Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244 APPELLANT: Workcover Authority of New South Wales (Inspector Dawson) 1st RESPONDENT: Plastachem Pty Ltd 2nd RESPONDENT Shamrock Holdings Pty Ltd 3rd RESPONDENT: PARTIES : Alan Winston Rowe 4th RESPONDENT: Christine Annette Rowe 5th RESPONDENT: Elizabeth Mary Rowe FILE NUMBER: IRC 147 151 152 153 and 154 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J Costs - indemnity costs - proceedings for offences under Occupational Health and Safety Act 1983 - prosecutor sought to withdraw proceedings - trial judge purported to grant leave to withdraw - whether power to grant leave to withdraw the proceedings - whether proceedings dismissed - whether power to award costs following dismissal of proceedings - trial judge awarded costs in favour of defendants on an indemnity basis - appeal against decision to award indemnity costs - principles relating to exercise of discretion to award costs - ordinarily just and reasonable to award costs in favour of defendant against whom proceedings have been dismissed - must be some special or unusual features to justify award of indemnity costs - award of indemnity costs not appropriate in this case - appeal upheld - no order as to costs of appeal. CATCHWORDS : Appeal - appeal from a decision awarding costs following the dismissal of summary criminal proceedings - whether jurisdiction to bring appeal from costs order in summary criminal proceedings - appeal brought pursuant to Criminal Appeal Act 1912 - nature of appeal - appeal by way of rehearing. Criminal Appeal Act 1912 s5AA s17 Industrial Relations Act 1996 s168 s181 s196 LEGISLATION CITED : Industrial Relations Commission Rules 1996 r138 r139 r222 r223 Occupational Health and Safety Act 1983 s15 s16 s17 s19 s47 Supreme Court (Summary Jurisdiction) Act 1967 s14(1) Achutan v Coates (1986) 6 NSWLR 472 Anderson v Boner [1993] 52 IR 114 Boner v Anderson (No 2) [1993] 50 IR 470 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225 Degman Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 Fletcher Construction Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Frost v Speaker of the Legislative Assembly of New South Wales [2001] NSWIRComm 14 Latoudis v Casey (1990) 170 CLR 534 CASES CITED : Norton v Morphitt (1995) 83 A Crim R 90 Packer v Meagher [1984] 3 NSWLR 486 Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 157 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 Tuholi Ltd v Caltex Australia Petroleum Ltd (2001) 103 IR 329 Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, Fisher P, Marks and Schmidt JJ, Matter No. CT95/1237, 1238 and 1239, 5 March 1998) WorkCover Authority of New South Wales (Inspector Ankucic) v J L Lennard Food Equipment Pty Ltd (No 2) (1999) 92 IR 111 HEARING DATES: 08/03/2000 DATE OF JUDGMENT: 10/16/2001 APPELLANT: The Hon J W Shaw QC with Ms L McManus of counsel SOLICITOR: Legal Services Branch WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: RESPONDENTS: Mr A Radojev of counsel SOLICITOR: Jack Rigg Solicitors JUDGMENT: 13 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Tuesday, 16 October 2001 Matter No IRC 147 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAWSON) v PLASTACHEM PTY LIMITED Appeal from a decision of Justice Maidment given on 24 December 1999 in Matters Nos IRC 783, 784, 785, 786, 787 and 788 of 1997. Matter No IRC 151 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAWSON) v SHAMROCK HOLDINGS PTY LTD Appeal from a decision of Justice Maidment given on 24 December 1999 in Matters Nos IRC 789 and 790 of 1997. Matter No IRC 152 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAWSON) v ALAN WINSTON ROWE Appeal from a decision of Justice Maidment given on 24 December 1999 in Matters Nos IRC 849, 850, 853, 854, 1997 and 1998 of 1997. Matter No IRC 153 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAWSON) v CHRISTINE ANNETTE ROWE Appeal from a decision of Justice Maidment given on 24 December 1999 in Matters Nos IRC 845, 846, 851, 852, 1999, 2000 and 2001 of 1997. Matter No IRC 154 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR DAWSON) v ELIZABETH MARY ROWE Appeal from a decision of Justice Maidment given on 24 December 1999 in Matters Nos IRC 847, 848, 855, 856, 2002 and 2003 of 1997. JUDGMENT OF THE COURT [2001] NSWIRComm 244 1 This is an appeal from a judgment of Maidment J delivered on 24 December 1999 in which his Honour ordered the WorkCover Authority of New South Wales ("the appellant") to pay the costs of Plastachem Pty Ltd, Shamrock Holdings Pty Ltd, Christine Annette Rowe, Elizabeth Mary Rowe and Alan Winston Rowe ("the respondents"), on an indemnity basis, incurred as the result of prosecutions brought by the appellant alleging various breaches of the Occupational Health and Safety Act 1983 (the OH&S Act). The issue is whether the costs so ordered should have been on an indemnity basis rather than the usual party/party basis. Factual background 2 The prosecutions arose out of an incident on 18 February 1995 which occurred during the refurbishment of Shop 3 of Grafton Mall, known as Fish-de-Lish. The shop was to open as a retail fish shop shortly after 18 February 1995. As a part of the refurbishment an imitation wooden pier was being installed. The pier was to be constructed from various materials, including four large ironbark timber poles. The poles were being installed by a Mr Marlon Scott DuBont. 3 Mr DuBont had installed one of the poles when Mr and Mrs Schmidt attended the shop with their three-year-old daughter Briana. Mr and Mrs Schmidt had been invited to the opening of the store and had stopped by to see how the refurbishment was progressing. At Mr DuBont's request Mr Schmidt assisted in the installation of the second timber pole. Having installed the second timber pole, preparation began for the installation of the third. While this was being done, one of the two installed poles fell, fatally injuring three-year old Briana Bonde Schmidt. A Coroner's inquest was commenced, with findings being delivered on 18 April 1996. 4 On 18 February 1997 a number of prosecutions were commenced by the appellant. A single charge was issued against Mr DuBont under s19(1)(a) of the OH&S Act. On 16 June 1997 he pleaded guilty before the Chief Industrial Magistrate and was fined $1000. A further series of charges, eventually comprising a total of 27 summonses, were commenced against the respondents alleging breaches of the OH&S Act. The matters were listed for hearing in November 1997. However, these dates were vacated due to the unavailability of the trial judge. The matter then came before another judge of the Court, Cahill J (then Vice-President), for mention. 5 The appellant wrote to the respondents on 25 May 1998 indicating that the appellant would be seeking leave to withdraw 21 of the charges. The matter was listed before Maidment J on 14 December 1998 at which time leave was given to withdraw 21 of the charges issued by the appellant. The 21 summonses withdrawn comprised all 19 summonses issued against the natural persons and one summons issued against each of the corporate entities. The remaining six charges were set down for hearing in June 1999. 6 On 15 December 1998, the Associate to Maidment J wrote to the respondents raising with them the question of costs in the proceedings that had been withdrawn. Neither party had raised the question of costs on 14 December 1998. The hearing of the remaining matters commenced on 15 June 1999. Following four days of hearing the proceedings were not complete. The proceedings were set for a further three-day hearing to commence on 23 November 1999. 7 On 27 October 1999 the appellant notified the Court and the remaining respondents that it intended to seek leave to withdraw the remaining 6 charges. The matter was then listed to deal with the question of costs on 13 December 1999 at which time counsel for the respondents made an application for indemnity costs. 8 Judgment was delivered on 24 December 1999. In his judgment, his Honour set out the history of the proceedings, noting the refusal of the respondents to accept the validity of many of the charges. The respondents claimed that Mr DuBont was not an employee of any of them. The dispute over this purported employment relationship and the way in which his Honour saw that evidence on this aspect of the appellant's case was essentially what grounded his Honour's decision to award indemnity costs. 9 His Honour considered that "save for some incidental material of little weight the only evidence supporting the proposition that Mr DuBont had been an employee of Plastachem is his own word which turned out to be worthless." His Honour referred to some of the evidence and concluded "alarm bells should have been ringing in WCA as to the employment status of Mr DuBont". He concluded that there was a "total absence of any documentation of an employment relationship" and indicated that further doubts should have been raised by comments made when the matter was mentioned before Cahill V-P in February 1998. 10 Having set out some transcript references relating to the forwarding of the relevant material to the appellant, his Honour stated as follows: In my view the material forwarded to WCA, being MFI 8 & 9, coupled with the consistent position of the defendants as disclosed both by the transcript and by their records of interview and supported by the statements of Messrs Scowcroft and Faircloth, should have by 14 December 1998, put WCA on notice of the probability that Mr DuBont was not acting as an employee of Plastachem in respect of the shop. I do not hold on the material before me that the defendants ought to have forwarded more of their material to WCA. … The reality is that at no stage during the prosecutor's case was compelling evidence brought forward as to the existence of the requisite employer employee relationship. 11 His Honour referred to "the astonishing circumstance of 27 summonses being filed ... arising from the same accident" and noted with "bewilderment" that 19 of the prosecutions were launched against the natural respondents. His Honour stated he found it "difficult to imagine any justification for the institution of 27 sets of proceedings" and considered that "the fact that WCA, upon review, withdrew 21 of the summonses in 1998, including each against the [natural respondents], might well be said to suggest that those matters should not have been initiated in the first place". His Honour considered that the matters raised by the respondents, concerning the employment standing of Mr DuBont were ignored. 12 His Honour expressed his conclusions in the following terms: The unfortunate reality is that the failure by WCA to ascertain the truth of the situation as reported by the Rowe family has resulted in Mr DuBont escaping very lightly from the results of his gross negligence and in the defendants herein and also WCA being involved in lengthy and expensive proceedings as to which, in my view, WCA should have had serious doubts as to the likelihood of success from the outset. That doubt should not only have been maintained, it should have increased from February 1998 onwards. At the close of the final day of the hearing my impression was that the evidence thus far presented was such that a prima facie case had not been made out in respect of Plastachem and, as to Shamrock Holdings, at the very least a no case to answer submission would succeed. I accept the submission of Mr Radojev that the appropriate inference to draw from the withdrawal of the remaining matters is that WCA had reached the view that it would not be able to make out a prima facie case. The test enunciated by Hill J in Boner is clearly met. Had these matters been more thoroughly investigated it is unlikely that they would have been commenced. The material available in April 1995 cast such doubt upon the status of Mr DuBont that further inquiry was then required. The assertions by Mr and Mrs Rowe at the mention before Cahill V-P and the subsequent provision of a sample of the documents should have, but did not, lead to further investigations. The further disclosures at the mention in December 1998 also should have, but did not, lead to further investigations. I award costs on a solicitor client basis, to do otherwise would be inequitable. Costs are so awarded in order that the defendants not to be out of pocket in circumstances in which the prosecutions are based upon such flawed investigations and in which WCA has failed, despite ample opportunity, to initiate fresh inquiries in circumstances in which the indications were that further investigation was necessary. After all WCA had to prove its case beyond reasonable doubt yet it chose not to investigate matters which cast doubt upon its case and which the prosecutor agreed, when presented with a sample of the supporting documentation, would have caused a chain of enquiry had they been brought to his attention. It would be unreasonable and unfair for the defendants to be out of pocket. 13 It is not clear whether the trial judge awarded costs on an indemnity basis or on a solicitor-client basis in relation to all 27 summonses issued against the respondents or only in relation to the remaining six summonses which went to trial. Appellant's submissions 14 The Hon J W Shaw QC, who appeared with Ms L M McManus of counsel for the appellant, submitted that the appeal in this matter, by virtue of s196(1) and (2) of the Industrial Relations Act 1996 (the IR Act) and s5AA of the Criminal Appeal Act 1912, was brought as of right and as such leave to appeal was not required. In the alternative, it was put that should leave to appeal be required leave should be granted in the general discretion of the Court as the appeal raised important questions as to the awarding of costs in prosecutions under the OH&S Act. 15 In relation to the interaction of the IR Act and the Criminal Appeal Act, Mr Shaw submitted the exclusion of "any provision" of the Criminal Appeal Act relating to costs by s196(4) of the IR Act was a reference to s17 of the Criminal Appeal Act and did not impinge on the jurisdiction conferred by s5AA(1)(b) of that Act. That is, reference to costs in s196(4) of the IR Act was a reference to costs being awarded "on the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto". It was submitted that that construction must be correct as to construe s196(4) in any other manner would result in s5AA(1)(b) of the Criminal Appeal Act being overtaken by s17 of that Act, leaving no jurisdiction for the Court to hear and determine an appeal against a costs order. Such a construction, it was submitted, would be an absurdity. Therefore, the relevant provision of the Criminal Appeal Act for the purposes of this appeal was s5AA(1)(b), providing as it does for an appeal to be brought as of right to any person "against whom an order to pay any costs is made". 16 At the commencement of oral submissions, Mr Shaw indicated that the appellant conceded it was proper for costs to be awarded in favour of the respondents on a party/party basis. In relation to the appropriate basis for the award of costs, Mr Shaw relied on his written submissions, expanding on them in his oral submissions. Those submissions were as follows: 1. The documents marked for identification as MFI8 and 9, clearly relied on by his Honour in coming to a decision to award indemnity costs, were materials not in evidence and as such were not open for his Honour to rely upon. 2. His Honour was incorrect in concluding there was no compelling evidence brought forward as to the existence of an employer/employee relationship. Further, the appellant was bound to explore every reasonable avenue for prosecution of those who might have been responsible for a breach of the occupational health and safety laws. If there was evidence which the prosecuting authority could reasonably put before the Court then it should not be penalised for doing so. 3. The principles set out in Anderson v Boner [1993] 52 IR 114 as to the basis on which an order for indemnity costs may be made were correct, except in so far as the discretion vested in the Court was to be considered "absolute". In that regard, the Court was constrained in the manner in which it exercised its discretion so that the discretion must be exercised judicially. It would be incongruous to say that a discretion was absolute and yet the discretion must be exercised in any particular manner. 4. It was a rare case that would warrant indemnity costs being ordered in a criminal matter. Courts have ordered indemnity costs on a number of bases, such as where a case was brought that should never have been brought: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 where the conduct of one of the parties was deserving of criticism; Packer v Meagher [1984] 3 NSWLR 486 where the action was conducted for an ulterior motive or collateral purpose; Degman Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354 being a case which was vexatious, oppressive or a misuse of process; and Rosniak v Government Insurance Office (1997) 41 NSWLR 608. The approach adopted by the Full Bench in Anderson v Boner was correct. One searches in vain in the proceedings presently under review for some "unusual feature of an unmeritorious or improper … nature": Anderson v Boner (at 118). 5. It was in the discretion of a prosecutor as to whether or not a prosecution should be withdrawn. That may be done for a variety of reasons. One cannot draw from the fact that prosecutions were withdrawn that the prosecutor was not able to make out a "prima facie case", as his Honour did. 6. In relying on the number of charges brought against the respondents, his Honour took into account an irrelevant consideration. Respondent's submissions 17 Mr A Radojev of counsel, who appeared for the respondents, submitted: 1. Various representations were made to the appellant early in 1998. It would appear that those representations were ignored or forgotten. If those representations had been followed up it would have been clear that the respondents were at no time employers in the manner required for the various prosecutions under the OH&S Act. 2. As a result of the failure by the appellants, the respondents were put to considerable trouble and expense over a considerable period of time, including four days of hearing. 18 In his written submissions, Mr Radojev relied upon s181 of the IR Act as providing power to order costs in this case. He submitted there was a broad discretion conferred by that section and no appeal should lie from an exercise of that discretion if, when properly considered, it can be shown to have been exercised judicially and not in a capricious manner. 19 When considering the exercise of his Honour's discretion, the nature of the proceedings at first instance, being criminal prosecutions carrying the potential of heavy sanctions, should not be ignored. Mr Radojev submitted that, in coming to the decision to award indemnity costs, his Honour weighed the competing arguments, did not take into account any irrelevant matters and did not act capriciously. It was submitted the judgment clearly set out reasons for the exercise of the discretion and was not properly the subject of appeal. 20 During the course of argument, the Court raised with counsel for the respondents doubts as to the appropriateness of their reliance on s181 of the IR Act. In response, counsel submitted that the discretion to award costs was essentially the same in the Supreme Court, the Land and Environment Court, and indeed in many other common law jurisdictions. Regardless of the statutory scheme, the power was essentially a broad discretionary power, but one which was to be exercised judicially. Further written submissions 21 During the course of the parties' oral submissions, the Court raised questions as to the interaction and operation of the IR Act, the Supreme Court (Summary Jurisdiction) Act 1967 and the Criminal Appeal Act 1912 in the context of an appeal brought under s5AA from a costs order at first instance. In an attempt to ensure that those important questions of statutory construction could be properly addressed, the parties were given leave to file further written submissions. 22 The appellant's further written submissions were in the following terms: POWER TO AWARD COSTS 1. For criminal proceedings before the Industrial Relations Commission in Court Session s168 of the Industrial Relations Act 1996 (IR Act) applies. 2. Therefore the Supreme Court (Summary Jurisdiction) Act 1967 applies: s168(2) IR Act; 3. Costs may be awarded where the charge is dismissed: s14 Supreme Court (Summary Jurisdiction) Act 1967; 4. Section 181 IR Act is not applicable to criminal proceedings as the provisions of the Supreme Court (Summary Jurisdiction) Act prevail over any other provisions of Part 5 of the IR Act for the purposes of proceedings for an offence: s168(4) IR Act; 5. There is no power to award costs where a summons has been withdrawn DISMISSAL OF SUMMONSES 6. A criminal prosecution may be discontinued pursuant to r223 and Pt19 of the Industrial Relations Commission Rules (IR Rules) prior to the commencement of the trial, with the leave of the Commission: Workcover Authority of NSW (Inspector Ankucic) v J L Lennard Foods Equipment Pty Ltd (No2) (1999) 92 IR 111. 7. On 14 December 1998 Maidment J granted leave to withdraw 21 summonses. 8. As the 21 summonses had been withdrawn and not dismissed there was no power to award costs; 9. A hearing commenced in relation to the 5 remaining summonses. The prosecution advised of its intention to discontinue/withdraw the 5 summonses; 10. It would appear that the prosecution did not formally seek leave to withdraw the summonses and that Maidment J did not formally dispose of these summonses. 11. As the hearing had commenced, leave could not be given to discontinue the summonses pursuant to r223 and Pt 19 of the IRC Rules; 12. The summonses should have been dismissed: r223 IRC Rules 13. The Commission may have awarded such costs as seemed just and reasonable: s14(1) Supreme Court (Summary Jurisdiction) Act 1967 14. The amount of the costs should have been specified in the order s14(3) of the Supreme Court (Summary Jurisdiction) Act 1967. NATURE OF APPEAL 15. The Criminal Appeal Act 1912 applied to criminal appeals and the other provisions of Part 7 (apart from s196) are inapplicable: s196 IR Act 16. However in relation to costs both the Criminal Appeal Act and Part 7 of the IR Act appear to be excluded: s196(4). This would mean that there is no procedure specified for an appeal against costs. Therefore it is submitted that the exemption in s196(4) refers to the awarding of costs on appeal (which would exclude s17 of the Criminal Appeal Act) rather than criminal appeals in relation to costs. 17. Accordingly, s5AA of the Criminal Appeal Act applies to appeals in relation to costs 18. An appeal in relation to costs is in the nature of a rehearing on the evidence before the trial judge: s5AA(3) Criminal Appeal Act 19. The Appellate Court in proceedings before it on appeal may confirm the determination of the trial judge or may vacate the determination of the trial judge and make any determination that the trail judge could have made on the evidence heard on appeal: s5AA (4) Criminal Appeal Act. The approach on appeal 23 The appeal presently under consideration, being an appeal brought from a decision at first instance of the Commission in Court Session in proceedings for an offence under the OH&S Act, must be brought (as it was in this case) pursuant to s196 of the IR Act. Section 196 is in the following terms: 196. Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 24 Section 196(2) imports the provisions of the Criminal Appeal Act for the purposes of such an appeal. The relevant provision of that Act for present purposes is s5AA, which is in the following terms: 5AA. Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction (1) A person: (a) convicted of an offence, or (b) against whom an order to pay any costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (2) For the purpose of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (3) Any such appeal is to be by way of rehearing on the evidence ("the original evidence"), if any, given in the proceedings before the Supreme Court in its summary jurisdiction. (3A) The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of rehearing on the original evidence and on any fresh, additional or substituted evidence so adduced. (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. (5) Section 7 (4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5 (1). (6) Provisions shall be made by rules of court for detaining an appellant on an appeal under subsection (1) who has been sentenced to imprisonment until the appeal has been determined, or for ordering the appellant into any former custody. 25 It should be noted that s5AA of the Criminal Appeal Act has since been amended to omit sub-ss(3) and (3A): see Courts Legislation Amendment Act 2000, Sch3. However, that amendment does not apply to an appeal against a conviction or costs order that was made before the commencement of the amendment on 25 September 2000. 26 The proper approach to be adopted in appeals brought pursuant to s196 of the IR Act and s5AA of the Criminal Appeal Act is well settled: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 38-39; Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 at 70-71; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75-77; and Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 338. 27 That approach provides that the appeal in this matter is brought as of right and leave to appeal is not required: s5AA(1) of the Criminal Appeal Act and s196 of the IR Act. The appellant need not demonstrate error on the part of the trial judge. The appeal comes before the Full Bench by way of rehearing, although it should be noted that the Full Bench does not undertake a hearing de novo. The Court must consider afresh the ultimate issue and independently determine the matter on the evidence at first instance. Having heard the matter the Court "may confirm the determination made by the [Court] in its summary jurisdiction or may order that the determination made by the [Court] in its summary jurisdiction be vacated and make any determination that the [Court] in its summary jurisdiction could have made on the evidence heard": see s5AA(4) of the Criminal Appeal Act. 28 The approach outlined above has been developed in appeals brought under s5AA(1)(a) of the Criminal Appeal Act, being appeals from a "conviction [for] an offence". However, we consider that the approach which has been adopted in appeals brought under s5AA(1)(a) is equally applicable to an appeal brought under s5AA(1)(b). It is for the Full Bench to consider the question of costs afresh in light of the evidence at first instance. However, we note that consideration of the manner in which the trial judge approached the questions to be determined may provide a useful analytic device when approaching the matter at appellate level, particularly in circumstances where the parties to the appeal argued there had been error by the trial judge, as the parties did in these proceedings: see Capral at 39 and Fletcher Construction at 81. 29 One additional matter requiring consideration in this case concerns s196(4) of the IR Act. That section provides that any provision of the Criminal Appeal Act relating to costs does not apply to an appeal brought under s196. It is sufficient here to observe that we accept the submission of Mr Shaw that the exception in s196(4) refers only to the awarding of costs as to the appeal itself, rather than to the challenged costs of the trial. If s196(4) were read to refer to a costs order made at first instance then both the provisions of the Criminal Appeal Act and Pt7 of Ch4 of the IR Act would have no operation in relation to such an order. If this interpretation were adopted there would be no provision to appeal against a costs order made in criminal proceedings before the Commission in Court Session. 30 We consider that this would be a highly unlikely result. Had the legislature intended to preclude an appeal from an order awarding costs in summary criminal proceedings brought before the Commission in Court Session, that result would have been achieved by plain words. A legislative provision should not be construed as denying any right of appeal unless that intention is expressly stated or necessarily implied: see Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160. This is not the situation here. Accordingly, we consider that the only available interpretation of s196(4) of the IR Act is that it refers only to costs on appeal. That conclusion is consistent with the scheme created and contemplated by s196 which, subject to the exception in the subsection, incorporates the Criminal Appeal Act into the IR Act. Although s196(1) clearly displaces other provisions of Pt7 of Ch4 of the IR Act, it does not have any effect on the operation of the major Court Session power as to costs provided by s181 which appears in Pt5 of Ch4. Section 196(4) may thus be seen as intended only to confirm that s181 applies to appeals under s196 and that, as a corollary, s17 of the Criminal Appeal Act does not. As a result, an appeal may be brought pursuant to s196 of the IR Act and s5AA(1)(b) of the Criminal Appeal Act against a costs order made at first instance in criminal proceedings. Power to award costs at first instance 31 Adopting the approach outlined above, the first matter to be considered concerns the source of the Court's power to award costs in summary criminal proceedings under the OH&S Act. A general discretion to award costs is conferred on the Commission in Court Session by s181 of the IR Act. That section provides that costs are in the discretion of the Court and it may determine by whom and to what extent costs are to be paid. Whilst costs, if they are to be ordered, may be made on various bases, it is clear from s181(1) of the IR Act that any award of costs is within the discretion of the Court and that the discretion is to be exercised judicially. 32 However, the source of the power to award costs differs in the case of criminal proceedings for an offence and in proceedings otherwise before the Commission in Court Session under s181. Proceedings for an offence under the OH&S Act may be dealt with summarily before the Commission in Court Session: see s47(1)(b) of the OH&S Act. Proceedings for an offence brought before the Commission in Court Session, including proceedings for an offence under the OH&S Act, are governed by s168 of the IR Act. Section 168 is in the following terms: 168. Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15)---is taken to be a reference to the Commission in Court Session, and (b) to rules---is taken to be a reference to rules of the Commission, and (c) to the Prothonotary---is taken to be a reference to the Industrial Registrar. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 33 It will be observed that s168(2) applies the provisions of the Supreme Court (Summary Jurisdiction) Act 1967 to proceedings for an offence taken before the Commission in Court Session. In such proceedings, the provisions of that Act prevail over the provisions of Pt5 of Ch4 of the IR Act to the extent of any inconsistency: see s168(4) and Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 157 at 169 - 170. Being found in that Part of the IR Act, s181 as to costs does not apply to "proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session." 34 Thus, any jurisdiction to award costs must be found in the Supreme Court (Summary Jurisdiction) Act. Relevantly, s14 of that Act provides: 14. Judge may order payment of costs (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 section 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), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, such costs as to the Judge seem just and reasonable. (2) The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order. 35 It follows that the circumstances in which an order for costs may be made in a matter subject to the provisions of the Supreme Court (Summary Jurisdiction) Act are limited to situations where there has been a conviction, a dismissal or an order under s10 of the Crimes (Sentencing Procedure) Act 1999. 36 It is not entirely clear the basis on which the trial judge disposed of the charges against the respondents in the present matter. As has been mentioned, criminal proceedings before the Commission in Court Session are governed by the provisions of the Supreme Court (Summary Jurisdiction) Act. Even so, reference to the rules in that Act is taken to be a reference to the Industrial Relations Commission Rules 1996 ("the Rules"): see s168(3)(b) of the IR Act. At the time relevant to these proceedings, Pt28 of the Rules, which deals with proceedings relating to prosecution and civil penalty, provided two mechanisms for disposing of proceedings for an offence - first, proceedings may be dismissed pursuant to r222 where the prosecutor fails to appear or otherwise does not proceed with the matter; or, second, with leave of the Commission proceedings may be discontinued or withdrawn in accordance with Pt19 of the Rules pursuant to r223. 37 Part 19 of the Rules allows a party to proceedings, before the commencement of the hearing of any proceedings, to discontinue the proceedings in whole or in part, so long as all other parties consent or the leave of the tribunal is given: see r138(1). It is unnecessary here to discuss in detail the operation of those provisions. The approach to an application by the prosecutor to discontinue or withdraw proceedings for an offence before the Commission in Court Session was considered by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Ankucic) v. J L Lennard Food Equipment Pty Ltd (No 2) (1999) 92 IR 111. 38 In that case, a notice of discontinuance was filed by the prosecutor which sought, with the consent of the defendant, to discontinue a criminal prosecution alleging breaches of the OH&S Act. After examining in detail the relevant provisions of the Rules, particularly the interaction between r138 and r223, Walton J concluded that (at 120-121): … a criminal prosecution before the Commission in Court Session may be discontinued pursuant to r223 and Pt19 of the Rules prior to the commencement of the trial. However, leave of the Commission is required to discontinue a criminal prosecution, even where the prosecutor and the defendant consent to the prosecution being discontinued. 39 It should be noted that the Rules have since been amended to provide for the insertion of Pt27A, entitled "Proceedings for Offences". The effect of that amendment was to clarify that proceedings for an offence before the Commission in Court Session may be "discontinued or withdrawn" only with leave of the Commission. 40 It is sufficient to indicate here that we agree with the conclusions drawn in Lennard and that that approach represents the appropriate manner in which an application to discontinue proceedings should have been dealt with in this case. However, it is important to highlight that, even with leave, proceedings may only be discontinued in accordance with Pt19 of the Rules. The only method by which proceedings may be discontinued is r138 and the only method by which proceedings may be withdrawn is r139. Rules 138 and 139 are in the following terms: 138. Discontinuance (1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party: (a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent; or (b) with the leave of the tribunal. (2) Leave of the tribunal may be given in Chambers without the appearance of any person. 139. Withdrawal of process in the nature of defence, reply etc. (1) A party raising any matter in process by way of a defence or reply or in a subsequent process may withdraw that matter at any time. (2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the tribunal, an admission or any other matter operating for the benefit of that other party. 41 The trial judge purported to give leave for the first 21 summonses to be withdrawn on 21 December 1998. At that time, the respondents opposed leave being granted for the matters to be discontinued while the remaining summonses were continued. The relevant passage of the transcript recorded as follows: HIS HONOUR: What is the position? MORRIS: I am seeking leave today to withdraw 21 of the allegations; and I can go through those. I have handed up a letter. HIS HONOUR: I have a letter dated 3 June addressed to my Associate. Have Mr and Mrs Rowe been given a copy of that letter? MORRIS: They have. HIS HONOUR: So you seek to withdraw? MORRIS: For the record I can run through the ones. I seek leave to withdraw al the matters alleged against Elizabeth Rowe: IRC97/847, 848, 855, 856, 2002, 2003. I shall seek leave to withdraw offences alleged against Christine Rowe in matter numbers 97/845, 846, 851, 852, 1999, 2000 and 2001. I seek leave to withdraw matters alleged against Alan Rowe being matters numbered 97/849, 850, 853, 854, 1993 and 1998. A ROWE: I am not prepared to consent while the other judgments aren't determined. HIS HONOUR: I don't understand that. A ROWE: From what I can see the actions on the companies are continuing and apparently from what the Workcover are alleging is that I am responsible for the actions of the companies. So I can't see how I can consent to actions against me being withdrawn when the actions against the company are continuing. HIS HONOUR: Well, unfortunately you are not represented by a legal representative. A ROWE: I would like to point out that this point was raised last directions hearing which is in the minutes or the transcript. That did say I could have leave to be the representative of both companies and the individuals at these directions hearings. HIS HONOUR: I am sorry you have skipped onto another subject in one sense. But I can't see from what you have said that there is any reason why I ought not grant leave to withdraw the matters as against you that have been called out. I therefore grant leave. 42 We consider that the trial judge had no power to grant leave for the 21 summonses to be withdrawn. Notwithstanding the position which may sometimes apply at common law (see Lennard at 117), the only avenue available for proceedings to be withdrawn under the Rules is r139 which only applies to a party raising any matter in process by way of a defence or reply or in a subsequent process. As such, in our view, the Rules provide no mechanism for an initiating summons alleging an offence under the OH&S Act to be withdrawn pursuant to r139. 43 It may have been possible for the appellant to discontinue the 21 proceedings at that time pursuant to rule 138. As discussed, proceedings for an offence may be discontinued before the beginning of the hearing of the proceedings with leave of the Court. However, this was not what the trial judge purported to do. Moreover, a discontinuance under r138 must be made by filing a notice stating the extent of the discontinuance: see r141(1) of the Rules. Whilst a letter was sent to the respondents indicating an intention to seek leave to withdraw, no such notice appears to have been filed in this matter. 44 As a consequence, we have formed the view that the 21 summonses were dismissed on 21 December 1998 pursuant to r222; on any view, the appellant as the prosecutor below did not proceed with the matters thus invoking the power to dismiss the proceedings provided by r222. This was the only available method for disposing of the proceedings (other than a discontinuance but which was not sought). Pursuant to s14(1) of the Supreme Court (Summary Jurisdiction) Act, therefore, there was power to award costs in relation to the proceedings. As has been discussed, it was not apparent whether the trial judge awarded costs in relation to the 21 summonses on an indemnity basis. If the trial judge did award costs on that basis, for the reasons which follow, we do not consider that such an order was appropriate in the circumstances of this case. Also for the reasons which follow, we consider that the respondents' costs should be paid by the appellant on a party/party basis in relation to the 21 summonses dismissed on 21 December 1998. If the trial judge had awarded costs on a party/party basis, then the order was consistent with the appellant's concession. We note that in the appellant's further written submissions it was submitted there was no power to award costs where proceedings were withdrawn. That question does not arise as a result of the finding that the 21 proceedings were dismissed. 45 We turn now to consider the remaining six summonses. As has been discussed, the trial of those matters was heard over four days commencing on 15 June 1999. The matters were then adjourned part heard, with three further days set down for hearing commencing on 23 November 1999. On 27 October 1999, the solicitor for the appellant wrote to the Court and to the respondents indicating that he would either file a notice of discontinuance or seek leave to withdraw the remaining summonses. However, when the matters came on for hearing in relation to costs on 14 December 1999, no formal application was made to discontinue or withdraw the summonses and his Honour does not appear to have made any formal order disposing of the proceedings. 46 There can be no doubt that the trial judge intended to dispose of the proceedings at this stage in such a way as to ensure that no future proceedings could be brought in relation to the alleged offences and so as to allow for costs to be awarded. This may not have been achieved by granting leave to withdraw or discontinue. In any event, as the hearing had commenced in relation to the six remaining summonses, leave could not have been given to discontinue the proceedings at that time: see rr223 and 138(1) and Lennard at 115 - 116. As discussed above, there was no power to grant leave to withdraw an initiating summons alleging an offence under the OH&S Act: see rr223 and 139. 47 We consider that the proceedings should have been dismissed pursuant to r222 of the Rules. The appellant as the prosecutor did not proceed with the matters and the only proper course was for them to be dismissed. For these reasons, and in the absence of any formal order specifying the manner in which the proceedings were disposed of, we consider that the summonses were dismissed. As such, pursuant to s14(1) of the Supreme Court (Summary Jurisdiction) Act, it was open to the Court to award such costs as seemed "just and reasonable" in connection with the remaining six summonses. Costs in summary criminal proceedings 48 In summary criminal proceedings in this Court, it will ordinarily be appropriate to award costs to a defendant against whom a prosecution has failed. Once the legislature abolished the traditional common law rule that the Crown and those who institute summary proceedings neither pay nor receive costs, as it has done by enacting s14 of the Supreme Court (Summary Jurisdiction) Act, the Court must exercise its discretion as to costs in accordance with what is just and reasonable. Where a defendant has secured the dismissal of a criminal charge, it will not generally be just and reasonable to deprive the defendant of an order for costs. 49 That approach stems from the judgments of the majority (Mason CJ, Toohey and McHugh JJ, with Brennan and Dawson JJ dissenting) in Latoudis v Casey (1990) 170 CLR 534. There, a magistrate refused to award costs to a defendant against whom charges had been dismissed on the ground that the informant had acted reasonably in instituting the proceedings. The majority determined that the defendant was entitled to costs. Mason CJ stated (at 542: In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. … It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott (1981) 53 FLR 108, at p 111. Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force is costs are award by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings. 50 Of course, there may be cases in which, as a result of some aspect of the proceedings, it will not be appropriate to adopt the ordinary approach of awarding costs in favour of a defendant against whom a charge has been dismissed. This was expressly contemplated by the judgments of the majority in Latoudis: per Mason CJ at 544, per Toohey J at 565 and per McHugh J at 569. 51 Once it is accepted that it will be appropriate to award costs in favour of a defendant against whom charges have been dismissed, it is necessary to consider the basis upon which those costs should be calculated. In this regard, we do not understand the references in the majority judgments in Latoudis to the defendant being indemnified or reimbursed and not left "out of pocket" as referring to an award of indemnity costs as opposed to party/party costs. In this regard, we agree with what was said by Phillips JA in Norton v Morphitt (1995) 83 A Crim R 90 at 94: In my opinion, the judgments in Latoudis did not address the basis upon which costs were to be fixed and in that sense allowed; Latoudis was concerned with the much more general question, whether, and if so when, costs were to be awarded at all to a successful defendant after summary prosecution. In Arthur v McLeish (unreported, Brooking , Tadgell and Teague JJ, 31 August 1994), Tadgell J had occasion to distinguish between the making of an award of costs and the taxation of costs in consequence of the award; and that is a useful distinction to bear in mind here. Of course, in the Magistrates Court there is no separate taxing officer and so the two functions, of awarding costs and fixing them in amount, are not uncommonly performed at the one time - and so it was here in substance (for the adjournment from 26 August 1993 to 27 October may be ignored for this purpose). Apparently there was no contest but that, when the charge was dismissed, the appellant as defendant to the prosecution, should have an award of costs; the only question was the amount at which those costs should be allowed or fixed. 52 We note that Fisher P and Marks J adopted a similar view in WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, Matter No. CT95/1237, 1238 and 1239, 5 March 1998 at p6). 53 Although the Full Bench was not referred to any authority in which indemnity costs had been awarded against the prosecution in criminal proceedings, it is clear that the discretion conferred by s14(1) of the Supreme Court (Summary Jurisdiction) Act is broad and may, in the appropriate case, encompass an order for indemnity costs. The sub-section provides that the judge may order the prosecutor to pay to the defendant such costs as to the Court seems just and reasonable. In Dubavo, although the majority concluded that the circumstances of that case did not justify the awarding of indemnity costs at first instance, their Honours appeared to assume that it was open to the court to award indemnity costs if such an order were warranted. 54 The parties agreed, appropriately in our view, that the proper approach to the award of indemnity costs was that expressed by Hill J in Boner v Anderson (No.2) [1993] 50 IR 470 at 475, where his Honour said: There is little doubt that orders for costs on an indemnity basis still constitute exceptions to the general rule. While costs are, under the Act and the Rules, within the absolute discretion of the Court, nevertheless the Court must exercise its discretion judicially. Many of the criteria upon which such discretion is exercised in cases involving indemnity costs are to be found in the cases to which Mr Shaw referred and in a number of other cases dealing with the matter. It is fair to say that generally speaking an order for costs on an indemnity basis is justified in a case in which there are special or unusual features of an unmeritorious or improper nature surrounding the case of one party (usually the loser) which make it unreasonable and unfair that the successful party should be out of pocket as a result of the proceedings. It is unnecessary to traverse the cases in any detail; they demonstrate in one form or another special or unusual circumstances which manifest themselves in improper or unmeritorious conduct by the unsuccessful party as, for example, in cases involving the maintenance of a vexatious claim or defence, the institution and/or maintenance of an action or defence which, while not vexatious or involving an ulterior or collateral purpose, may, on a rational basis, be described as untenable or doomed to failure and cases where a party has conducted its case in wilful disregard of known facts or clearly established law. However, even where there are special or unusual circumstances attaching to a particular case it does not follow as of course that indemnity costs will be awarded. But it may be observed, and the authorities demonstrate, that the categories of special or unusual circumstances justifying indemnity costs are not closed; a too rigid or narrow approach can lead to error in the exercise of the discretion. (See generally on indemnity costs Singleton v Macquarie Broadcasting Holdings Ltd and Qantas Airways Ltd v Dillington (unreported, Supreme Court, 14 May 1987) and Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 33 - 35, per Kirby P, Gleeson CJ concurring. 55 A number of recent decisions of this Court have had occasion to consider the basis upon which an award of indemnity costs should be made: see for example, Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56 at 66-72; Frost v Speaker of the Legislative Assembly of New South Wales [2001] NSWIRComm 14 at [16] - [17]; and Tuholi Ltd v Caltex Australia Petroleum Ltd (2001) 103 IR 329 at 335-342. 56 In Tuholi, the President, after an extensive review of the authorities on indemnity costs, distilled a number of propositions in relation to the proper approach for a court to adopt in exercising its discretion on an application for indemnity costs. Those propositions, with which we agree, were set out in the following terms (at 341-342): 1. It is only in exceptional cases where a court would make a costs order other than on the usual party/party basis. 2. The grant of indemnity costs is to be seen as an unusual and exceptional course and would only occur where there is some special or unusual feature of the case to justify the Court in departing from the usual practice. 3. Nevertheless, the grant of indemnity costs is, as with any exercise of judicial discretion, one to be exercised in all the circumstances of the case and, provided regard is had to the "exceptional" nature of such an order, the primary consideration with all such discretionary orders is that it will occur "as and when the justice of the case might so require". 4. Although most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of facts which would be capable, if they existed, of warranting a departure from the usual rule, nevertheless "the categories in which the discretion may be exercised are not closed". 5. Further, a too rigid or narrow approach may lead to error in the exercise of discretion. 6. Although there are a number of recent judgments to the effect that there should be an increased tendency towards the awarding of indemnity costs, such statements should be applied with great caution in the light of the existence and operation of the general approach as to the usual way in which costs orders will be made. 7. It is also important to ensure that considerations such as mere "fierce opposition to the claim" or the conduct of a respondent which might justify the grant of the substantive application are not matters which, in themselves, would lead to the grant the costs on an indemnity basis. 57 We would specifically emphasise that the reference by Hill J in Boner v Anderson (No 2) to "special or unusual feature of an unmeritorious or improper nature surrounding the case of one party" is but one example of the "special or unusual features of a case that would justify the Court in departing from the usual practice." The circumstances in which an order for indemnity costs may be appropriate are not closed: see also Colgate-Palmolive Co Ltd v Cussons Pty Ltd (1993) 46 FCR 225 at 233. 58 The principles stated in Tuholi were distilled in the context of civil proceedings under s106 of the IR Act. In Latoudis, members of the High Court observed that the analogy between the awarding of costs in civil proceedings and summary criminal proceedings was imperfect: per Mason CJ at 543-544; per Toohey J at 565 and per McHugh J at 568. The concepts of "indemnity costs" or "party/party costs" have been developed in the context of the taxation of costs in civil proceedings. Those concepts are not strictly applicable when awarding costs arising out of summary criminal proceedings. Under s14(1) of the Supreme Court (Summary Jurisdiction) Act, a judge is not required to award costs on any particular basis and may award such costs as are just and reasonable. Nonetheless, the approach adopted in civil proceedings may properly provide a guide as to the awarding of costs in summary criminal proceedings. In this regard, it is appropriate to refer to the approach adopted by Phillips JA (with whom Ormiston and Hayne JJA generally agreed) in Norton v Morphett when considering the award of costs following the dismissal of summary criminal proceedings. His Honour observed (at 96): Appellant's counsel submitted before us that the exercise of that discretion was not to be limited, in a case like this, by consideration pertaining to an award of costs in the civil jurisdiction, and he instanced in particular the scales of costs relevant to civil proceedings. So much may be accepted, because the discretion should not be regarded as "limited" by reference to such things. But that is not to say that those very things may not provide guidance if in a given case they appear useful to the magistrate. 59 In particular, we consider that the principles stated above concerning an award of indemnity costs provide a useful guide in the case of summary proceedings under the OH&S Act: see again the approach of Phillips JA in Norton v Morphett at 96-98. As such, and in line with the authorities discussed above, we consider that there must generally be some special or exceptional feature to a case before it will be just and reasonable to award costs against a prosecutor in summary criminal proceedings on an indemnity basis. Consideration 60 In light of the principles set out above, we do not consider that the circumstances giving rise to the dismissal of the six remaining summonses were so exceptional as to warrant the awarding of indemnity costs against the appellant. The major reasons cited by the trial judge, and relied upon by the respondents on appeal, as to why indemnity costs were warranted concerned allegations that the appellant should have been aware of doubts as to the employment status of Mr DuBont and failed to conduct further appropriate investigations. It was contended that the failure to properly investigate those matters resulted in the commencement of proceedings which the appellant should have realised had limited prospects for success. Reference was made also as to whether there was sufficient justification for the institution of the multiple summonses issued against the respondents. 61 We observe that the proceedings arose out of a tragic incident in which a three-year old girl was killed in the presence of her family. The appellant doubtless had a responsibility to conduct a full investigation of the matter and to institute such charges as might appropriately be brought. As to forming a view of the adequacy of the investigation conducted by the appellant, we were hampered by the fact that a number of key documents were not tendered in evidence in the proceedings at first instance and, as a result, were not before us on appeal. In particular, documents (referred to by the trial judge as MFI 8 and MFI 9) which were forwarded to the appellant by the respondents (and said to indicate that Mr DuBont was a proprietor of the fish shop business) were not tendered in evidence at first instance and were not, therefore, available on appeal. 62 Nonetheless, it is possible to form a view as to the conduct of the proceedings. We accept the submission advanced by Mr Shaw that this is not a case in which all the evidence pointed in one direction as to the employment status of Mr DuBont. There was some documentation that may have indicated that Mr DuBont was not an employee. Mr DuBont himself consistently claimed to be an employee. The fact that he apparently did not turn out to be a successful witness for the appellant at first instance does not necessarily reflect upon the handling of the proceedings by the appellant. Furthermore, whilst the appellant appears to have been provided with the documents identified as MFI 8 and MFI 9 some time in 1998, the respondents produced other documentation relevant to the employment status of Mr DuBont only after the trial had commenced. This is a matter relevant to the consideration of the reasonableness of the scope of the investigation conducted by the appellant. 63 An additional consideration is that the prosecutions against the respondents were brought under ss15, 16 and 17 of the OH&S Act. Whilst s15 imposes an obligation on employers to ensure the health, safety and welfare at work of all employees, the charges under s16 and s17 were not necessarily dependant on the employment status of Mr DuBont. Section 16 merely requires that the defendant be an employer (that is, the employer of someone) and applies to risks to health or safety of persons not employed by the defendant arising from the conduct of the employer's undertaking at the employer's place of work. Section 17 applies to all persons, whether or not they are employers, and liability hinges, among other things, on control of non-domestic premises which have been made available as a place of work, the means of access thereto or egress therefrom. As such, the employment status of Mr DuBont is not the sole matter upon which the reasonableness of the prosecutions is to be judged. 64 This is not to deny that the respondents may have suffered significant expense and financial uncertainty as a result of the proceedings instituted by the appellant. Mr Radojev drew attention to the comments of Kirby P (as he then was) in Achutan v Coates (1986) 6 NSWLR 472 at 480, where his Honour said: "... the section [41A of the Justices Act 1902] recognises that persons accused of criminal offences can be put to a great deal of expense in defending themselves. Unlike civil litigation, they cannot simply compromise the matter. Their liberty, reputation and pocket are, or may be, at risk. Yet sometimes they may be discharged, with no real conviction as to their innocence, simply because the prosecution has been unable to prove its case as the law requires. On the other occasions, as appears to have been the case here, the Defendant may be discharged following a more emphatic conclusion that the prosecution was misconceived in the first place, resulting in great inconvenience and cost, to say nothing of the peril and ignominy that may attend a criminal prosecution that attracts publicity." 65 However, the fact that a defendant is put to expense in defending himself or herself is not in itself grounds for awarding costs on an indemnity basis. In this regard, it is appropriate to note what was said by Mason P in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616: Later cases have emphasised that the discretion to depart from the usual "party and party" basis for costs is not confined to the situation of what Gummow J described as the "ethically or morally delinquent party" ( Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415): see Baltic Shipping Co v Dillon, "Mikhail Lermontov" (1991) 22 NSWLR 1 at 34; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. Nevertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity. Any shift to a general or common rule that indemnity costs should be the order of the day is a matter for the legislature or the rule-maker: Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 248. 66 We do not consider that this is a case in which it was appropriate to award costs against the appellant on an indemnity basis. As it was not appropriate to award indemnity costs in relation to the six proceedings which went to trial, it was also not appropriate to award indemnity costs as to the initial 21 summonses which were dismissed on 21 December 1998. It follows that the appeal should be upheld. The appellant conceded that costs should be awarded to the respondents on a party/party basis. The concession was, in our view, properly made. Such a result is consistent with the ordinary course of awarding costs to a defendant against whom a prosecution has failed, and is the appropriate resolution of these proceedings. 67 The final matter for consideration concerns the costs of the appeal. Mr Shaw indicated that the appellant sought costs of the appeal if it were successful. We consider that this submission should not be accepted and propose to make no order in that respect. The appellant properly conceded that costs should be awarded to the respondents on a party/party basis following the dismissal of the proceedings at first instance. In light of the particular circumstances of this matter, and having regard to the fact that the appeal concerns the limited question of costs, we do not think it appropriate to make an order against the respondents in relation to the costs of the appeal. Although the appellant has been successful in the appeal, to award costs against the respondents would have the effect of depriving them of a significant portion of the costs of the dismissed proceedings to which the appellant conceded they were entitled. Orders 68 As no submissions were made as to the quantum of costs, the orders made on appeal should provide a reasonable period for the parties to apply to the Court for an order fixing the amount of such costs as to the proceedings at first instance in the event they fail to reach agreement on that matter. 69 The Court makes the following orders: 1. The appeal is upheld. 2. The orders of Maidment J as to costs are quashed. 3. The appellant shall pay the costs of the respondents in the proceedings before Maidment J on a party/party basis. 4. Leave is granted to the parties, provided that such leave is exercised within 21 days of this judgment, to apply to the Court to fix the amount of costs referred to in order 3. 5. There be no order as to the costs of the appeal. ________________________________ 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.