachem made it clear that the general jurisdiction of the Commission to award costs found in s 181(1) of the Industrial Relations Act had no application to proceedings for an offence under the Occupational Health and Safety Act which were governed by s 168 of the Industrial Relations Act. Section 168 made the Summary Jurisdiction Act apply and the Summary Jurisdiction Act dealt with the question of costs in s 14. Thus, there was no room for the operation of s 181 (1) of the Act as apparently found favour in Meinhardt. Further, it was noted that s 181 (1) of the Act was introduced with the words, "subject to the Rules of the Commission and any other Act or law". The use of those words indicated that s 14 of the Summary Jurisdiction Act would prevail in relation to the question of costs when the Commission in Court Session was exercising its criminal jurisdiction. 13 This position could not be altered by the operation of the Rules of the Commission which could only complement and not supplement a grant of power (Carbines v Powell (1925) 36 CLR 88 at 92); the Rules could not derogate from the power expressly conferred by its enabling legislation (Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (Inspector Mauger) (2000) 100 IR 157 at 171). Rule 203(1) of the Industrial Relations Commission Rules provides: "The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings". It was noted that this was identical to Pt 52A, r 5 of the Supreme Court Rules which had been considered in Harris v Schembri (unreported, Bryson J, 7 November 1995) where it was held that a costs order may be made at any time before the entry of final judgment. It was also noted that Pt 52A, r5 of the Supreme Court Rules did not apply to the Supreme Court in the exercise of its criminal jurisdiction ( Re Manley (2000) 112 A CrimR 570 at 571-572). 14 Section 14 of the Summary Jurisdiction Act was clear in its terms and in very similar terms to the provisions of s 41A(1)(a) of the Justices Act 1982. The approach to s 41A in Fosse should be applied to the operation of s 14: the result is that the Court does not have jurisdiction to make an order for costs on a day after the day of discharge when no application for costs was made on the day of discharge. DELIBERATION 15 As much of the argument turned on the approach of Smart J in Fosse, it is appropriate to commence with a consideration of that judgment. In that case Mr Fosse had been charged with conspiring to supply heroin and conspiring to import a commercial quantity of heroin but the only intended crown witness to Mr Fosse's alleged involvement positively identified Mr Fosse as not being the person alleged to be in the conspiracy. When this position became clear before the Magistrate, Mr Fosse was discharged but no application for costs was made on his behalf on that day. The Magistrate continued to hear the charges against other defendants and, some eleven days or so after being discharged and while the other defendants were being dealt with, an oral application was made for costs. The Magistrate rejected the application ultimately because he formed the view that, having signed the Minute of Order of Discharge, he was functus officio. Proceedings were then commenced in the Supreme Court seeking a declaration that the Magistrate had jurisdiction to hear and determine Mr Fosse's application for costs of the committal proceedings. 16 Smart J firstly gave consideration to the history of the costs provisions and noted (at 542B-543G): Prior to 1967, there was no provision in the Justices Act, Pt IV Div 1 relating to committal proceedings entitling the Court to make an order for costs. The old rule was that the Crown neither received nor paid costs in indictable matters. As to summary matters section 81 of the Justices Act prior to 1967 permitted the predecessor of the Local Court to make an order for costs against the defendant on conviction and an order for costs against the informant on dismissal of the complaint or information. Section 81(2) provided that the amount allowed for costs should in all cases be specified in the conviction or order. Section 41A was introduced into the Justices Act by the Costs in Criminal Cases Act 1967. That section was in the following terms: (1) The Justice or Justices making an order discharging a defendant as to the information then under enquiry may in and by such order adjudge that the informant shall pay to the Clerk of the Court to be by him paid to the defendant such costs as to such Justice or Justices seem just and reasonable. (2) The amounts so allowed for costs shall in all cases be specified in such order. … In Ex parte Mawbey; re Hogan (1970) 92 WN(NSW) 888, Jacobs JA and Taylor A-AJ (at 893) says, as to this section: … we cannot conceive that it was intended that the accused defendant shall give preliminary notice to the prosecutor of an intention to ask for costs if the prosecution be unsuccessful; nor can we conceive that there is the duty to adjourn both the discharge of the defendant from custody under Section 41 and the application for costs to a later date in order to give the absent informant an opportunity to be present. It is to be noted that both the discharge and the order for costs must be part of the same order. It would be unbelievable that in such circumstances a defendant should be delayed in his discharge from custody, and it is not an answer to say that bail might be granted in the meantime. In our view Section 41A should be treated like any other provision in enabling costs to be ordered. No special notice of intention to claim costs is necessary. It is true that there may be imprisonment in default of payment as in other cases of default in payment under the Justices Act, but we cannot from this imply an intention that notice be given for which no provision is made. In Healey v Williams, the Magistrate late on 22 March 1985 discharged the defendant, Ms Wong, pursuant to s 41(6)(a) of the Justices Act in respect of several informations he had been hearing. He indicated he would give his reasons for decision on 27 March 1985. Counsel for the defendant asked for some time to be made available on 27 March 1985 to deal with the application he would make at that time for costs. On 23 March 1985, the defendant died. On 27 March, 1985, the Magistrate gave his reasons and then heard the application for costs. On 4 April 1985, he gave his decision on costs and ordered the informant to pay Ms Wong's costs. Bowen CJ, in discussing s 41A, said (at 256; 142): Under section 41A the power of the Justice to order costs is linked and dependent upon his making an order discharging a defendant as to the information under enquiry. His power is 'in and by such order' to adjudge that the informant shall pay such costs. They are to be payable to the Clerk of the Court to be paid to the defendant. Courts and Justices are familiar with the fact that orders may have several parts. Different parts of an order may be pronounced on or may operate from a different dates. In the case of a long and complex committal proceeding such as that of Ms Wong, it may be expected that the presiding Justice would wish to hear argument upon and to give consideration to the questions whether an order for costs should be made and, if so, what should be the amount specified in the order: see Section 42A(2). It may well happen that this cannot be done on the same day as the pronouncement of the decision to discharge the defendant. But it still remains part of the process of ordering the discharge. and at (257;142): Section 41A seems to contemplate that in the case of any order (that is, an order in any circumstances) discharging a defendant as to the information under enquiry in committal proceedings, the Justice may in and by the order adjudge the payment of costs. Once the order discharging the defendant is made and the matter is still before the Justice there would seem to be nothing in the words of the section to preclude the exercise of his discretion as to costs in the event of the defendant's death, and at (258;143-144): But here the informations were no longer operative after the order on 22 March 1985 was made discharging the defendant. Death on 23 March 1985 could not cause the informations to lapse. They were no longer on foot. The administrative 'proceedings' were still on foot for consequential purposes. Did they 'abate' by reason of the death? I see no reason why they should. In my opinion the Justice still had power to deliver his reasons, to hear argument on costs, to adjourn the proceedings, to make an order for costs under Section 41A and to deliver his reasons for that order. 17 The next step in the legislative history was noted to be that in 1985 s 41A of the Justices Act was amended. In its amended form it was in the following terms: (1) The Justice or Justices - (a) when making an order discharging a defendant as to the information then under inquiry; or (b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged, may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudged that the informant shall pay to the Clerk of the Court to be paid to the defendant such costs as to the Justice or Justices seems just and reasonable. (2) the amount so allowed for costs shall in all cases be specified in the order requiring payment. 18 In dealing with the submissions made as to the operation of these provisions, Smart J said (at 546D): The informant submitted that a strong temporal element was to be found in Section 41A and he relied on the words 'when making an order discharging' and 'when committing a defendant for trial'. It was argued that these words indicated that an application for costs should be made on the day of discharge or committal or a date should then be sought to make such an application. The informant submitted that 'when' did not mean 'after' as suggested by Mr Fosse. Under Section 41A the power of a Justice is dependent in the present case upon his making an order for discharge. The phrase 'when making an order for discharge' refers to the whole process of discharge and includes not only the actual discharge but also dealing with all consequential matters of which costs would be one. Three questions arise. The first question is whether the 'administrative proceedings' can be said to be still on foot for consequential purposes when no application for costs has been made and no date has been sought to seek costs. The answer to this question must be in the negative. 'Administrative proceedings' cannot still be on foot even for consequential purposes when there is no outstanding application and no date has been sought on which to seek costs. One may never be made. The second question is whether the power to make an order for costs other than in and by the order of discharge means that a substantive application for costs can be made on a date subsequent to the order or process of discharge. I do not think that there is such a power because under s 41A the power is limited to the processes of discharge. 'When making an order discharging a defendant' . The third question is what is the purpose of allowing the order for costs to be made by other than the order discharging the defendant. This was probably inserted having regard to the earlier quoted observation in ex parte Mawbey and put beyond doubt that an order for costs may be made subsequently to the order for discharge. However, whenever the order is made it must form part of the process of discharging a defendant. Such process is not complete if there is an outstanding application for costs. If there is no application and no date has been sought on which to make an application there is nothing on foot and the process of discharge must be regarded as complete. 19 Smart J referred to the costs provisions of the Supreme Court Rules contained in Pt 52 r 5 but noted that there was no similar express provision in the Justices Act permitting the Court to exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. His Honour returned to the provisions of s 41A and stated: The provisions of s 41A are well known and it is customary to seek costs immediately upon the Justice discharging the defendant. Finality is important and in many smaller and shorter cases it would impose an undue burden as to costs and otherwise on an informant to have to return to the Court on another day to argue costs because the defendant omitted to seek an order upon being discharged. Section 41A applies to official and private informants. In this case where there has been a long committal hearing, extensive costs have been incurred and the informant is a public officer, the result seems hard. There are competing considerations in favour of the various choices. The Act has specified when an order for costs may be made. (at 547-8). 20 It was suggested in argument that the provisions of s 168 of the 1996 Act making the Summary Jurisdiction Act apply to such prosecutions might not have been operative in the same way under the 1991 Act. However, it appears that s 298 of the 1991 Act is in all relevant respects identical to the provisions of s 168 of the 1996 Act although costs in the Court were separately dealt with in the 1991 Act by s 310: s 181 of the 1996 Act deals with costs in the Commission and the Commission in Court Session. The 1996 Act however contains s 168(4) which is not found in the 1991 Act - (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceeding for an offence This provision seems to be one of emphasis only. On the analysis of the Full Court in Plastachem, the operation of s 310 of the 1991 Act alone could not bring about the result in Meinhardt and, indeed, Fisher CJ did not rely upon that provision. 21 I am unable to attach the same significance to the words "when" appearing in s 41A of the Justices Act, and "where" appearing in s 14 of the Summary Jurisdiction Act as was Fisher CJ in Meinhardt. In its normal dictionary meaning, "where" usually refers to a place, a position or a circumstance but can also mean "in a position, case, etc" (Macquarie Dictionary, 3rd ed.). The word "when", in its ordinary dictionary meaning, signifies a time. The words "where" and "when" can refer to both a circumstance and a time and these concepts may overlap. Both s 41A of the Justices Act and s 14 of the Summary Jurisdiction Act deal with the same topic, namely, the time at which and the circumstances in which an application may be made for a costs order where a matter has been disposed of in the summary jurisdiction of the relevant court. It seems to me to be unlikely that the legislature, by using the word "when" in the Justices Act, meant to convey a much more limited time frame in which to make a costs application than when the legislature used the word "where" in the Summary Jurisdiction Act to deal with the same subject matter. 22 The significant difference in Fosse is that the 1985 amendment to s 41A in sub-section 2 allowed the amount of costs to be specified "in the order requiring payment". This provision seems to pick up the concerns expressed in Mawbey and Healey and the potential injustice which might flow from a too literal application of the 1967 provision of the Justices Act. The 1985 amendment appeared to allow a discretion to order the costs together with the order of discharge or to permit the discharge of the defendant and by separate order, possibly made at a later time, deal with the application for costs. Nevertheless, as the judgment of Smart J discloses, the application for costs could not be made after the defendant was discharged. An application for costs made at the time the defendant was discharged could still be dealt with by the Court because the process of discharging the defendant had not been completed until the application for costs had been finalised. 23 The Summary Jurisdiction Act, however, appears to reflect the 1967 position in the Justices Act where the amount for costs was required to be "in all cases" as "specified in such order" being a reference to the order of discharge. Thus, s 14 of the Summary Jurisdiction Act operates such, that where a Judge makes an order dismissing the charge, the Judge may, in and by the conviction or order, order (in this circumstance) the prosecutor to pay to the defendant such costs as to the Judge seems just and reasonable. That amount so ordered to be paid for costs "shall in all cases be specified in the conviction or order". (This approach was accepted by the Court of Criminal Appeal in Caltex Refining Co Pty Ltd v Maritime Service Board of New South Wales (1995) 36 NSWLR 552 at 564D in relation to the same provision appearing as s 52 of the Land and Environment Court Act, 1979). They are the same words as found in s 41A(2) of the Justices Act 1902 prior to the 1985 amendment. The distinction may nevertheless be of little moment in the present case because under the approach in either the 1967 or the 1985 amendments to the Justices Act the application for costs had to be made at the time the court was in the process of discharging the defendant. 24 Because of the similarity of the provisions and the jurisdiction being exercised, I am much assisted in the present task by the judgment of Smart J in Fosse. Quite apart from that assistance, by reference to what is laid down by s 14 of the Summary Jurisdiction Act, I am of the view that when an order dismissing a charge for any offence is made pursuant to s 14, the amount ordered to be paid for costs is to be specified in the conviction or order. On the face of it, these words require both the discharge and the order for costs to be in the same order. That was not done nor was it sought to be done when the order was announced in open Court and the reasons for judgment published. Even allowing for some flexibility as indicated in the judgments in Mawbey and Healey (which nevertheless on the wording of s 14(2) as it presently stands might be doubted), when the order was announced it may have been available for that order to be amended on the day by either making a specific costs order or further reserving the question of costs (see also Caltex Refining Co Pty Ltd. When those matters were not raised at that time, it appears that the defendant was discharged and the application for costs was then made at a time when the Court's jurisdiction was spent. In this respect, allowing for the differences in construction I have referred to, the defendant in the present case was in no different position to the defendant Fosse. 25 The conclusion referred to in the previous paragraph depends upon there being an effective discharge on 3 December 2002 when the orders were announced in open Court and the reasons for judgment published. The submissions for the parties appear to have either assumed that an effective discharge had taken place or have not addressed the issue. It is significant that in Fosse the Magistrate had signed the minute of order of discharge and therefore regarded himself as functus officio. The discharge in that form was an essential step in bringing about the result but a costs order could not be entertained or made after the defendant had been discharged. 26 The question then arises as to when, in proceedings before the Commission in Court Session under the Occupational Health and Safety Act, can it be said that an order discharging a defendant is effective? In terms, the provisions of the Act and the rules do not lay down the circumstances when an order of this type is effective. The usual practice of the Court is to issue judgments including reasons and to specify the orders made at the conclusion of the judgment but the judgments and orders are not signed. Section 390 of the Industrial Relations Act 1996 seems to contemplate a process whereby an order made may be taken out on application to the Registrar but goes no further. In those circumstances it may well be that the provisions of r 89 apply and the practice of the Supreme Court is to be adopted. Under Supreme Court Rules Pt 40 r 3(1), a judgment takes effect: (a) where it is given in court - as at the date on which it is given; or (b) otherwise - as of the date of entry. Under r 3, subject to sub-rule 1, an order is to take effect as at the date on which it is made. It appears well accepted that apart from the power conferred by specific rules, the Supreme Court ordinarily has no power to set aside a final judgment which has been passed and entered ( DJL v Central Authority (2000) 201 CLR 226 at 245). A judgment, depending on the circumstances of its delivery, will be effective if it is given in court on the day it is made and, if given otherwise than in court (for example, where default judgment is entered), will take effect on the formal entry of the judgment. Applying this approach to the judgments of the Commission in Court Session the order discharging the defendant in the present proceedings took effect on 3 December 2002 when the order was announced in open Court and the written reasons including the order were published on that day. 27 In Fosse, Smart J noted that the result of the application of the Justices Act in that case "seems hard": the same might be said about the result in the present proceedings. I am, however, of the view that s 14 of the Summary Jurisdiction Act has the effect contended for by the prosecutor and that it is now too late for the defendant to seek an order for costs. 28 On 7 July 2003, the Summary Jurisdiction Act was repealed by the Criminal Procedures Amendment (Justices and Local Courts) Act 2001, No 119 and the criminal jurisdiction of the Commission is now regulated by the Criminal Procedure Act. Following the presentation of oral argument the parties were invited to address the significance, if any, of the amendment Act. Briefly stated, the defendant submitted that costs were now governed by s 253 of the Criminal Procedure Act 1986 and as a consequence an order for costs could now be made by specifying that those costs were to be as agreed by the parties or in the absence of agreement, in accordance with the Industrial Relation Commission Rules. In this way it was said that the costs could be dealt with under Rule 204 or Rule 205 of the Industrial Commission Rules dealing with assessed costs. 29 The prosecutor accepted that from 7 July 2003, s 253 of the Criminal Procedure Act is the relevant provision under which application for costs may be made following a conviction or order for dismissal in proceedings under the Occupational Health and Safety Act. It was also accepted that being procedural in nature s 253 applied to the present proceedings following the repeal of the Summary Jurisdiction Act. It was submitted however that the position had not changed because both the Summary Jurisdiction Act in s 14(1) and the Criminal Procedure Act in s 253(1) were to similar effect. Under the Criminal Procedure Act the costs orders are to be made "in and by a conviction or order". 30 This issue is determined by the transition provisions in Schedule 2. Under "General saving relating to proceedings" the following is provided: General saving relating to proceedings (1) If any proceedings commenced, or any other thing commenced or done, under a repealed provision still having effect or not completed immediately before the repeal could have been done or commenced under the corresponding provision of the amended Criminal Procedure Act or the amended Local Court Act: (a) the thing done continues to have effect, or (b) the proceedings or other thing commenced may be completed (2) A decision, order or sentence made by a Local Court, or any other person or body, that is completed under subclause (1) may be enforced as if the provisions of the old Act and the Justices Act 1902 and any repealed instruments under those Acts were still in force. (3) Any act, matter or thing done or omitted to be done under a repealed provision or renumbered provision, and having force immediately before the commencement of a provision of an Act that replaces the repealed provision or renumbers the provision, is on that commencement taken to be done under the corresponding provision of the amended Criminal Procedure Act or Local Courts Act (as the case requires). In my view the proceedings have been completed under the Summary Jurisdiction Act in December 2002. There is nothing left undone in the proceedings which may be completed under the General Savings Provision of Schedule 2. 31 The defendant' application for costs is dismissed. oo00oo 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.