Industrial Court of New South Wales CITATION: Mukherjee v WorkCover Authority of New South Wales (No 2) [2008] NSWIRComm 86 GOPAL MUKHERJEE Appellant PARTIES: WORKCOVER AUTHORITY OF NEW SOUTH WALES Respondent FILE NUMBER(S): IRC I437 of 2007 CORAM: Boland J President; Schmidt J; Backman J CATCHWORDS: Costs - application for leave to withdraw consent to costs order of the appeal - order made by consent before hearing adjourned - whether Court functus officio - slip rule - relief sought not available under slip rule - leave to withdraw consent refused - costs of the proceedings at first instance - requirements of section 70 (1) of the Crimes (Appeal and Review) Act 2001 in relation to conduct of proceedings at first instance - respondent's conduct of proceedings at first instance considered - costs of part of proceedings below made in favour of the appellant Crimes (Appeal and Review) Act 2001 - s 70(1) Criminal Procedure Act 1984 - s 214 LEGISLATION CITED: Evidence Act 1995 - s 65 Industrial Relations Act 1996 - s 181 Industrial Relations Rules - rr 38 and 151 Workplace Injury Management and Workers Compensation Act 1998 Hilton Nursing Home Pty Ltd v Maciver (2000) 102 IR 335 CASES CITED: Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209 Ove Arup Pty Ltd v WorkCover Authority (2005) 141 IR 78 Mukherjee v WorkCover Authority of New South Wales [2008] NSWIRComm 53 DATE OF JUDGMENT: 9 May 2008 APPELLANT: Mr RP Greenhill SC SOLICITORS: Avant Mutual Group Limited LEGAL REPRESENTATIVES: RESPONDENT: Mr CP O'Donnell, counsel SOLICITORS: Criminal Law Practice Group WorkCover Authority of New South Wales JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, PRESIDENT SCHMIDT J BACKMAN J 9 May 2008 Matter No IRC 1437 of 2007 GOPAL MUKHERJEE v WORKCOVER AUTHORITY OF NEW SOUTH WALES (No 2) Application by Gopal Mukherjee for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 13.8.2007 in matter no. CIM20004279/06/02 JUDGMENT OF THE COURT [2008] NSWIRComm 86 1 Judgment was given in this matter on 18 March 2008 (Mukherjee v WorkCover Authority of New South Wales [2008] NSWIRComm 53), upholding an appeal from a conviction of a charge brought under s 253A of the Workplace Injury Management and Workers Compensation Act 1998. The orders made were: 42 For the reasons given, leave to appeal must be granted, the appeal upheld and the conviction of the appellant quashed. We order accordingly. The respondent is also ordered to: (i) pay the costs of the appeal, as agreed or assessed, (ii) repay to the appellant the fine imposed by the Chief Industrial Magistrate. 2 We reserved on the question of the costs of the proceedings below, granting the respondent an opportunity to consider that application. A programme for filing written submissions was fixed. We have determined the question of costs on the basis of the parties' written submissions. 3 When the respondent filed its submissions on 31 March, leave to withdraw the consent given to the costs order earlier made was sought. The respondent also submitted that its earlier consent should not be taken to have involved a concession that any of the matters set out in s 70(1) of the Crimes (Appeal and Review) Act 2001 had, thereby, been established. Section 70(1) provides: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. 4 The respondent submitted that the Court was not functus officio with respect to the costs of the appeal, relying on Hilton Nursing Home Pty Ltd v Maciver (2000) 102 IR 335 at [25] to [26], where it was observed that: [25] In the judgment of 22 May 2000, where she declared the Court to be functus officio in relation to the costs issue, her Honour took the view that, and although Hilton Nursing Home had — with the acquiescence of Mrs Maciver — reserved its position on the question of its offer of compromise, no submissions were made opposing the order sought as to costs. Her Honour said: "The orders made on 20 April evidenced the Court's intention to deal finally with the matter, including the question of costs, in the light of the position which the parties took at the hearing. Had the respondent wished to pursue any question of compromise, the proper course would have plainly been to oppose the making of any costs order." [26] It may have been that from 14 December 1999, when the issue of an offer of compromise surfaced as an issue, Hilton Nursing Home should have placed more emphasis on reserving its position and on ensuring the question of costs remained open. However, Hilton Nursing Home was entitled to know, with certainty, the extent of its liability arising out of any orders Schmidt J might make. That was not known until her Honour had made the orders on 20 April 2000. Hilton Nursing Home had reserved the issue of its offer of compromise pending any orders and this was by consent of the parties. Once the extent of its liability became clear, Hilton Nursing Home was then entitled to raise its offer of compromise and the implications that that had for costs in the matter. Her Honour was not relevantly functus officio. Accordingly, we remit this matter to Schmidt J for determination. 5 In the alternative, the respondent relied on the slip rule set out in Rules 38 and 151 of the Court's Rules. Those Rules provide: 38 Correction of orders or awards (1) The Registrar may publish on the NSW industrial relations website any correction which is necessary by reason of a clerical or printing error in an order or award as published. (2) Where there is a mistake in an order or award, arising from an accidental slip or omission, the tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. (3) A tribunal, on application by any party or of its own motion may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or award. … 151 Minute of judgment or order (1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. (2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision. (3) The power in this Rule is additional to the power in Rule 38. 6 It was argued that the respondent's omission, not deliberate, to refer the Court to the provisions of s 70(1) of the Crimes (Appeal and Review) Act, fell within those Rules. It was submitted that, accordingly, the costs order earlier made by consent should be revoked and that no order as to costs should be made against the respondent in respect of the appeal or the proceedings below. 7 While it was conceded that the Court had jurisdiction to award such costs, it was argued that the onus fell on the appellant to bring the case within the exceptions provided in s 70(1). That onus could not be satisfied because there was no evidence that the investigation conducted by the respondent had been conducted in an unreasonable or improper manner; that the proceedings below were initiated without reasonable cause, or in bad faith, or were conducted in an improper manner; that the prosecutor had unreasonably failed to investigate any relevant matter; or that there were other exceptional circumstances relating to the conduct of the proceedings, which made it just and reasonable that costs should be awarded in favour of the appellant. 8 As to the costs of the proceedings below, it was also conceded that the Court had jurisdiction to award such costs, pursuant to s 181 of the Industrial Relations Act 1996. It was argued, however, that there would be no such order made. The provisions of s 214 of the Criminal Procedure Act 1984, would have governed the making of costs orders, had the proceedings been dismissed below. That section provides: 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. 9 The section is in similar terms to s 70(1) of the Crimes (Appeal and Review) Act. It followed, it was argued, that no costs would be awarded in respect of the proceedings below. 10 The case for the appellant was that it had been proper for the Court to make the costs order, which the respondent had consented to, at the hearing of the appeal, particularly given the terms of the judgment which had been given ex tempore. That consent should be recognised as a concession that the Court had jurisdiction to make the order and that it was appropriate that it be made, in the circumstances before the appeal bench. The respondent's counsel and/or instructing solicitor must be presumed to have known of the provisions of s 70(1) of the Crimes (Appeal and Review) Act. This attempt to avoid the consequences of the concession, made at the hearing, should not be permitted. Any legal practitioner practising in criminal law, especially one prosecuting an offence for a public authority, such as the respondent, would be very much aware of the provision. 11 Even if the Court were not functus and the submissions as to the availability of the slip rule were not misconceived, the order for costs would be made by the Court, in the circumstances of this case. There were exceptional circumstances, which made it just and reasonable to award costs in favour of the appellant. 12 The case below concerned criminal proceedings involving a serious allegation of fraud. The prosecutor bore the onus of proving the allegations beyond reasonable doubt. It had the obligation to call all material witnesses, including the crucial Ms Gamboa, without whose evidence the prosecution was doomed. The prosecutor failed to inform Ms Gamboa of the obligation to attend Court in answer to the subpoenas served upon her and of the possible consequences of not so complying. The prosecutor had made a deliberate decision not to call Ms Gamboa. It failed to advance any reasons for not seeking the issue of a bench warrant to compel Ms Gamboa's attendance. As a result, the appellant was unfairly deprived of the opportunity to cross examine Ms Gamboa, resulting, for the appellant, in unfair prejudice, costs and the stress of seeking to prove his innocence at a hearing, where he had no case to answer. The prosecutor persisted in seeking to establish the appellant's guilt in unfair circumstances, where the case was devoid of admissible and cogent evidence. 13 It followed that the concession made before the appeal bench fell squarely within s 70(1)(d) and that additionally, for the same reasons, an order as to the costs of the proceedings below should also be made in the appellant's favour. 14 In reply, it was submitted for the respondent, that while the respondent had consented to the costs order made at the hearing of the appeal, neither of the respondent's legal representatives gave consideration to the provisions of s 70, prior to, or at the time of, indicating the respondent's consent to the order sought. The section was not referred to. It followed, in those circumstances, that the consent given should not be recognised as a concession that the grounds specified in s 70 existed in this case and the respondent should not be deprived of the opportunity of contesting the application of that provision. 15 It was accepted that the proceedings below were serious criminal proceedings. The respondent satisfied the Chief Industrial Magistrate that the offence had been proven beyond reasonable doubt. Evidence from all material witnesses, including Ms Gamboa, had been adduced. The Chief Industrial Magistrate was satisfied, in accordance with the provisions of s 65 of the Evidence Act 1995 that Ms Gamboa was unavailable and that she had made the representations contained in her three statements, in circumstances which satisfied the requirements of s 65(2)(a), (b) and (c) of the Evidence Act. It was also found that Ms Gamboa's evidence was highly probative and not unfairly prejudicial. 16 Ms Gamboa had twice been subpoenaed to attend Court. Both subpoenas advised that 'If you do not comply with this subpoena you may be arrested.' The respondent contacted Ms Gamboa in person and by telephone on a number of occasions to secure her attendance at Court. There was no deliberate decision not to compel Ms Gamboa's attendance. Ms Gamboa first informed the respondent on 17 July, the night before the hearing, that she had received a threat to herself and her children and that she did not wish to attend court. Officers of the respondent spoke to her by phone and in person. 17 After the proceedings adjourned, a second subpoena was served. Afterwards, Ms Gamboa again repeated her assertion that she had been threatened and would not attend Court. 18 The fact that no bench warrant was sought was made known to the Chief Industrial Magistrate. The respondent's arguments, that seeking such a warrant was not required in order to establish Ms Gamboa's unavailability, were accepted by the Chief Industrial Magistrate. It followed that the requirements of s 70(1)(d) were not satisfied and that no order for the costs of the appeal, or the proceedings below, should be made. Consideration 19 The circumstances here before the Court are not analogous to those considered in Hilton Nursing Home Pty Ltd. This was not a case where the respondent sought to reserve its position as to the costs of the appeal. As the respondent accepts, the order as to the costs of the appeal was made by consent, after judgment was given and after instructions were taken at the hearing. 20 It was then submitted for the respondent: Clearly my friend has success on the appeal. I'll just get some instructions about that. Clearly this court would have jurisdiction to order costs in the present appeal in favour of the successful party. I 'm not quite sure and I have not had time to look at whether this court would have jurisdiction in respect of the proceedings in the court below as to making a costs order in respect of those or whether the matter might have, for example, to be remitted to that court for that purpose. I apologise I can't answer that question at the moment. 21 An adjournment was sought, and granted, for written submissions to be put on in relation to the costs of the proceedings below. The orders earlier quoted were then made, with the question of the costs of the proceedings below being reserved. The respondent simply did not seek to reserve its position in relation to the costs of the appeal. 22 Also of relevance to the application is what was concluded by the Full Court in Ove Arup Pty Ltd v WorkCover Authority (2005) 141 IR 78 at [26]: 26 The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable. 23 While it has been suggested that this is a practice which the Court might reconsider, that has not occurred (See Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209 at [7]). 24 The Court's judgment was given ex tempore on 18 March. The costs order in question was made before the hearing adjourned. A written copy of the Court's judgment, including the costs order, was provided to the parties on 19 March. It was not until 31 March that the respondent's submissions, seeking the opportunity to revisit the Court's order as to costs, was filed. In the circumstances, that opportunity is not one which was available to the respondent. 25 Nor can the matter be dealt with under the slip rule. The respondent candidly concedes that it was an error on the part of its legal representatives, which led to the costs order sought by the appellant, being consented to. Had the application that the respondent be given leave to withdraw its consent to the costs order been made, before the Court made the order which the respondent now seeks to have set aside, it could have been entertained. Having been made in the circumstances outlined, however, the slip rule is not available to assist the respondent. The slip rule 26 The slip rule is concerned to ensure that the true intent of the Court be achieved by the orders which the Court makes. Here, on instructions, there was a deliberate consent by the respondent to the costs order sought by the appellant, in relation to the successful appeal. That consent being forthcoming, the Court made an order giving effect to what had been agreed. There can be no doubt that the order made, achieved what the Court then intended. 27 That there was a failure by the respondent to refer the Court to s 70(1) of the Crimes (Appeal and Review) Act, cannot overcome the effect of what occurred at the hearing, when the order as to the costs of the appeal was made by consent. In any event, the order is supported by the provisions of s 70(1)(d) itself, for reasons developed below. The proceedings at first instance 28 As to the costs of the proceedings at first instance, we take the view that the error of the respondent's legal advisers should not preclude the respondent from resisting the order sought. On the cases which the parties respectively advanced, the question to be determined is whether or not the provisions of s 70(1)(d) are satisfied. 29 In our view, there is no question that until the proceedings before the Chief Industrial Magistrate on 22 November - after a second subpoena had been served on Ms Gamboa - there was nothing exceptional about the way in which the respondent had conducted the prosecution, which could warrant any order as to costs being made against the respondent. 30 Up to that point, statements had been taken from Ms Gamboa crucial to establishing the prosecution case. Arrangements had been made for Ms Gamboa to give evidence, including by the service of a subpoena. There was no difficulty with the conduct of the proceedings, it appeared, of any kind, to that point. Ms Gamboa's claim, that she had received a threat to her and her family, only became known on the evening before the hearing on 18 July. Officers of the respondent then spoke to Ms Gamboa, who advised of her unwillingness to come to Court to give evidence. 31 The hearing on 18 July was adjourned until 22 November. On the evidence, another subpoena was served on Ms Gamboa in October, and on 26 October Ms Gamboa spoke to an officer of the respondent, enquiring why the subpoena had been served and advising that she was still not prepared to give evidence. In the earlier judgment we observed: 24 There was no evidence to suggest that any explanation was given to Ms Gamboa as to why this second subpoena had been served; the obligation which Ms Gamboa had to appear in answer to the subpoena; the risk that a bench warrant would be issued, or that she would be in contempt of court if she did not appear. 25 It follows that there was no evidence before his Honour that Ms Gamboa had ever had explained to her the importance of her evidence to the prosecution case; the obligations which she had to appear in court in answer to the subpoenas served upon her; or the consequences of her failing to do so. It appears that the prosecutor did not contact Ms Gamboa before the second subpoena was served upon her. She was not asked if she had reconsidered her position before that second subpoena was served. Nor was she then told about any of the matters mentioned above. She was never required to appear before the Court, as she could have been, had a bench warrant been issued, so that these matters could have been explained to her, so that she could reconsider her attitude, explain her position to the Court, or take advice. 32 On 22 November, the respondent sought a four-week adjournment to consider whether or not to seek a bench warrant, submitting that it: '... needs some time given the non-attendance of Monica Gamboa today to consider whether or not they would instruct me to apply to you for a bench warrant in respect of that witness. I'm not saying that those instructions will necessarily follow. But I make that application, your Honour, given that although the witness has indicated that she would not attend since the subpoena has been issued of course the nature of the subpoena being what it is, I suppose there might have been some faint hope that she would still attend despite that'. 33 The adjournment was opposed by the appellant and the respondent reconsidered its position. The application under s 65 of the Evidence Act was then made, it being argued that "a refusal to give oral evidence by a person is sufficient to make that person 'unavailable' within the meaning of the Evidence Act" and that: "... it is not necessarily part of those steps being reasonable that we seek the extra step to be taken of her being arrested pursuant to a bench warrant. It's quite clear in my submission that it would be sufficient to take all reasonable steps to compel her to give evidence simply to have issued on the two occasions now subpoenas requiring her attendance to give evidence in these proceedings. And furthermore to have made the number of requests to her evident from the evidence in the five witnesses statements about this topic, to attend court to give evidence. So in my submission, for the reasons set out there and in addition the first subpoena, I submit that unavailability is established" 34 The relevant provisions of the Evidence Act were s 65 and the meaning of the expression "unavailability of persons" in Pt 2 of the Dictionary to the Act: 65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. … 4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 35 The respondent's submissions were accepted by the Chief Industrial Magistrate, who commented that: In some cases such a step may be considered necessary to satisfy the term "all reasonable steps". Each case must clearly be determined on its own facts. In this case the witness displayed an attitude of full cooperation with the prosecutor until the evening before the scheduled hearing in July 2006 when she contacted the solicitor for the prosecutor and described the alleged threat she had received. The witness has subsequently been subpoenaed a second time and has received a visit to her home by solicitors representing the prosecutor. I accept the evidence provide(sic) on behalf of the prosecutor that the witness has on more than one occasion made it clear that she regards herself and her children as being under threat, and will not obey the summons to attend court to give evidence. This is not a situation where a witness has simply indicated a disinclination to attend and give evidence for whatever reason. It is clear that the prosecutor could have sought the issue of a bench warrant to bring the witness before the court. It is a matter of speculation whether such a step would have caused the witness to overcome here(sic) alleged fears and cooperate. Given that she has twice disobeyed a subpoena to attend court there is no reason why that outcome should be regarded as likely. I am satisfied in all the circumstances that the prosecution has taken all reasonable steps to secure her attendance and to compel her to give evidence. 36 As we observed in the earlier judgment: 35 In assessing whether the prosecutor had established Ms Gamboa's unavailability, it ought not to be overlooked that there was no explanation given to his Honour, as to why a decision was made by the prosecutor not to seek the issue of a bench warrant. That decision must plainly have been made during the course of the hearing on 22 November when the application for a four-week adjournment was made, so that consideration could be given by the prosecutor as to whether a bench warrant should be sought. The application, however, was abandoned. This may explain why, in his reasons for decision, his Honour did not apparently consider, in the circumstances of the case before him, the available step of seeking a bench warrant, which the prosecutor ought reasonably to have taken. His Honour merely observed that Ms Gamboa appeared to have been fully co-operative, until the alleged making of a threat, on the evening before the hearing and that there was no reason why bringing Ms Gamboa before the Court would alter her refusal to co-operate. 36 The position before his Honour was that the prosecutor did not explain the failure to take the step of seeking a bench warrant, or other obvious and reasonable steps to which we have earlier alluded, and which were referred to in the authorities that his Honour dealt with, in order to secure Ms Gamboa's attendance at Court. 37 The steps to which we referred were those earlier set out. They were steps of the kind taken in the authorities, to which reference had been made, in the argument before his Honour below. Having in mind the test in s 65 of the Evidence Act, which required the prosecutor to establish that 'all reasonable steps' had been taken to compel Ms Gamboa to give evidence, or to secure her attendance, we concluded that his Honour erred in the conclusion reached and the appeal was upheld. The requirements of s 70(1) of the Crimes (Appeal and Review) Act in relation to the conduct of the proceedings on 22 November 38 The question which now requires an answer is, therefore, whether it has been established, as the appellant submitted, that the respondent's conduct of the proceedings below, on 22 November, satisfied the test in s 70(1)(d) that: ... because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. 39 As was conceded by the respondent, the charge which the appellant faced was a serious one. Ms Gamboa was the effective source of the charge. Without her evidence the prosecution had no prospect of a conviction. The respondent had known since 17 July of the threat Ms Gamboa claimed she had received and, since 26 October, that Ms Gamboa did not intend to answer the second subpoena. 40 On 22 November, having submitted, in initially seeking a four-week adjournment, that there was a possibility that Ms Gamboa would still attend and that there was a need to consider whether a bench warrant should be sought, the respondent then abandoned that application, and tendered Ms Gamboa's statements, arguing that her refusal to comply with the subpoenas earlier served and the discussions which officers of the respondent had had with her, was sufficient to establish her unavailability. This was despite the fact that other obvious steps, which might have altered Ms Gamboa's decision to refuse to attend to give evidence, had not been taken by the respondent. Nor had a bench warrant been sought. 41 That situation, it strikes us, was an unusual one. 42 Unless Ms Gamboa was 'unavailable', in the terms prescribed by the Evidence Act, if her evidence was to be relied on in the prosecution case the respondent was obliged to call her, so that the appellant could have the usual opportunity to test her evidence. 43 Despite knowing, since 26 October, that Ms Gamboa did not intend to answer the second subpoena, when the trial resumed on 22 November the respondent had not taken any steps to bring her before the Court. Indeed, the respondent had made not even made a decision as to what it should do, given that situation. 44 That an adjournment was then thought to be necessary was not surprising. There was no evidence that after Ms Gamboa's first refusal to comply with the subpoena served upon her the respondent had told her that she was at risk of being brought before the Court pursuant to a bench warrant; that if she refused to answer questions asked of her she would be in contempt of court and what the consequences of such a refusal could be. Even when she enquired as to why the second subpoena had been served, the evidence did not show that any such explanation was given. For her part, on the evidence, Ms Gamboa appeared to understand that she had a choice as to whether or not she responded to the subpoenas served upon her. It seems that the respondent took no steps to advise her of the correct position, or to have her brought before the Court. 45 The course which the respondent thus finally decided to take on 22 November, after the adjournment application was opposed, had the effect of acquiescing in Ms Gamboa's refusal to answer the Court's subpoena. This was despite what the subpoena advised. Both the subpoena served upon Ms Gamboa before the hearing in July and that served in October, each noted that 'If you do not comply with this subpoena you may be arrested'. In Ms Gamboa's case, however, the respondent elected not to pursue that course. There was no explanation given to the Court as to why that decision was made, or why seeking the issue of a bench warrant was not a 'reasonable step' to have been taken by the respondent, in the circumstances. It was certainly argued that it was not a necessary one. Even on appeal, however, there was no explanation given as to the course taken. 46 The situation confronting the respondent on 22 November involved a claim by a crucial witness in the prosecution of a serious charge, that in July, she had received a threat, over the telephone, to her safety and that of her family. This, she claimed, was why she refused to come to Court. That situation, of itself, suggested that a thorough explanation of the course finally taken by the prosecutor ought to have been given to the Court if justice was to be ensured. The respondent submitted that all that was necessary for it to have done, in order to demonstrate Ms Gamboa's 'unavailability' in the statutory sense, in the face of the claimed threat against her, was to have served the subpoenas and requested Ms Gamboa to give evidence. That fell well short of what this serious situation required. 47 The result of the prosecutor's conduct of the proceedings was that Ms Gamboa did not answer the Court's subpoenas and was not brought before the Court, even though her whereabouts were known. There was no suggestion of any practical difficulty confronting the respondent in contacting Ms Gamboa or bringing her before the Court. Yet there was no explanation given as to why it was decided not to seek a bench warrant. It was simply asserted, in order to establish statutory unavailability, that it was not necessary to seek a bench warrant , given the service of two subpoenas and the enquiries made of Ms Gamboa, as to her refusal to obey them. 48 We concluded, in the circumstances, that the respondent had not met the onus which fell on it to establish that 'all reasonable steps' available to secure Ms Gamboa's attendance, or to compel her to give evidence, had been taken. 49 In considering the way in which the proceedings at first instance were conducted, the respondent's case, that Ms Gamboa was subject to two relevant compulsions, must thus be considered. The first, was to answer the respondent's questions, in accordance with a duty imposed upon her by ss 238 and 238AA of the Workplace Injury and Management and Workers Compensation Act 1998. Ms Gamboa's statements were tendered on that basis. The second was to come to Court in answer to the subpoenas served upon her. There was no question that the respondent had a duty to call Ms Gamboa if it wished to rely on her evidence at the trial. That was why the subpoenas were served. 50 While Ms Gamboa answered the respondent's questions before the trial, she did not obey the Court's subpoenas, claiming by way of explanation to the respondent, that she had been threatened if she gave evidence. It was as the result of the way in which the respondent thereafter elected to conduct the proceedings that Ms Gamboa was not brought before the Court. 51 One consequence of the respondent's approach was that Ms Gamboa's claim that she had been threatened, was never examined before the Court. The evidence led by the respondent was that it had conducted some investigation of Ms Gamboa's claim. Yet, it was never suggested in the respondent's case that it had accepted that claim. To the contrary, initially on 22 November, the respondent's position was that Ms Gamboa might yet be persuaded to answer the summons. That view was also consistent with the fact that there was finally no evidence that in the various discussions which officers of the respondent had earlier conducted with Ms Gamboa, that she had ever been informed of her obligation to respond to the subpoenas, or the risks of failing to do so. 52 Why it was, in those circumstances, that the respondent decided on 22 November not to seek a bench warrant, was never explained. Instead, the course which the respondent determined to pursue, was simply to tender Ms Gamboa's statements, arguing that Ms Gamboa was unavailable, given her refusal to obey the Court's subpoenas. 53 On the evidence, while Ms Gamboa was plainly unwilling to give evidence, that she was 'unavailable', in the statutory sense, was not established. There were undoubtedly steps available to be taken by the respondent to secure Ms Gamboa's attendance and to compel her to give evidence. The respondent elected not to take them, without explanation of any difficulty which it faced in doing so, which would have made the steps not reasonable to be taken in the circumstances of this prosecution. 54 The result of the respondent conducting the proceedings as it did, was that Ms Gamboa's statements were never able to be tested by the appellant, who was convicted of a serious offence, despite the witness crucial to the prosecution case not being called by the respondent. To deprive the appellant of the opportunity of cross examining Ms Gamboa, because the respondent did not wish to pursue the steps available to it to secure her attendance and to compel her to give evidence, for reasons which it did not explain, was unarguably an unfair way in which to conduct this prosecution. 55 Contrary to the respondent's argument, that the Chief Industrial Magistrate admitted the statements Ms Gamboa had earlier made to the respondent, over the appellant's objections, upon being satisfied as to the requirements of s 65(2) of the Evidence Act, was not relevant to the question of her unavailability, on the statutory test in s 65(1). Unavailability had to be established before the receipt of Ms Gamboa's statements was determined. Perhaps the arguments advanced by the respondent and accepted by his Honour as to the admissibility of the statements was what led his Honour into error. 56 Whatever be the explanation, so far as the respondent's conduct of the proceedings on 22 November is concerned, we take the view that the circumstances were exceptional and that it is just and reasonable that an order as to the costs of the proceedings below, on and from that date, should be made in favour of the appellant. Orders 57 For the reasons given, we order that the respondent pay the appellant's costs of the proceedings below, on and from 22 November, as agreed or 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. 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