Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Selby v Mark David Coulbeck [No. 2] [2011] NSWIRComm 53 Hearing dates: 18 April 2011 Decision date: 18 April 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. I reject the application of the prosecutor. 2. The application is not a proper one to be considered in accordance with Rule 36.17 of the Uniform Civil Procedural Rules 2005. 3. I reiterate the orders of the Court of 1 April 2011. Catchwords: PROCEDURE - slip rule - Uniform Civil Procedure Rules 2005, Pt 36, r 36.17 - application by prosecutor that additional costs be taken into consideration - application to vary penalties - no variation to orders made 1 April 2011 - application dismissed with no order as to costs Legislation Cited: Occupational Health and Safety Act 2000 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Pt 36, r 36.17 Cases Cited: Carter v Wall [No 2] [2003] NSWLEC 94 revised - 27/08/2003 Inspector Ochoa v Mulder [2010] NSWIRComm 92 Inspector Selby v Mark Coulbeck [2011] NSWIRComm 36 Category: Procedural and other rulings Parties: Inspector Selby (Prosecutor) Mark David Coulbeck (First Defendant) Ai Chau Lam (Second Defendant) Representation: C Magee of Counsel (Prosecutor) WorkCover Authority of NSW (Prosecutor) Bartier Perry Solicitors (First Defendant) Zelden Solicitors (Second Defendant) File Number(s): IRC1677 of 2009 IRC1678 of 2009 EX TEMPORE Judgment 1On 1 April 2011, I delivered judgment in Inspector Selby v Mark Coulbeck [2011] NSWIRComm 36. Also, in this judgment, a second defendant, Ai Chau Lam, was also found guilty and a penalty was imposed against her. In that judgment I made the following orders: 1. In IRC 1677 of 2009, I find the defendant, Mark David Coulbeck, guilty of the offence as charged. 2. In IRC 1677 of 2009, the defendant is fined in the sum of $7,000 with a moiety to WorkCover Authority of New South Wales. 3. In IRC 1678 of 2009, I find the defendant, Ai Chau Lam, guilty of the offence as charged. 4. In IRC 1678 of 2009, the defendant is fined in the sum of $3,500 with a moiety to WorkCover Authority of New South Wales. 5. I order the costs of the prosecutor shall be shared equally between the defendants. Each defendant will therefore pay as costs to the prosecutor the further sum of $7,710.68. 2I have before me an application from the prosecutor in accordance with Rule 36.17 of the Uniform Civil Procedural Rules 2005 (which is commonly referred to as the "slip rule") to amend my judgment dated 1 April 2011. 3These two prosecutions were brought under the Occupational Health and Safety Act 2000 and arose out of the same incident. Both defendants pleaded guilty to a charge. Each defendant was separately represented. At the end of the hearing, the Court asked the prosecutor to quantify its costs to assist the Court in its consideration as to penalties especially given, in the circumstance, one of the defendants, Mr Coulbeck, was in bankruptcy and the other defendant, Ms Lam, had financial difficulties. 4Marks J in Inspector Ochoa v Mulder [2010] NSWIRComm 92 at [26] - [28] (see also: Cowdroy J in Carter v Wall [No 2] [2003] NSWLEC 94 revised - 27/08/2003 at [28]), observed that a court may take into account the costs and disbursements of the prosecution in its consideration as to the appropriate penalty for each breach. 5The Court received a number of submissions in each matter. There were prosecutor's submissions on sentencing, further submissions on sentencing as well as oral submissions and further supplementary submissions. 6I have given this application serious consideration. It is apparent, on the face of the judgment, that the Court took into account only one assessment of the prosecutor's costs in its consideration as to what was an appropriate penalty for each breach. The prosecutor, however, gave separate estimates as to its costs of prosecuting each defendant. 7The prosecutor now asks in the application of Rule 36.17 that, as the Court ordered the costs be shared equally, the costs order should be varied and an order given that each defendant pay the sum of $12,720.13 as costs. 8I do not intend to alter the orders of the Court made on 1 April 2011. I rely upon my published reasons which gave foundation for the level of each penalty ordered. Notwithstanding the fact that the Court did not take into account the prosecutor's assessment of further costs (in Ms Lam's matter), it is my view any amendment to the judgment would attack the Court's determination as to what was an appropriate penalty for each breach of the Occupational Health and Safety Act 2000. I, therefore, reject the application of the prosecutor. Further, I do not accept the application would be a proper one to be considered in the application of Rule 36.17. Orders 9I make the following orders: 1. I reject the application of the prosecutor. 2. The application is not a proper one to be considered in accordance with Rule 36.17 of the Uniform Civil Procedural Rules 2005. 3. I reiterate the orders of the Court of 1 April 2011. 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. Decision last updated: 28 April 2011