Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Clark) v Raymond Jabboury [2003] NSWIRComm 409 PROSECUTION WorkCover Authority of New South Wales (Inspector Clark) PARTIES : DEFENDANT Raymond John Jabboury FILE NUMBER: IRC 3392 & 3393 of 1998 and 5799 - 5803 of 1999 CORAM: Boland J CATCHWORDS : Costs - Application by defendant for costs arising out of discontinued matters - Original prosecution under section 19 of Occupational Health and Safety Act - Matters discontinued after defendant found not to be an employee - Cost orders made LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 WorkCover Authority (Insp. Clark) v Raymond Jabboury (No.2) [2002] NSWIRComm 70 HEARING DATES: 02/28/2003 DATE OF JUDGMENT: 11/24/2003 PROSECUTION Mr J J Millar of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Solicitor: Ms J Underwood Deacons JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 24 November 2003 Matter No IRC 3392 and 3393 of 1998 WORKCOVER AUTHORITY OF NSW (INSP CLARK) v RAYMOND JOHN JABBOURY Prosecution under s 19(a) of the Occupational Health Safety Act 1983 Matter No IRC 5799 - 5803 of 1999 WORKCOVER AUTHORITY OF NSW (INSP CLARK) v RAYMOND JOHN JABBOURY Prosecution under s 50(1) & s 49 (4) of the Occupational Health Safety Act 1983 JUDGMENT [2003] NSWIRComm 409 1 In WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 the Court found the defendant guilty of an offence under s 16(2) of the Occupational Health and Safety Act 1983. In WorkCover Authority (Insp. Clark) v Raymond Jabboury (No.2) [2002] NSWIRComm 70 the Court dealt with the question of penalty and the defendant was fined an amount of $16,000 with a moiety to the prosecutor. 2 Originally the defendant had been charged with an offence under s 19 of the Act. In charging the defendant the prosecutor relied in part on a record of interview with the defendant where he answered in relation to a question as to the capacity in which he was employed, that he was employed as a project manager. It was subsequently pointed out by the defendant's solicitors that he was not an employee. Consequently, the s 19 proceedings were discontinued on the basis that the costs arising out of those proceedings would be discontinued pending determination of a new charge that had been laid against the defendant under s 50 of the Act. 3 The charge under s 50 was laid on the basis that the prosecutor believed the defendant was a person concerned in the management of a corporate defendant that had been charged under s 16(1) of the Act (Ledonne Constructions Pty Ltd). This belief was derived from the fact that the defendant had described himself as a "project manager". Subsequently it was discovered by the prosecutor that the defendant was a self-employed person and consequently the proceedings under s 50 were discontinued with the question of costs being reserved and a new charge being laid under s 16(2) of the Act. It was in relation to that charge the defendant was found guilty and fined $16,000. 4 Against this background there are three matters to be determined by the Court: 1. The quantum of costs claimed by the prosecutor in relation to the charge under s 16(2). 2. The defendant's claim for costs in relation to the proceedings under s 19 which were discontinued. 3. The defendant's claim for costs in relation the proceedings under s 50 which were discontinued. 5 In relation to the first issue the prosecutor tendered an itemised bill of costs that was challenged by the defendant. The bill was referred to the Industrial Registrar for assessment. I had been under the impression that the parties were to advise me in relation to the outcome of that assessment before I proceeded to finalise judgment on all matters. Apparently, I have misunderstood the parties' position in that respect. I note that the issue of costs in relation to the charge under s 16(2) is still unresolved and remains before the Registrar. 6 In relation to the second issue, a record of interview made on 3 September 1996 shows the following exchange: Q: Who are you employed by? A: Ledonne Constructions Pty Limited. Q: Does Ledonne Constructions Pty Limited pay your wages? A: Yes. Q: In what capacity are you employed? A: Project Manager. 7 In framing the charges in matter nos IRC 3392 and 3393 of 1998 the prosecutor was entitled to rely on the answers given by Mr Jabboury in his record of interview. However, on being informed that the defendant was not an employee, thereby leading to a discontinuance of the charges under s 19(a) of the Act, it was incumbent on the prosecutor to clarify the defendant's status as "project manager." It would appear that, in framing new charges under s 50(1) of the Act, the prosecutor simply assumed the defendant was a person concerned in the management of Ledonne Constructions Pty Limited rather than making sufficient inquiry as to whether or not that was the case. 8 I consider that the defendant shall pay the prosecutor's costs in relation to the s 19(a) proceedings and the prosecutor shall pay the defendant's costs in relation to the s 50(1) proceedings. Orders 9 I make the following orders: Matter Nos IRC 3392 and 3393 of 1998 1. The defendant shall pay the prosecutor's costs in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter Nos IRC 5799 - 5803 of 1999 1. The prosecutor shall pay the defendant's costs in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. 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