Industrial Relations Commission New South Wales Medium Neutral Citation: Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 113 Hearing dates: Written Submissions: 1/7/2011; 14/7/2011 Decision date: 19 August 2011 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President; Kavanagh J; Staff J Decision: The respondent shall pay the appellant's costs of the proceedings before Boland J in Matter No IRC 3547 of 2006 and this appeal as agreed or assessed. Failing agreement, this matter may be referred to the Registrar for assessment. Catchwords: OCCUPATIONAL HEALTH & SAFETY - APPEAL - COSTS - appeal from the decision of Boland J - whether applications for order (charges) failed to plead the acts or omissions said to constitute breach of Occupational Health and Safety Act 2000 - whether charges were specified relevant measures - held: charges defective by reason of their failure to plead relevant acts or omissions - held: trial judge fell into error when convicting the appellants on charges that failed to identify either expressly or by implication the Corporation's relevant acts or omissions - appeal allowed - issues regarding costs at first instance and on appeal - held: just and reasonable to make order for costs in favour of the appellant for first instance and appeal proceedings - respondent to pay appellant's costs as agreed or assessed. Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Industrial Relations Commission Rules 1996 Cases Cited: Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 14 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Inspector James v Ryan (No 2) [2010] NSWIRComm 63 Inspector James v Ryan (No 4) [2010] NSWIRComm 155 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Latoudis v Casey (1990) 170 CLR 534 Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 Miller v Miller (1978) 141 CLR 269 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Ling (1996) 90 A Crim R 376 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Toll Transport Pty Ltd v Transport Workers' Union of New South Wales (No 2) [2010] NSWIRComm 97 Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited [2005] NSWIRComm 454; (2005) 147 IR 329 Category: Costs Parties: Western Freight Management Pty Ltd (Appellant) WorkCover Authority of New South Wales (Respondent) Representation: G J Hatcher SC with S R Coleman of counsel (Appellant) S Crawshaw SC with M P Cahill of counsel (Respondent) C J Boyd Solicitors (Appellant) WorkCover Authority of New South Wales (Respondent) File Number(s): IRC 1237 of 2009 Decision under appeal Citation: Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Before: Boland J, President File Number(s): IRC 3547 of 2006 Judgment 1In Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68, the Full Bench considered an appeal by Western Freight Management Pty Ltd ("the appellant") from two judgments of Boland J, President. In those judgments, his Honour convicted and sentenced the appellant for offences under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"): Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 and Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124. 2Following the High Court judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (" Kirk " ), the appellant amended its grounds of appeal in order to rely on issues considered in Kirk relating to the proper construction of s 8(1) of the Act by which the appellant contended that the trial judge had erred in law by failing to find that the charges in the matter were outside the scope of s 8(1) of the Act. 3On appeal, t he Full Bench upheld the appeal and quashed the orders made at first instance. 4As to the question of costs, the Full Bench ordered that the appellant had 14 days from the date of the decision to file and serve written submissions on the issue of costs, with the respondent having a further 14 days in which to respond. Costs were to be determined on the papers unless a party wished to be heard orally. The parties subsequently filed written submissions regarding costs and sought no such hearing. This judgment concerns the resolution of the question of costs of the proceedings. SUBMISSIONS Appellant's submissions on costs 5The appellant's submissions may be summarised as follows: a The appellant has been wholly successful in its appeal. It has, from the earliest point of the hearing, complained of the lack of particularisation of measures it could and should have taken to avoid relevant risk. b Despite the invitation to the respondent to provide particulars, and to amend, neither course was adopted. The affidavit in support was found to have been similarly unrevealing. c The failure by the respondent to specify measures, or a risk, despite the invitation, led the trial judge into error in finding the defendant guilty of charges which did not contain measures specified by the respondent and which were not identified during the trial. The defendant had no opportunity to consider or defend the charges by the provision of relevant and specific evidence. The measures which the defendant was said to be required to take emerged first in the trial judgment. d The Full Bench found that: i. There were no measures at any time identified to the appellant prior to conviction; ii. The failure by the prosecutor to address the appellant as to the measures which were required to be taken constituted procedural unfairness of such gravity as to point against a retrial. e The principles that apply to the awarding of costs in an occupational health and safety prosecution have been found by this Court to be those which apply in civil proceedings: Inspector James v Ryan (No 4) [2010] NSWIRComm 155 at [24]. The Full Bench in that case cited as authority the two recent Full Bench decisions of Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 and Toll Transport Pty Ltd v Transport Workers' Union of New South Wales (No 2) [2010] NSWIRComm 97. Those principles, so far as relevant, are: i. Costs are at the discretion of the Court which has power to determine by whom and to what extent costs are to be paid: s 181(1) of the Industrial Relations Act 1996; ii. The powers and discretions of the Court under s 181(1) are to be exercised in accordance with Pt 27 of the Industrial Relations Commission Rules 1996; iii. The discretion must be exercised judicially; iv. Costs are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings. The order is not made to punish the unsuccessful party; v. The 'usual approach', the 'general position' or 'ordinary approach' is that costs will follow the event. vi. A successful litigant is, prima facie , entitled to an award of costs, unless there are special circumstances warranting a departure from the rule; vii. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the Court which powers should be liberally construed; viii. There can be no allegation of disentitling conduct by the appellant in this matter. The appellant at the outset raised the issue of the lack of specificity of the measures in the charge (particulars), and the risk alleged. It has fully participated in the hearing and has dealt with the charge as best it could in the circumstances. It has succeeded in its appeal on these grounds, and the Court has not found it necessary to deal with the other grounds of appeal. f In relation to the Notice of Contention filed by the respondent, the appellant was also successful. g Where a successful appellant is entitled to costs, only misconduct on its part would disentitle it: McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [69] and [70]. None of the circumstances discussed by his Honour arose in the matter against the appellant. h In the event, the appellant had to defend against accusations with a global range and which did not contain specific measures, forcing it to adopt a general and wide ranging defence, calling video evidence, obtaining access to premises now controlled by a competitor, re-enacting the events, interviewing Star Track Express staff, all with resultant costs. i The appellant seeks its costs of the hearings at first instance and of the appeal. Respondent's submissions on costs The respondent's submissions may be summarised as follows: a The respondent submitted that the appellant should receive costs for the appeal and its costs for the proceedings at first instance should be rejected. Position taken by the appellant on particulars b The position taken by the appellant on particulars pre-trial and at the trial was relevant to the question of costs. The appellant's submissions on costs were misleading in relation to the position taken on particulars. c First, it should be noted that pre-trial there was no request made by the appellant for further or better particulars. d The appellant, in its submissions, suggested that "it has, from the earliest point of the hearing, complained of the lack of the particularisation of the measures it could have taken to avoid relevant risk"; and that there was an invitation by the appellant to the prosecution to provide particulars, and to amend; and "The appellant at the outset raised the issue of the lack of specificity of the measures in the charge (particulars) and the risk alleged". The only reference given to support these propositions was in Western Freight Management v Insp Patton at [55] and [56]. e The appeal decision, at [55] and [56], refers to the opening of the respondent at the trial. It was clear that the Full Bench found that the opening failed to adequately identify any measures. It was clear from the appeal decision that this was why the opening was cited by the Court at [55] and [56]. However, it was also apparent from the opening that there was no complaint by the appellant at the trial about inadequate particularisation or identification of measures. Nor was there any invitation by the appellant to the respondent to provide particulars or to amend the measures pre-trial or at the trial. f Rather, the appellant's complaint during the opening concerned the identification of the risk. This resulted in the respondent, in the opening, expressly identifying the risk. After the risk was expressly identified and confined, there was no further complaint during the trial by the appellant about the particularisation or identification of the risk. Indeed, it was the risk expressly identified by the respondent in the opening that the trial judge found in his decision had to be proved: Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 at [68]. The appeal decision found that the trial judge at [37] and [58] had identified the risk. g It was accepted that at the end of the trial in its final submissions the appellant complained that particular 4 was "entirely lacking in the particularity necessary to identify a criminal breach of duty". However, it was particular 4 that the trial judge struck out. h Additionally, and by way of contrast, in relation to the other particulars in the charge, the appellant made no complaint in its final submissions. Rather, the appellant relied on those particulars to confine the respondent's case by complaining that the respondent was making submissions that went beyond the terms of the particulars. The appeal i The appellant initially filed an application for leave to appeal and appeal on conventional grounds other than the repetition of its jurisdictional point, rejected by the trial judge at first instance, that an employer could only be held liable under s 8(1) if the risk was reasonably foreseeable or, alternatively, the defence of honest and reasonable mistake of fact is available as a defence. j It was only in the appeal that the appellant suggested that particulars 1 to 3 did not sufficiently particularise or identify measures or that, after the opening at the trial, there was any problem with the particularisation or identification of the risk. The appellant also submitted that the subject charge was defective on its face and defective in that it did not expressly rely upon s 31 of the Act. k The reasoning of the Full Bench in the appeal decision gives rise to several matters that are pertinent to the question of costs: i. The appeal has been allowed on the argument relating to failure to identify measures alone; ii. The appellant failed in its argument that the charge was defective on it's face. By adopting the reasoning in Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54, the Full Bench found that the charge satisfied the pre-conditions to the exercise of the Court's jurisdiction and the defects in the charge could have been remedied, although, as a matter of discretion, this was not allowed (at [4] and [43]); iii. The appeal did not succeed in relation to the argument relating to failure under s 31 of the Act; iv. The appeal did not succeed in relation to the argument relating to failure to identify risk. As set out above, the appeal decision found that the trial judge at [37] and [58] had identified the risk specified by the respondent in the opening. Costs of the proceedings l This Court has a broad discretion to award costs which is governed by the primary consideration whether it would be just and reasonable in the circumstances to award costs to the defendant: WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited [2005] NSWIRComm 454; (2005) 147 IR 329 at [5] ("Leighton Contractors"). The approach adopted in civil proceedings may properly provide a guide to the exercise of this broad discretion: WorkCover Authority of NSW (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 351 at 368 [58], and see also Oshlack v Richmond River Council (1998) 193 CLR 72 at [82] per McHugh J. m Further, the High Court in Latoudis v Casey (1990) 170 CLR 534 accepted that the general rule that costs follow the event may be fettered by the conduct of the defendant, whether that conduct occurs before or after the criminal charges are brought: see Latoudis per Mason CJ at 544, Toohey J at 565-565 and McHugh J at 569. n Having regard to the appellant's conduct in the proceedings, the Full Bench should not disturb the trial judge's orders as to payment of the costs of those proceedings. This is because the appellant failed to raise arguments about inadequate identification or particularisation of measures in the particulars, that the trial judge found were made out, at any stage of the proceedings. The appellant conducted its case on appeal on a substantially different basis to the manner in which it conducted its case at trial. o By its silence, the appellant acquiesced in the conduct of the proceedings below and thereby contributed to the continuation of the proceedings during which the inadequacies in the charges could have been remedied. Such conduct by the appellant should have consequences for it in terms of bearing the costs of the proceedings. p The present circumstances are analogous to the imposition of adverse cost consequences upon a defendant who unreasonably prolongs the proceedings by failing to disclose aspects of its defence at the pre-trial stage, notwithstanding that such conduct was an exercise of the right to silence: R v Ling (1996) 90 A Crim R 376 at [54]-[56] and cf. Inspector James v Ryan (No 2) [2010] NSWIRComm 63 at [24]-[32] and [54] (confirmed on appeal in Inspector James v Ryan (No 4) [2010] NSWIRComm 155). q For these reasons, the trial judge's order as to costs should not be disturbed. Costs of the appeal r It is clear that the appellant has succeeded on appeal on a point not taken below. s Further, for the reasons given above, by its conduct in the proceedings below, the appellant has significantly contributed to the necessity of the appeal process: Miller v Miller (1978) 141 CLR 269 at 276-277 and Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 378. t It is a common result that an appellant does not receive the costs of an appeal where it has succeeded in an appeal by raising an argument not raised at first instance. This was the subject of discussion in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at 123. u There should be no order that either the appellant or the respondent pay any costs of the appeal. v In the alternative, the appellant should not receive the full costs of the appeal, given that it did not succeed on the basis of submissions which represented a considerable portion of the time and costs expended in the appeal submissions. Apart from the original grounds of appeal, which were not the subject of the appeal decision, the appellant did not succeed in relation to the following discrete matters: i. the submission that the subject charge did not disclose an offence and was, therefore, defective on it face; ii. the submission that the appellant failed to specify s 31 of the Act; and iii. the submission that the appellant failed to plead the risk. CONSIDERATION 6In the present proceedings, the appellant was found guilty, convicted and sentenced for offences under s 8(1) of the Act. On appeal, it was held that the trial judge erred in law. The Full Bench found that, at trial, no acts or omissions, or sets of acts or omissions, necessary to specifiy the requisite contravention were identified by the prosecutor at any point of the proceedings until judgment and that "upon the statements of law in Kirk ", the appeal should be upheld and the convictions of the appellant quashed. 7It is useful to set out some passages of the appeal judgment from ([55] - [60]): 55 Thus, the Statement of Offence bears similar defects to that found in Lorenzo . The point of departure, however, concerns whether particularisation of requisite acts or omissions were given during the trial. There was not in this matter an identification or adequate statement by the respondent of the measures required to be taken (either as ultimately found by the trial judge or otherwise) at any stage during the course of the trial. 56 The opening address of the prosecutor and the discussion during the opening illustrates the trial was commenced by the defendant on the basis of particular 1 (having a global range). The only identifiable measures introduced by the prosecutor were those already particularised: that of a traffic management plan and a risk assessment in relation to traffic and pedestrian management at the site prior to the incident, in particular, again with respect to line haul vehicles with trailers attached when reversing to the loading docks... 57 The affidavit in support provides no further assistance to the respondent. It does not provide evidence of specific measures that the appellant should have taken so that it could defend the charge. 58 As we earlier observed, the trial judge did find an identified risk. His Honour simply made findings as to measures which the appellant should have taken to avoid the risk to its employees. 59 At para [134] in the s 28 defences section of the judgment, the trial judge says: [134] The submission for the defendant was that as the risk was so well known, there were no other effective measures the defendant could have put in place to ensure that Mr Lloyd would not have placed himself in the area to the rear of Mr Norman's trailer. The trial judge then proceeded to outline at least three measures that could have been taken to obviate the risk (at [135], [136] and [141]): [135] ...A proper traffic and pedestrian management plan provided and maintained by the defendant was one measure that could have been adopted and would have removed or minimised the risk. Within the plan the defendant could have ensured that reversing procedures were kept to the absolute minimum, and that any unnecessary reversing manoeuvres eliminated. [136]...where it was necessary for drivers to reverse, steps could have been taken to ensure that there were no pedestrians in the vicinity of the rear of the reversing trailer. This could have been achieved by a policy and practice of excluding employees who were not required to be located in the area, from being between the loading docks and the rear of the trailer [141] Although there was dispute on the evidence as to whether STE's policy of sounding the vehicle's horn and using a spotter was, in fact, implemented at the Waverley Drive depot after the incident and prior to the move to the new STE Wollongong depot, I am satisfied that the procedure outlined in the evidence was a step that would have significantly decreased, if not eliminated, the risk. 60 None of those measures had been specified by the respondent during the trial as particulars of the charges, and emerged for the first time in the trial judgment. 8Further, in paragraphs [74] - [81] and [83] of the appeal judgment, the Full Bench made the following findings: 74 We note that the appellant contended that the charges were invalid because they did not state an identifiable risk. It is, however, unnecessary for us to further consider that matter (or the appellant's other grounds of appeal) because of the conclusion we have reached in this matter. 75 The appellant also raised some matters in relation to measures it had raised in its defence that were rejected at first instance. Again, it is unnecessary to fully assess those matters in light of the conclusions we have reached. 76 We have found that the particulars of the charges in trial at first instance did not disclose to the appellant the specific measures the defendant should have taken to obviate the risk. 77 Here there has been a procedural unfairness. The trial judge fell into error when convicting the appellants of the offences in circumstances where the charges failed to plead, either expressly or by implication, the relevant acts or omissions. 78 As this Court said in Lorenzo, the need for the provision of appropriate particulars has its roots in the requirements of procedural fairness. A defendant must be fairly informed of the charge it has to meet. Further, the structure of the Act requires that a defendant knows what measures it is alleged it did not take so that it could properly address available defences. 79 In this matter, however, we have found no acts or omissions, or set of acts or omissions, necessary to specify the requisite contravention, were identified to the appellant at any point in the proceedings, up to the conviction judgment. Upon the statements of law in Kirk, this should result in the appeal being upheld and the convictions of the appellant quashed (along with the penalties imposed upon that conviction). 80 We have had regard to the factors identified in Lorenzo as to whether orders should be made for a re-trial. We have concluded that there will be no re-trial. The Full Bench in Lorenzo decided to order a re-trial based upon a number of factors (at [87] to [89])... 81 There are, however, significant differences in this matter with respect to each of the above, as follows: a) The offences were proven upon the basis of findings that the appellant had failed to take certain measures (to obviate or avoid an identified risk). These were not, however, measures which were at any relevant time identified to the appellant prior to conviction. Hence, the findings at trial that the offences were proven can offer no proper support for a re-trial; b) It is not a safe conclusion that the evidence in any further trial would be substantially the same as the trial below, particularly with respect to defences. In Lorenzo because certain measures were identifiable to some degree on the evidence adduced at trial, it was considered likely a re-trial would result effectively in the same evidence being adduced. Here none of measures found by the trial judge were identified during the trial and, hence, no realistic conclusion can be reached that the same evidence might be adduced by the prosecution to establish specified measures or that fresh evidence might not be called by the defence in resistance to any amended charges; c) There would be significant delay between the incident which took place in December 2004 and a further hearing (now well over seven years later); and d) The failure by the prosecutor to address to the appellant the measures which were required to be taken constituted procedural unfairness of such gravity as to point against a re-trial. 83 In Lorenzo, the Court determined there was a belated (unfair) identification of the measures the defendants should have taken. There was, however, a correlation between those measures, as specified, and those found by the trial judge, so a proper assessment could be made that the prosecutor would have reasonable prospects in a new trial. This was not the case here. There was no identification of measures which were found established by the trial judge so as to permit such an assessment. This factor also contributes to our conclusion against the granting of a re-trial. 9We were referred to various authorities discussing the principles applicable to the determination of costs in these proceedings. We consider the appropriate principles are stipulated in Leighton Contractors, where the majority stated (at [5] - [13]): 5 In our view the judgments of the majority of the High Court in Latoudis v Casey are authority for the following principle: in ordinary circumstances, it will be just and reasonable to make an order for costs in favour of a defendant against whom a prosecution has failed. Such an order should not be refused because the charge is serious; or because the informant acted reasonably in instituting the proceedings; or on the basis that the informant might be deterred from laying charges in the future. The details which were relevant to that particular case should not obscure the primary consideration governing the exercise of the broad discretion to award costs: whether it would be just and reasonable in the circumstances to award costs to the defendant. Each member of the majority, in separate judgments, clarified this underlying rationale, as noted by Boland J. 6 In our view, it is not permissible to extrapolate from this broad principle (or from the circumstances of Latoudis itself) a mechanical procedure based on the number of charges laid and the outcome in relation to each one. Latoudis v Casey does not authorise the Court to divide criminal prosecutions into component parts - whether charges or particulars of charge - in an effort to allocate discrete "successes" or "failures" before awarding costs based on which party has the most "successes". 7 There is no fine art in determining whether a prosecution has failed: in Latoudis v Casey , it clearly had; in each of the present cases, which resulted in findings of guilt against Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd, it clearly had not. Nor does O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 128 IR 158 compel any different conclusion. In that case, the prosecution was successful (in that three of five charges were proven) and the prosecutor was awarded costs which were then apportioned upon the uncontroversial line of authority stemming from Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) and Anor v Lane Industries Pty Ltd and Ors (1993) 26 IPR 261, Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors (1986) ATPR 48, and Cretazzo v Lombardi (1975) 13 SASR 4. The defendant was not awarded its costs (or any apportionment) in relation to the two charges which were not proven on the basis that - in relation to those charges - it was "successful". 8 The appeals from the discretionary costs orders of Schmidt J are governed by the frequently-cited principles in House v The King (1936) 55 CLR 499 at 505. In our view, the exercise of discretion by Schmidt J, in awarding Leighton Contractors Pty Ltd 75% of its costs in matter no. IRC 6072 of 2004, and in awarding Lindores Crane & Rigging (Aust) Pty Ltd 80% of its costs in matter no. IRC 6274 of 2004, miscarried for several reasons. First, her Honour plainly failed to take into account the sentencing proceedings (in which both of the respondents were penalised) in her assessment of appropriate costs orders. 9 Secondly, and more significantly, the costs orders were based in part on an error of principle in relation to the significance of particulars in criminal cases. The precise manner in which Schmidt J made her calculations remains unclear. It is reasonably clear, however, that her Honour was influenced by the "success" or otherwise of various particulars. In relation to the costs order in the first appeal, for example, Schmidt J held (at [56]): The four charges brought in relation to 29 November failed entirely. Only one aspect, albeit an important one, of the charge in relation to 28 November succeeded. 10 Similarly, in relation to the costs order in the second appeal, Schmidt J observed at [86] that "....three of the four aspects of the charge relating to failure to ensure that the crane was adequately erected and commissioned, were all dismissed." 11 The significance, or function, of particulars in criminal charges was considered by the Criminal Court of Appeal (in a different context) in Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481. Gleeson CJ (with whom Ireland and Bruce JJ agreed) stated (at 484): Although the decision of Talbot J was discretionary, the basis upon which he exercised his discretion emerges clearly from the stated case, and the documents attached to it, and was not in dispute in argument. It was that his Honour took the view, as a matter of principle, that when, in a criminal proceeding, the prosecution fails in its case in chief to establish a particular of the offence charged, then it should not be permitted to seek to rely on material which later emerges in support of that particular. This view, with respect, is heterodox. It involves a misunderstanding of the nature and function of particulars. In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged. It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons ( Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16). There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal ( VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997)). 12 Particulars provide an accused with fair notice of the case to be met, but do not, of themselves, constitute the essential elements of the offence charged: failure to establish a particular is not fatal to a prosecution. Nor should failure to establish a particular - in circumstances where the charge is ultimately proven - result in a more favourable result in relation to costs for the defendant. 13 Finally, although her Honour was not bound by the single judgment of Walton J, Vice-President, in O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (which was approved by the Full Bench although the costs order was not in issue), it was open to Schmidt J to consider it. However, we consider that Schmidt J misapplied O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) and the authorities it relies upon in relation to apportionment. The very basis of the costs order in O'Sullivan was the principle that in a successful prosecution, costs may be awarded to the prosecutor on the basis that "costs will follow the event" but that such costs may be apportioned - or reduced - in certain circumstances. In that case, those circumstances included the fact that two charges - which pertained to discrete matters, easily divorced from the general proceedings - failed. At first instance in these proceedings, Schmidt J declined to order costs in favour of the successful prosecutor, awarded costs in favour of the guilty defendants, apportioned the defendants' costs without any clear discussion of the basis upon which she arrived at her calculations, and yet purported to be following O'Sullivan . In our view, it is clear that, rather than following O'Sullivan , her Honour misapplied it. 10In our view, it is just and reasonable to make an order for costs in favour of the appellant for both the trial and these proceedings. There is not, to adopt a phrase from the submissions of the appellant, any "disentitling" conduct on the part of the appellant as would warrant a departure from the ordinary rule as to costs in criminal proceedings within this jurisdiction, namely, an order for costs will ordinarily be made in favour of a defendant against whom a prosecution has failed. 11The reasons for that conclusion may be readily discerned from the appeal judgment itself. The appellant was wholly successful in overturning its conviction on appeal. The appellant succeeded in establishing that, consistent with the judgment in Kirk, none of the measures which were foundation to the conviction were, in fact, specified in the charges (or particulars thereof) laid against the defendant. Further, these acts or omissions (necessary to specify the requisite contravention) were not identified by the respondent at any point in the proceedings. 12It is true that the judgment of the High Court in Kirk was delivered after the trial, and that our conclusions were predicated upon the amended appeal brought in that respect. However, it is difficult to see how the dictates of justice are served by depriving the appellant the costs of both sets of proceedings in circumstances where, according to the law, and upon the findings made on appeal, it did not receive a procedurally fair hearing because it was deprived of such particulars as would have permitted it to defend the prosecution with those legal precepts. 13As to the particular issues raised by the respondent we find: 1. We do not accept that the appellant failed to raise the issue of the inadequacy of particulars, vis vis measures and risk, at the trial. 2. On appeal, we do not accept the respondent's submissions that the appellant failed in its original appeal grounds or on the issue of failure to properly identify a risk. It was simply unnecessary, given the findings made by the Full Bench, to decide those issues on appeal. 3. A finding was not made that the charges were defective on their face, but we would have thought, given our overall findings on the appeal, this could not constitute a basis to modify an ordinary order as to costs of the appeal. We also note that the respondent failed in its Notice of Contention. ORDERS 14We order that the respondent shall pay the appellant's costs of the proceedings before Boland J in Matter No IRC 3547 of 2006 and this appeal as agreed or assessed. Failing agreement, this matter may be referred to the Registrar for assessment. ********** 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: 19 August 2011