Newcastle Wallsend Coal Company Pty Limited and others v McMartin (No 2) [2007] NSWIRComm 125

Industrial Court of New South Wales

CITATION: Newcastle Wallsend Coal Company Pty Limited and others v McMartin (No 2) [2007] NSWIRComm 125

APPELLANTS Richard Myles Porteous Newcastle Wallsend Coal Co Pty Limited Jonathan Erik Humphries Romcke PARTIES: Oakbridge Pty Limited Mark Robinson

RESPONDENT Stephen Finlay McMartin

FILE NUMBER(S): IRC 1591; 1592; 1593; 1594; 1595 of 2007

CORAM: Walton J Vice-President at [1]; Marks J at [102]; Boland J at [1]

Appeal - Occupational Health and Safety - Costs - Complications in dealing with costs caused by minority judgment in the appeal having dealt with costs prior to hearing the parties - Further complications arising from minority judgment having addressed a number of contentious matters in the context of dealing with costs without the parties having been heard in relation to such matters - Whether need to re-open proceedings - Costs issues relate to both of the corporate appellants and to three personal appellants - Respondent successful on appeal in relation to both liability and sentence in respect of corporate appellants and one of the personal defendants - One personal defendant wholly successful on appeal in relation to liability and sentence- One personal defendant partially successful on appeal in relation to liability and sentence - Whether conditional offer by corporate appellants to plead guilty and refusal by respondent to accept plea affects respondent's entitlement to costs - Whether any disentitling conduct on the part of the respondent - No cost orders sought against personal appellant in respect of whom appeal dismissed - Whether personal defendant who was wholly successful on appeal should have indemnity costs - Whether in the alternative the personal defendant who was wholly successful on appeal should have costs of the appeal and costs at first instance on a party/party basis or whether because of personal appellant's joint participation in the appeal and at first instance the costs awarded against the corporate appellants should be discounted for the fact the personal appellant was successful on appeal - Whether costs should be ordered against personal appellant who was partially successful on appeal and separately represented on appeal - Criticism of respondent in minority judgment regarding conduct of the prosecution considered to be unfair and immoderate - No proper basis for criticism of respondent's solicitor in the minority judgment - Respondent awarded costs of appeal in relation to corporate appellants - Corporate appellants' costs discounted for the fact that one of the personal defendant's who participated jointly with the corporate appellants at first instance and on appeal was wholly successful - Corporate appellants' costs at first instance further discounted for partially successful personal defendant who also participated jointly with the corporate appellants at first instance - Costs awarded to personal defendant who was partially successful on appeal and represented separately on appeal discounted because it was the issues relating to his liability as well as the issues relating to the liability of the corporate appellants rather than the issues on which he succeeded that were the most expensive in terms of costs - Correction order made - Costs orders made CATCHWORDS: Costs - Appeal - Occupational health and Safety - Complications in dealing with costs caused by minority judgment in the appeal having dealt with costs prior to hearing the parties - Further complications arising from minority judgment having addressed a number of contentious matters in the context of dealing with costs without the parties having been heard in relation to such matters - Whether need to re-open proceedings - Costs issues relate to both of the corporate appellants and to three personal appellants - Respondent successful on appeal in relation to both liability and sentence in respect of corporate appellants and one of the personal defendants - One personal defendant wholly successful on appeal in relation to liability and sentence- One personal defendant partially successful on appeal in relation to liability and sentence - Whether conditional offer by corporate appellants to plead guilty and refusal by respondent to accept plea affects respondent's entitlement to costs - Whether any disentitling conduct on the part of the respondent - No cost orders sought against personal appellant in respect of whom appeal dismissed - Whether personal defendant who was wholly successful on appeal should have indemnity costs - Whether in the alternative the personal defendant who was wholly successful on appeal should have costs of the appeal and costs at first instance on a party/party basis or whether because of personal appellant's joint participation in the appeal and at first instance the costs awarded against the corporate appellants should be discounted for the fact the personal appellant was successful on appeal - Whether costs should be ordered against personal appellant who was partially successful on appeal and separately represented on appeal - Criticism of respondent in minority judgment regarding conduct of the prosecution considered to be unfair and immoderate - No proper basis for criticism of respondent's solicitor in the minority judgment - Respondent awarded costs of appeal in relation to corporate appellants - Corporate appellants' costs discounted for the fact that one of the personal defendant's who participated jointly with the corporate appellants at first instance and on appeal was wholly successful - Corporate appellants' costs at first instance further discounted for partially successful personal defendant who also participated jointly with the corporate appellants at first instance - Costs awarded to personal defendant who was partially successful on appeal and represented separately on appeal discounted because it was the issues relating to his liability as well as the issues relating to the liability of the corporate appellants rather than the issues on which he succeeded that were the most expensive in terms of costs - Correction order made - Costs orders made