Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (No 3) [2011] NSWIRComm 59 Hearing dates: 9 March and 6 April 2011 (written submissions) Decision date: 13 May 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1 The prosecutor is to pay to the defendants monies to reimburse actual disbursements reasonably incurred by them in and about the defence of the proceedings and witness expenses reasonably incurred during the conduct of the proceedings. 2 The amount of such monies is to be assessed by the Court in default of agreement. Catchwords: COSTS - occupational health and safety proceedings - both defendants found not guilty in substantive proceedings - cost orders in criminal proceedings - self represented - defendants entitled to reasonable disbursements incurred in and about the defence and witness expenses - orders made Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Cachia v Hanes (1991) 23 NSWLR 304 Cachia v Hanes (1994) 179 CLR 403 Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (No 2) [2010] NSWIRComm 151 Inspector Wayne James v Justin James Ryan (No 2) [2010] NSWIRComm 63 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lawrence v Nikolaidis & Co (2003) 57 NSWLR 355 Category: Costs Parties: Inspector Anthony Nicholson (Prosecutor) Pymble No 1 (Defendant in IRC 621 of 2009) Silvio Molinara (Defendant in IRC 633 of 2009) Representation: Mr R Reitano of counsel (Prosecutor) WorkCover Legal Group (Prosecutor) Mr S Molinara in person (Defendant) File Number(s): IRC 621 & 633 of 2009 Judgment re costs 1The prosecutor, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales, brought proceedings against the defendants, Pymble No 1 Pty Ltd and Silvio Molinara, alleging certain breaches of the Occupational Health and Safety Act 2000. In judgment delivered on 12 November 2010, I found each of the defendants not guilty and reserved costs. (See Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151.) 2By arrangement with the parties, the question of costs was to be dealt with by way of written submissions. 3Each of the defendants was unrepresented and the carriage of the proceedings was conducted by Mr Molinara in his capacity as a director of the corporate defendant and in person in connection with the proceedings brought against him. 4In a document entitled "Application for Costs Order", Mr Molinara sought orders for costs on an indemnity basis. In addition, he sought orders for what he described as "special damages", "economic loss", "pecuniary damages" and disbursements. 5These latter orders were sought in some way to compensate the defendants for the financial and emotional burden imposed upon them by the proceedings, exacerbated by straitened financial circumstances and the fact that they could not afford legal representation. 6There was no quantification made of any of the amounts claimed. 7In written submissions in reply, the prosecutor pointed out that the Court only has before it the question of costs of the proceedings and this is the only matter that is the subject of the leave to apply that was granted. I agree with this submission. Whether and to what extent either or both defendants wish to maintain some other claim for the payment of monies apart from costs will be a matter for them, such claim obviously having to be made independent of the current proceedings before the Court. 8In terms of costs, I agree with the submission of the prosecutor that there is no basis for the awarding of indemnity costs having regard to the nature of the proceedings instituted by the prosecutor and the manner in which they were conducted before the Court. 9I recently had occasion to examine the circumstances in which a defendant who successfully defended a prosecution brought under the Occupational Health and Safety Act might be entitled to an order for costs in Inspector Wayne James v Justin James Ryan (No 2) [2010] NSWIRComm 63. Relying upon the judgment of the High Court of Australia in Latoudis v Casey [1990] HCA 59; (1991) 70 CLR 534, I concluded that a defendant who has been successful in having a criminal charge dismissed should in general terms be entitled to a costs order against the prosecutor. In exercising the discretion to award or refuse costs, the matter should be regarded by reference to the position of the defendant. (At [7]) I intend to take the same approach in the circumstances of these proceedings. 10There is nothing in the manner in which the defendants conducted themselves, on the evidence, that would disentitle them to an order for costs. Accordingly, I would propose to accede to the making of such an order, save for two matters. Firstly, there is no reason, as I have said, why costs should be ordered on an indemnity basis. Secondly, at all times the defendants were self-represented. I agree with the prosecutor's submissions that the defendants should be limited to recovering costs that reflected monies actually disbursed in and about the defence of the proceedings and witness expenses incurred during the conduct of the litigation. Furthermore, I agree with the prosecutor's submissions that the defendants are not entitled to any amount to compensate them for the time and effort spent in the preparation and conduct of the proceedings other than the actual disbursements of witness expenses, which I have indicated. For completeness, I note that the prosecutor cited, in aid of this submission, Cachia v Hanes (1991) 23 NSWLR 304, Cachia v Hanes (1994) 179 CLR 403 and Lawrence v Nikolaidis & Co (2003) 57 NSWLR 355. Orders 11Accordingly, I make the following orders: 1) The prosecutor is to pay to the defendants monies to reimburse actual disbursements reasonably incurred by them in and about the defence of the proceedings and witness expenses reasonably incurred during the conduct of the proceedings. 2) The amount of such monies is to be assessed by the Court in default of agreement. ********** 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: 13 May 2011