Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service (No. 2) [2006] NSWIRComm 272 Prosecutor: WorkCover Authority of New South Wales (Inspector Ross Wolf) PARTIES: Defendant: South Eastern Sydney and Illawarra Area Health Service FILE NUMBER(S): IRC 2122 of 2005 CORAM: Backman J CATCHWORDS: Application for costs of adjournment made by defendant - proceedings under s 8(1) of the Occupational Health and Safety Act 2000 part-heard - application opposed by prosecutor on ground that Court has no power to award costs of adjournment in proceedings for an offence - procedure governing summary offences s 168 of the Industrial Relations Act 1996 - whether s 257F of the Criminal Procedure Act 1986 introduced on 13 July 2006 by the Courts Legislation Amendment Act No. 23 of 2006 applies - whether s 253 in force prior to 13 July 2006 applies - effect of Part 11 of Schedule 2 of Criminal Procedure Act 1986 considered - held: s 253 applies and s 257F does not apply - held: s 181(1) of the Industrial Relations Act 1996 does not apply - application dismissed. Courts Legislation Amendment Act No. 23 of 2006 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 CASES CITED: WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 HEARING DATES: 25/07/06, 26/07/06, 27/07/06, 31/07/06, 08/08/06 DATE OF JUDGMENT: 08/23/2006 Prosecutor: Ms P Lowson of counsel Solicitors: Moray & Agnew LEGAL REPRESENTATIVES: Defendant: Mr R Buchanan QC with Ms L McManus of counsel Solicitors: Sparke Helmore JUDGMENT: - 5 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Wednesday, 23 August 2006 Matter No IRC 2122 of 2005 WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service (No. 2) Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 272 1 The defendant in these proceedings has applied for costs following its successful application for an adjournment. The proceedings, a contested prosecution brought under s 8(1) of the Occupational Health and Safety Act 2000, which are part-heard, commenced on 25 July 2006. The defendant's adjournment application was made and granted on 31 July 2006. 2 The basis of the application was that on 28 July 2006, the prosecutor served a statement on the defendant. The statement, the Court was advised, was made by a psychiatrist, Dr Heiner. Dr Heiner has apparently examined and commented upon the clinical notes of one of the defendant's patients. The patient, referred to as "RA", allegedly assaulted a nurse in the defendant's employ. This conduct forms part of the foundational facts upon which the charge brought against the defendant under s 8(1) of the Act proceeds. 3 The principal reasons for the adjournment, the Court was told, were that the clinical notes produced by the defendant followed the recent filing and service of a summons for production by the prosecutor. The information set out in the statement is therefore "very late" and opens up a critical area of inquiry concerning the professional opinion of a witness. This in turn requires an approach being made to Dr Heiner by the defendant with a view to conferring with him as to the contents of his statement. Given the significance of Dr Heiner's proposed evidence, and its very late receipt, the defendant stated that it would not be in a position to cross-examine any of the prosecution's witnesses until appropriate enquiries had been completed. In addition, Dr Heiner was, at the relevant time only one of RA's treating psychiatrists. The issue of the clinical notes is critical because the prosecutor's case will proceed upon the basis that a failure by the defendant to take certain clinical steps involved a risk to the safety of its employees. The prosecutor, in these circumstances, according to the defendant, has an obligation to call appropriate evidence as to how the matter is to be viewed from a psychiatric viewpoint. This issue should not, however, be confined to the evidence of one psychiatrist. 4 The prosecutor opposed the application for costs and on 8 August 2006 filed in court an outline of submissions on the costs application. The defendant, shortly after, also filed a submission in which it accepted the prosecution's outline, with the result that both parties agree that the Court does not have the power to award costs at this stage of the proceedings. 5 The prosecutor's submissions, briefly stated, were that first, s 168 of the Industrial Relations Act 1996 governs the procedure for summary offences in this Court. This approach was confirmed in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351 at [31] and [32] when the Full Bench said: [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 s 181 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 s 181(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 s 181. Proceedings for an offence under the OH&S Act may be dealt with summarily before the Commission in Court Session: see s 47(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 s 168 of the IR Act. 6 Secondly, on 13 July 2006, s 257A to s 257G inclusive were introduced into Part 5 of Chapter 4 of the Criminal Procedure Act 1986 by the Courts Legislation Amendment Act No. 23 of 2006. The Second Reading of the Courts Legislation Amendment Bill records the intended purpose of the amendments to the CPA 1986 as follows: The Act will be amended to provide that the Supreme Court and other higher courts may make costs orders against a party in summary criminal proceedings, on an adjournment, due to unreasonable conduct or delays. Once again, this will align the situation in the Supreme Court and other higher courts to that, which currently exists in the Local Court. Schedule 3 will amend the Crown Prosecutors Act 1986 to specifically enable Crown Prosecutors to exercise their functions on a part-time basis by arrangement with the Director of Public Prosecutions. 7 The relevant provision for present purposes is s 257F which provides: 257F (1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings. 8 Thirdly, according to prosecutor those amendments do not apply to the present proceedings by virtue of Part 11 of Schedule 2 of the CPA which provides: 49 In this Part: amending Act means the Courts Legislation Amendment Act 2006. Amendments 50 (1) An amendment made to this Act by the amending Act does not extend to proceedings instituted before the commencement of that amendment. (2) Such proceedings may be dealt with as if the amendment had not commenced. 9 The effect of this is that s 253 of the CPA 1986 continues to apply to these proceedings. The relevant parts of that section are extracted below: (1) A court may, in and by a conviction order, order an accused person to pay to the prosecutor such costs as the court specifies or, if the conviction or order directs, as may be determined under subsection (2), if: (a) the court convicts the accused person of an offence, or (b) (Repealed) (c) the court makes an order under section 10 of the Crimes (Sentencing Procedures) Act 1999 in respect of an offence. (1A) A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2). (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. ... 10 A reading of the foregoing provisions, as well as the passages to which the Court's attention was drawn in Inspector Dawson v Plastachem, compels the conclusion that the relevant provision to which the present application is directed is s 253 of the CPA 1986. In particular, Part 11, which is contained in Schedule 2 of the CPA 1986, makes it clear that any amendments to that Act made under the Courts Legislation Amendment Act No. 23 of 2006 do not apply to the present proceedings which were instituted on 27 April 2005 when the original application was filed in the Industrial Registry. 11 Section 253 applies in its terms only to convictions, orders under s 10 of the Crimes (Sentencing Procedures) Act 1999 and dismissals of charges, but not to costs applications made following the granting of an adjournment of criminal proceedings. Nor, as the defendant conceded, can s 181(1) of the Industrial Relations Act 1996 provide a separate or independent head of power which would be used to make an order for costs contemplated by s 253: Inspector Dawson v Plastachem at [31] - [32]. 12 These findings do not preclude, however, the defendant renewing its application at the conclusion of the proceedings. Orders 13 The Court makes the following order: 1. The application for costs made by the defendant on 31 July 2006 is dismissed. _______________________ 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.