Industrial Relations Commission of New South Wales in Court Session CITATION : Abigroup Contractors v Inspector Maltby (No 2) [2002] NSWIRComm 317 FIRST APPELLANT Abigroup Contractors Pty Limited SECOND APELLANT PARTIES : Luis Bustamante RESPONDENTS WorkCover Authority of New South Wales (Insp Maltby) WorkCover Authority of New South Wales (Insp Mansell) FILE NUMBER: IRC 4804 of 2002 of 2002 CORAM: Walton J Vice-President; Marks J; Boland J CATCHWORDS : Appeal - Occupational health and safety - Appeal against interlocutory judgment and orders granting leave to prosecutor to adduce further evidence - Leave to appeal refused - Appeal dismissed - Held costs of appeal payable by appellant. HEARING DATES: 09/13/2002 DATE OF JUDGMENT: 11/29/2002 APPELLANTS Mr B D Hodgkinson SC SOLICITORS Clayton Utz LEGAL REPRESENTATIVES: RESPONDENTS The Hon J W Shaw QC with Mr P M Skinner of counsel SOLICITORS Moray & Agnew JUDGMENT: - 2 - INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J Vice President Marks J Boland J Friday 29 November 2002 Matter No IRC 4804 of 2002 ABIGROUP CONTRACTORS & ANOR v INSPECTOR MALTBY & ANOR (No 2) Application by Abigroup Contractors Pty Ltd & Anor for leave to appeal and appeal against a decision of Justice Kavanagh on 2.8.92 in matters no IRC99/5432, 5433, 5434, 5436, 5438, 5502, 5003 JUDGMENT RE COSTS 1 In a decision given on 26 September 2002 we refused leave to appeal and dismissed an appeal brought by the appellants, Abigroup Contractors and Luis Bustamante, against an interlocutory judgment and orders of Kavanagh J. We reserved costs. 2 The successful respondents to the appeal sought an order for costs. This was resisted by the appellants who, in written submissions, asserted that each party should bear their own costs associated with the appeal. 3 In support of the appellants' contentions Mr B D Hodgkinson SC said, in part: "It would be inappropriate to exercise the discretion conferred by s 181 of the Industrial Relations Act in occupational health and safety appeals without having regard to the scheme created by the provisions of the Act. In our respectful submission the consequence of such a consideration is that the Commission would not order costs as a matter of course in occupational health and safety appeals. There are sound policy reasons for allowing the appeal process, even where it involves applications for leave to appeal, to be unfetted (sic) by considerations such as costs. Defendants should not have the capacity to exercise legitimate rights inhibited by the possibility that in so doing they may become subject to a costs order. The capacity to pursue rights in the orderly discharge of the criminal process, without penalty, embodies the concept of justice that underlies the criminal justice system. It is not appropriate that the pursuit of those rights, on behalf of the defendant, should be subject to the capacity to meet a cost order." 4 Nothing has been put to the Court by the appellants concerning their capacity to meet a costs order. In any event, the converse of the submission made by Mr Hodgkinson is that an appellant who initiates an appeal, particularly from an interlocutory order, must run the risk of an adverse costs order if the appeal does not succeed (particularly where leave is refused) and as such this result will act as a means of discouraging appeals that have little prospect of success. 5 Having regard to the totality of the proceedings and the circumstances of the appeal, which are referred to in our earlier judgment, we are not persuaded that any course other than the usual course should apply. Accordingly, the appellants shall pay the respondents' costs of the appeal such costs to be assessed by the Court in the absence of agreement. ________________________________- 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.