Industrial Court of New South Wales CITATION: Inspector Hamilton v John Holland Pty Ltd (No 2) [2010] NSWIRComm 112 PARTIES: Inspector Nathan Hamilton (Prosecutor) John Holland Pty Limited (Defendant) FILE NUMBER(S): IRC 1989 and 1990 of 2007 CORAM: Boland J President; Walton J Vice-President; Haylen J; Staff J CATCHWORDS: COSTS - REFERENCE OF QUESTIONS OF LAW - Who should bear the costs of a Reference to a Full Bench under s 5AE(1) of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996 - Who should bear costs of proceedings before single member of 'initial purported reference' - Defendant to pay prosecutor's costs of Full Bench proceedings - The question of costs relating to the 'initial purported reference' before single member to be determined by single member LEGISLATION CITED: Criminal Appeal Act 1912 Industrial Relations Act 1996 CASES CITED: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72 HEARING DATES: Written submissions: 11 and 18 June 2010 DATE OF JUDGMENT: 11 August 2010 Mr J V Agius SC with Mr R Reitano of counsel and Mr B G Docking of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr G J Hatcher SC with Mr G W McGrath of counsel (Defendant) Herbert Geer, Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President HAYLEN J STAFF J Wednesday 11 August 2010 Matter No IRC 1989 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 1990 of 2007 INSPECTOR NATHAN HAMILTON v JOHN HOLLAND PTY LTD Prosecution pursuant to s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 112 1 In Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72, a judgment given on 4 June 2010, the Full Bench provided answers in each of the matters before the Court to six questions of law referred to the Full Bench by Backman J under s 5AE(1) of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. 2 The answers provided by the Full Bench were consistent with how the prosecutor, Inspector Nathan Hamilton of the WorkCover Authority of New South Wales, had contended the six questions should be answered: see Hamilton v Holland at [29], [111] and [112]. The Full Bench rejected the defendant's position that the 'charges were fundamentally defective such that each was a nullity.' 3 As to costs, the Full Bench stated: [110] The parties now have the benefit of our decision in these matters. The defendant shall have seven days to file supplementary submissions on costs with the prosecutor having a further seven days in which to reply. Unless a party indicates a desire to be heard orally on costs, the question will be determined on the papers. 4 Consequently, the parties filed their supplementary submissions. This decision deals with the costs issue. Submission of the defendant 5 As the prosecutor was wholly successful in respect of all of the questions that were subject of the reference, the costs of the proceedings before the Full Bench should be borne by the defendant. The defendant, however, contended that the prosecutor should pay the defendant's costs of and incidental to the 'initial purported reference' of questions of law to the Full Bench. In summary, the defendant had submitted this should be so because: a. it was his insistence on the immediate and informal referral (without sufficient notice or timely consideration) of his formulation of questions of law which resulted in the waste of several days Court time; b. his insistence, wrongly, on engaging in that process resulted in there being nothing before the Full Bench on the first purported return date; c. those costs were entirely thrown away; and d. contrary to his assertion to the Full Bench, the defendant had in fact drawn the deficiencies in the questions and process to his attention at an early opportunity. 6 The defendant submitted that what was for determination before the Full Bench on 2 March 2010 was the question as to whether or not there was any jurisdiction or power for the Full Bench to entertain the purported reference under s 5AE that then had been brought before it on the prosecutor's 'hurried and insistent application'. 7 It was noted that the Full Bench at the time determined there was nothing properly or validly before it, as the trial judge had not made or entered an order for referral, and there was no jurisdiction or power for it to answer the questions of law purportedly referred to it on the prosecutor's 'hurried instigation'. 8 Counsel for the defendant submitted the prosecutor had led the trial judge into error by not permitting sufficient time for questions to be properly formulated and contained in an order of the trial judge: The Prosecutor refused to accede to the Defendant's requests for a more carefully considered referral and is wholly to blame for the waste of costs in respect of the initial purported s.5AE referral. Moreover, the Defendant, having unsuccessfully sought an adjournment to enable Senior Counsel to consider the proposed questions for referral, identified, without notice and through junior counsel, several obvious defects in the proposed questions of law, which ultimately proved fatal to them. 9 The defendant contended that: a) In the due exercise of discretion, the Full Bench would wish to deal with the costs of the determination of that question of its jurisdiction or power to determine that initial purported s. 5AE reference. Were it to do otherwise, the Defendant would be left exposed to the liability to pay its own legal representatives in respect of appearing in referral proceedings improperly or invalidly initiated by the Prosecutor. b) This Honourable Full Bench should in the circumstances order the Prosecutor to pay the Defendant's costs of and incidental to the failed or purported initial s. 5AE reference (see Proust v Blake (1988) (sic) 17 NSWLR 267 per Samuels JA at 272 (with whom Campell (sic) and Mathews JJ agreed), in which the Court of Criminal Appeal held it had no jurisdiction or power to entertain a purported referral to it of questions of law; see also Coffey (sic) v Scanlon (1992) 26 NSWLR 485 at 490 per Cahill VP (Industrial Commission)). Submission of the prosecutor 10 The prosecutor submitted that the appropriate order for costs of the reference to the Full Bench should be that the defendant should pay the prosecutor's costs of the reference. 11 In relation to what the defendant termed the 'initial purported reference' and its submission that costs were thrown away as a consequence of the prosecutor's conduct, the prosecutor submitted that was a matter properly to be heard and determined by Backman J. However, the prosecutor denied he was blameworthy. It was submitted: The prosecutor completely rejects the defendant's characterisation of what occurred before Backman J when the matter of reference was first agitated before her Honour. The conduct of the prosecutor in seeking to have its questions referred was entirely appropriate. The objection to proceeding by way of reference in the first instance was a barren and technical objection – the defendant's Counsel simply referred to the fact that the defendant had not had three days notice of the Notice of Motion and nothing else. The simple proposition put by Counsel for the defendant to Backman J as to why the question of the reference ought not to be dealt with at that time was because of a technicality that three days' notice of the application had not been given to the defendant … No question of prejudice real or otherwise was raised by the defendant. The prosecutor's position was properly informed by the fact that the defendant had waited five weeks after the Judgment in Kirk to file its Notices of Motion (by which the issue of validity was to be tested) and the date fixed for the trial of the defendant and other defendants may be jeopardy. The prosecutor saw a prospect that a trial that had been set down to commence on 27 September 2010 and continue until 3 December 2010 was likely to be adjourned because of the issues raised by the defendant's Notices of Motion. This was in the context of a trial that had already once been set down and vacated. The defendant has never made clear why it could not have propounded its questions more urgently other than by reference to the fact that Senior Counsel was elsewhere engaged. An adjournment had been granted by her Honour to accommodate Senior Counsel however this did not appear to be of assistance to the defendant. Thereafter the prosecutor was not put on notice of any of the matters raised before the Full Bench on 2 March 2010 until that same day. … It is obvious, in any event, that the prosecutor sought by the reference of the questions it was propounding, to have the real issue in the proceedings – that is the issue of fundamental validity of the charges and the issue of jurisdiction – resolved before the trial commenced. The prosecutor's stated position was to ensure that the legal issues that the defendant wished to ventilate be before the Full Bench on the reference. In this way the prosecutor sought to meet the interests of justice from the perspective of all parties. The defendant considered its questions were a more appropriate vehicle for that purpose. It took its time in formulating them and did not articulate questions in terms in the Notices of Motion it had itself drawn and filed. As it happened once the prosecutor was on notice that the defendant regarded the questions it was propounding as resolving all of the issues to do with essential validity of the charges and it was clear that the defendant did not intend later to again agitate that question, the prosecutor agreed to a reference of the questions as proposed. Consideration 12 The issue raised by the defendant is whether costs relating to the 'initial purported reference' were thrown away by the conduct of the prosecutor and, therefore, that the defendant should have the costs in respect of those proceedings. 13 Those proceedings were before Backman J. Her Honour is best placed to determine the question of costs in relation to those proceedings, not the Full Bench. 14 Insofar as the Full Bench proceedings regarding the reference are concerned, they are discrete and severable from the proceedings before Backman J. There is no impediment to determining the question of costs of those proceedings at this point. Order 15 The Full Bench makes the following order: (1) In Matter Nos IRC 1989 and 1990 of 2007, the defendant shall pay the prosecutor's costs of the Full Bench proceedings concerning the questions of law referred to the Full Bench by Backman J under s 5AE(1) of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996 as agreed or, in the absence of agreement, as assessed. _______________________________ 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.