Industrial Court of New South Wales CITATION: Inspector Michael Dall v Brambles Australia [2006] NSWIRComm 308 Prosecutor: PARTIES: Inspector Michael Dall Defendant: Brambles Australia FILE NUMBER(S): IRC5608 of 2004 CORAM: Kavanagh J CATCHWORDS: OHS – Defendant's application for costs – Prosecution dismissed – No Agreed Statement of Facts – Applicable Rules – Discretion – Apportionment – No special circumstance – Order for costs LEGISLATION CITED: Occupational Health and Safety Act 1983 s10, 28(b) Criminal Procedure Act 1986 s257C CASES CITED: Latoudis v Casey (1990) 170 CLR 534 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor [2005] NSWIRComm 454 HEARING DATES: 15/09/06 EXTEMPORE JUDGMENT DATE: 09/15/2006 Prosecutor: Mr R. Reitano of counsel Solicitors: WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr B. Collins QC with Mr B. Cross of counsel Solicitors: Ms G. Barker Allens Arthur Robinson JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J 15 September 2006 Matter No IRC 5608 of 2004 INSPECTOR MICHAEL DALL v BRAMBLES AUSTRALIA Prosecution under s10(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2006] NSWIRComm 308 1 The defendant makes an application for costs. It is opposed by the prosecution. Judgment was delivered on 7 July 2006. There has been an amendment to [158] and Order 1 of that Judgment. The charge brought under s10 of the Occupational Health and Safety Act 2000 was found proven but was dismissed on the application of the defence raised by the defendant under s28(b) of the Occupational Health and Safety Act 2000. 2 The power to order costs is discretionary (s257C of the Criminal Procedure Act 1986). 3 In a successful prosecution, costs may be awarded to the prosecutor on the basis that "costs follow the event" (Latoudis v Casey (1990) 170 CLR 534). A successful defendant is also entitled to an order for costs. 4 As to costs, the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor [2005] NSWIRComm 454 considered the issue saying at [35]: . . . costs may be apportioned in certain circumstances. The relevant general principles in that regard are contained in the judgment of Toohey J in Kimberley John Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 48, subject to the qualifications in Cretazzo v Lombardi (1975) 13 SASR 4, namely: (a) Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order; (b) Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which it has failed; (c) A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law; and (d) Notwithstanding the above, the interests of justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case. 5 The prosecution submits the defendant should not have costs or part thereof as all elements of the charge were found proven before the application of the defence. The prosecution further submits as there was a failure by the defendant to agree even in part to an Agreed Statement of Facts, that failure effected the hearing of the charge in both time and the expenditure of costs. 6 The defendant submitted the prosecution failed to establish all particulars it relied upon and in its proffered Agreed Statement of Facts went beyond those particulars. Consideration 7 A court is assisted in its consideration of issues by an Agreed Statement of Facts particularly in complex litigation such as was involved in this prosecution. 8 There was, however, no Agreed Statement of Facts placed before the Court. Such a document would have had a twofold purpose: (a) to assist the Court in understanding the complexity of the matter; and (b) may have cut down the time of the Court spent in this litigation. 9 While the prosecution requested from the defendant a consideration as to an Agreed Statement of Facts and proffered a draft thereof, from correspondence I have read there was no such consideration given by the defendant to assist the court with Agreed Facts. 10 It is not in issue that the defendant was entitled to maintain its right to silence as enunciated by Toohey J in Latoudis. 11 The issue is whether the Court would have been better served if the preparation of such a document was given consideration by the defendant and whether the prosecution should be given some consideration for this failure in any costs order. 12 The Court would have been assisted, in this complex matter, by an Agreed Statement of Facts but I accept it would not have altered, in any way, the manner in which this litigation was conducted. I accept this matter was litigated in an expeditious manner by both the prosecution and the defendant. 13 The prosecutor must establish there are "special circumstances" created (given the authority referred to above) to oppose any order for costs or seek part thereof. 14 I do not believe that I should make my decision as to costs, in a circumstance where only two particulars of the charge were not established. 15 While noting the prosecution established the charge and all elements of the offence, the charge was successfully defended by the application of the defence under s28(b) of the Occupational Health and Safety Act 2000. I do not accept this circumstance creates the special circumstances required for varying the usual order that costs follow the event nor that there is reasonable circumstances for apportionment. 16 In such a circumstance, I order: 1. The prosecution should pay the defendant's costs as agreed or assessed. Leave to apply if no agreement reached. 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