Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126 Hearing dates: 28 March 2011 Final Submissions 4 August 2011 Decision date: 22 September 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the prosecutor is allowed. 2. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the defendant is dismissed. 3. Costs of the defendant of the prosecutor's Notice of Motion in Matter No 1259 of 2009 are reserved. 4. There shall be no order in favour of either party for costs on the defendant's Notice of Motion in Matter No 1259 of 2009. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - practice and procedure - Notice of Motion by defendant to declare invalid/dismiss/quash Application for Order issued under s 8(1) of the Occupational Health and Safety Act 2000 - legal requirements within pleadings in respect of applications for order - principles - original application for order held to identify essential elements of the offences - identification of risk - finding essential elements of offence pleaded - Notice of Motion of defendant dismissed Notice of Motion by prosecutor for leave to further particularise acts or omissions of defendant to establish breach - application for order consistent with principles in authorities - Notice of Motion of prosecutor for leave to amend Application for Order allowed COSTS - s 8(1) Occupational Health and Safety Act 2000, Industrial Relations Commission Rules 1996 (repealed), r 217B - consideration of costs applications by prosecutor and defendant - general rules as to costs - costs of defendant on application of prosecutor reserved Legislation Cited: Occupational Health and Safety Act 2000 Criminal Procedure Act 1986 Industrial Relations Act 1996 Cases Cited: De Romanis v Sibraa [1977] 2 NSWLR 264 G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 John L. Pty Ltd v Attorney-General for the State of New South Wales (1987) 163 CLR 508 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 Latoudis v Casey [1990] 170 CLR 534 Lodhi v The Queen (2006) FLR 303 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Smith v Moody [1903] 1 K.B. 56 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Category: Interlocutory applications Parties: Inspector Doug Rolland (Prosecutor) Coles Supermarkets Australia Pty Ltd (Defendant) Representation: M K Scott of counsel (Prosecutor) P E McDonald SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC No 1259 of 2009 INTERLOCUTORY Judgment 1On 24 August 2009, WorkCover Authority of New South Wales ("the prosecutor") filed an Application for Order under the Occupational Health and Safety Act 2000 ("the Act") asserting a breach of s 8(1) of the Act by Coles Supermarkets Australia Pty Ltd ("the defendant" or "Coles"). The Application for Order, alleging a breach of the Act by the defendant, reads as follows: I, Inspector Doug Rolland, of the WorkCover Authority of New South Wales, Level 11, 67 Albert Avenue, Chatswood in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter allege that COLES SUPERMARKETS AUSTRALIA PTY LTD (ACN: 004 189 708) with its registered address at Wesfarmers House, 11 th Level, 40 The Esplanade, Perth, in the State of Western Australia, ("the defendant"), being an employer, on 29 August 2007, at Coles Manly Peninsula store, Coles Supermarkets Australia Pty Limited, corner Wentworth Street and Darley Road, Manly in the State of New South Wales FAILED TO Ensure the health, safety and welfare at work of all its employees, and in particular, Gloria Schulz and Ms Van Stratum, contrary section 8(1) of the Act. In particular: a) The defendant failed to carry out any or any adequate risk assessment as to the storage and retrieval of goods and/or materials from the roof access room; b) The defendant failed to provide a safe system of work in relation to the storage and retrieval of goods and/or materials from the roof access room; c) The defendant failed to adequately instruct its employees as to risks to health and safety associated with the storage and retrieval of goods and/or materials from the roof access room; d) The defendant failed to adequately supervise its employees in relation to the storage and retrieval of goods and/or materials from the roof access room; e) The defendant failed to ban or prohibit employees from storing goods and/or materials in the roof access room; f) The defendant failed to restrict employees accessing the roof access room; g) The defendant failed to ensure that the roof access room was safe and without risks to employees' health and safety. As a result of the defendants' failure, its employees, and in particular Gloria Schultz and Nelleka Van Stratum, were placed at risk of injury, and Gloria Schultz suffered injury. 2On 22 March 2010, the prosecutor filed a Notice of Motion in the above matter seeking: That leave be granted to the Applicant to amend the particulars of the Application for Order in accordance with Annexure A hereto. The Notice of Motion provided the following grounds and reasons upon which it is said the Application for Order should be amended: Following the recent decision of Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 ( "Kirk" ), the Applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the Amended Application for Order. 3On 26 March 2010, the defendant filed a Notice of Motion in the above matter seeking: 1. A declaration that the order made on 25 August 2009 pursuant to s246(1) of the Criminal Procedure Act 1986 (NSW) as applied by s168 of the (NSW) (the Order), is invalid or void. 2. A declaration that the Court does not have jurisdiction to hear or determine the prosecution of the defendant for the alleged offence under s8(1) of the Occupational Health and Safety Act 2000 (NSW) (the Act) as charged in the Order. 3. An order dismissing Proceedings IC No 1259 of 2009. 4. In the alternative an order quashing the Order. 5. Any further order as the Court thinks fit; and 6. An order that the Prosecutor pay the defendant's costs of the motion and proceedings. The Notice of Motion provided the following grounds or reasons upon which it is said that the Application for Order should be dismissed: 1. The Order purports to compel the defendant to answer an offence under s 8(1) of the Act charged in the Application for Order filed on 24 August 2009. 2. The statement of the offence contained in the Application for Order is not sufficient in law as it does not: (i) identify the alleged risk to which the employees were exposed; (ii) identify the acts or omissions said to constitute the alleged contravention by the defendant of the Act; (iii) identify the measures it is alleged that the defendant could have taken but did not take to avoid the risk. 3. The statement of the offence contained in the Application for Order is not valid as it does not satisfy the common law requirements of a valid charge and/or it does not comply with s246(1) of the Criminal Procedure Act 1986 (NSW); s168(2) of the Industrial Relations Act 1996 (NSW) and Rule 217(b) of the Industrial Relations Commission Rules 1996 (NSW). 4. The Order which purports to compel the defendant to answer the invalid charge is void or invalid. 4An affidavit of Carlie Anne Holt, solicitor for the defendant in these proceedings, was filed in support of the defendant's Notice of Motion. The affidavit specified further grounds and reasons upon which it was said that the Application for Order should be dismissed, as follows: 4 On 3 February 2010 the High Court of Australia delivered its judgment in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (Kirk). 5 The High Court outlined in its decision in Kirk that the statement of the offence contained in the Application for Order is not sufficient in law if it does not: 5.1 identify the alleged risk to which the employees were exposed; 5.2 identify the acts or omissions said to constitute the alleged contravention by the defendant of the Act; 5.3 identify the measures it is alleged that the defendant could have taken but did not take to avoid the risk. 6 The statement of offence contained in the Application for Order does not comply with the requirements for a valid statement of offences as set out by the High Court in Kirk . 7 The statement of offence contained in the Application for Order does not satisfy the common law requirements of a valid charge and/or does not comply with s246(1) of the Criminal Procedure Act 1986 (NSW), s168(2) of the Industrial Relations At 1996 (NSW) and Rule 217(b) of the Industrial Relations Commission Rules 1996 (NSW). 8 The Order filed on 25 August 2009 is void and/or invalid. 5The amended Application for Order, filed by the WorkCover Authority of New South Wales on 22 March 2010, added to the original application specific reference to the acts or omissions which it was contended were failures by the defendant leading to the breach of the Act. The amended Application for Order alleged the defendant failed to: Ensure the health, safety and welfare at work of all its employees, and in particular, Gloria Schulz and Nelleka Van Stratum, contrary to section 8(1) of the Act. In particular: The particulars of the risk are that: (a) The employees of the defendant were put at risk of injury by falling a distance of approximately 2.27 metres through a suspended plasterboard ceiling located in the roof access room of the premises to the concrete ramp below when they accessed the area to store or retrieve goods and/or materials. The particulars of the acts or omissions in failing to eliminate the risk are that: (b) The defendant failed to carry out a risk assessment in respect of the weight bearing load of the suspended plasterboard ceiling in the roof access room to consider an identify the hazards associated with storing or retrieving goods and/or materials from the area and the means by which the risk could be eliminated; (c) The defendant failed to provide a safe system of work in relation to the storage and retrieval of goods and/or materials from the roof access room in that it allowed its employees to access the area to store or retrieve goods and/or materials when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees; (d) The defendant failed to ensure its employees were instructed not to store and/or retrieve goods and/or materials from the suspended plasterboard ceiling roof in the roof access room which ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees; (e) The defendant failed to ban or prohibit employees from storing and/or retrieving goods and/or materials from the suspended plasterboard ceiling in the roof access room, which ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. In particular, the defendant failed to give effect to and enforce its own procedure contained in the document entitled "Alert! Accessing Coolroom Roofs and Ceiling Spaces" issued on 7 June 2007, that its employees should not access or enter the void above a suspended ceiling; (f) The defendant failed to restrict employees accessing the suspended plasterboard ceiling in the roof access room by ensuring access was restricted by a physical barrier at all time and/or instructing employees not to access the area verbally, in writing or by the use of signage. As a result of the defendants' failure, its employees, and in particular Gloria Schultz and Nelleka Van Stratum, were placed at risk of injury, and Gloria Schultz suffered injury. 6Ms P E McDonald SC appeared for the defendant, Coles Supermarkets Australia Pty Ltd, and submitted that the Court should refuse to make the orders sought in the prosecutor's Notice of Motion. 7Mr M K Scott of counsel appeared for the prosecutor and submitted that the Court should refuse to make the orders sought in the defendant's Notice of Motion. Background 8On 24 August 2009, pursuant to s 246(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996, the defendant was ordered to appear before the Court to answer the offence charged in the Application for Order. 9The defendant has not entered a plea and no trial date has been fixed. 10Although filed later in time, it was agreed that the Court would firstly consider the defendant's Notice of Motion which claimed the pleadings contained in the prosecutor's Application for Order were so vague as to make the summons invalid. The grounds relied upon were twofold, namely, there was a failure to identify the specific acts/omissions which would establish the breach and the measures that should have been taken and, secondly, there was a failure to specify the risk to safety. 11Pursuant to s 11 of the Criminal Procedure Act 1986, where there is no "fair information and reasonable particularity as to the nature of the offence" the charge is considered invalid ( Smith v Moody [1903] 1 K.B. 56, at p. 60; see also: De Romanis v Sibraa [1977] 2 NSWLR 264 (at 291); John L. Pty Ltd v Attorney-General for the State of New South Wales (1987) 163 CLR 508; Lodhi v The Queen (2006) FLR 303). 12In its form and on its face the first Application for Order provided a generalised pleading of the asserted failures and the asserted risk but there was no specificity in either pleading. Reliance was placed in submissions by both parties on the effect of the reasoning, in a series of (then) recent cases, as to in what circumstances the prosecutor can amend an Application for Order and what a Court is required to consider to allow such an amended Application (see Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531). 13However, after judgment was reserved, each party requested judgment be withheld on both Motions pending a consideration by the New South Wales Court of Appeal on the issue of the ambit of allowable amendments to Applications for Order issued by the WorkCover Authority and the applicable test. 14That judgment is now at hand. The New South Wales Court of Appeal addressed the question as to the power of a prosecutor to amend an Application for Order in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157. Hodgson JA (who wrote the principal judgment but was otherwise joined by Allsop P and Basten JA) reasoned as follows at [32] - [36]: 32 The High Court decision in Kirk does establish that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the measures that should have been taken to address the relevant risks. 33 However, it did not decide that this requirement displaced ss 11 and 16(2) of the CP Act , which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of "indictment" given by s 15 of the CP Act . Rather, the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26] - [30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation. 34 It is true that in John L , a majority of the High Court held that a lack of particularity in a charge as originally brought was fatal, but it also held that provisions of the nature of ss 11 and 16(2) of the CP Act did not apply. In Johnson v Miller (1937) 59 CLR 467, it was plainly contemplated that the common law requirement of particularisation could be satisfied by various means, not limited to full particularisation in the complaint or charge itself: see at 490 per Dixon J, at 497-8 per Evatt J, and at 501 per McTiernan J. 35 Accordingly, in the present case, if the particulars of the charges as given in the original charges were deficient, particulars could be provided in other ways. 36 Further, in this case there is an outstanding application to amend the charges. It seems clear that such an amendment can be granted, at least unless it were to substantially change the nature of the charge: see CP Act ss 20 and 21 (read with the definition of "indictment" in s 15(2), IR Act s 170.) His Honour went on to reason the following at [38] - [40]: 38 On the question whether the amendment now sought is so substantial as to amount to the bringing of different charges, that question would normally be one for consideration by the court dealing with the application for amendment. However, prima facie it would appear that the additional particulars given in the amended charge do no more than further particularise the earlier particulars, notably particulars d. and e. in the original charge, in the case of proceedings IRC 536 of 2009. 39 It was submitted that even with the additional particulars proposed to be added by the amendments, the requirements of Kirk would still not be satisfied. It is not necessary to rule on this. However, I note that, in my opinion, the question of adequacy of particulars in a case like this may need to be addressed having some awareness of the evidence that has been supplied to the defendant by the prosecution. It is true that the admissibility of evidence depends upon the terms of the charge and the particulars; but this may not necessarily preclude regard being had to the context provided by the evidence in order to assess whether the particulars are sufficient to inform a defendant of the case to be made out. 40 It may possibly be that Marks J was in error, therefore, in having no regard to the prosecution's initiating affidavits; but such an error would not in my view be a jurisdictional error or a denial of procedural fairness. In any event, to quash the decision of Marks J on that basis would not give the applicants any useful relief. And Basten JA reasoned at [80]: In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid. 15Spigelman CJ in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 stated that the charges should be read as a whole, including the particulars supplied in the Application for Order. The Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked (at [56]). 16Coles mounts a twofold attack opining the original Application for Order does not identify the risk to which the employees were allegedly exposed and, secondly, it does not identify the acts or omissions said to constitute the contravention and to identify the measures the prosecutor alleged Coles could/should have taken to avoid the risk ( Kirk ). 17Adopting the approach of this Court in Inspector Hamilton v John Holland (at [103]), the essential legal elements of the charge under s 8(1) of the Act are that the defendant was an employer at the time of the alleged breach; that there was a risk to employees' health or safety; that there was a causal nexus between the defendant's breach and the risk to employees' safety; that the risk was to employees at work. 18In my view, the essential legal elements are met in the original Application for Order as follows: i. the defendant was an employer at the time of the alleged breach: the original Application for Order pleads the defendant as being an employer on the relevant date at the relevant place of work; ii. that there was a risk to employees' health or safety: the risk is identified as arising from employees having to access the storage area in the roof access room; iii. that there was a causal nexus between the defendant's breach and the risk to employees' safety: the nexus was identified in the generalised particulars when it was pleaded "[a]s a result of the defendants' failure" the named employees were placed at risk and/or suffered injury; iv. that the risk was to employees at work: the place and time were identified and, as to those who suffered injury, the employees were named. 19As was observed by Basten JA in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130]: ... it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). 20I am satisfied the original Application for Order contains all the essential legal elements necessary for a charge and is, therefore, a valid charge. It pleads the essential legal elements of the charge and the essential factual ingredients of the charge. 21I am further satisfied the "risk" is clearly identified through the facts pleaded in the Application as a risk to particular persons identified, one of whom suffered injury, arising from the asserted failures by the employer who did not ensure their safety when retrieving goods from the roof access room. 22I therefore reject the Notice of Motion of the defendant, Coles Supermarkets Australia Pty Ltd. 23The prosecution, in its Notice of Motion, asks for leave to amend the Application for Order under s 170 of the Industrial Relations Act 1996 and s 20 of the Criminal Procedure Act 1986. Under s 170(1) of the Industrial Relations Act 1996, the test is whether the proposed amendment is considered to be "necessary in the interests of justice." The purpose of the amendments proposed is to further particularise what are the alleged acts or purported failures to establish the breach and better inform the defendant of those acts and the measures it should have taken. In that particularisation, the "risk" is also further identified. Section 170 of the Industrial Relations Act 1996 provides the following: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 24The prosector has conveniently supplied a document containing a comparative of the original pleadings and the proposed amendments. I am satisfied, while the original document met the basic legal requirement, the amended Application particularises with greater specificity the acts and/or omissions relied upon to establish the asserted breach and the measures that should have been taken and that, in the particularisation, there can be no doubt as to the specificity of the identified risk. I am further satisfied that it is in the "interests of justice" that the amendment be allowed. 25I do not accept the Court should go so far as to assess the adequacy of the particulars. That will be a matter of evidence (see G.P.I (General) per Allsop P at [3]). 26I therefore give leave to the WorkCover Authority to file the amended Application for Order. Costs 27The Court determined to hear, firstly, the Notice of Motion of the defendant. The decision on that Motion would determine whether the prosecutor's Notice of Motion to amend the particulars would be considered. This prosecution is at the interlocutory stage. 28The power to award costs is a creature of statute and there is no general power to award costs at an interlocutory stage in a summary prosecution before the Industrial Court of New South Wales under the Occupational Health and Safety Act 2000 . 29The Notice of Motion filed by the defendant on 26 March 2010 sought an order dismissing the proceedings or declaring the Application invalid. That Notice of Motion has been dismissed. The prosecution asks for costs of that Motion. The prosecutor, while pleading the appropriate legal elements, needed to amend its Application for Order ( Kirk ). Given the circumstances, I make no costs order in favour of the prosecution on the defendant's Notice of Motion to strike out the Application for Order notwithstanding the general rule that costs usually follow the cause. In Latoudis v Casey [1990] 170 CLR 534, Mason CJ stated the principles to be applied in relation to the awarding of costs as follows (at 542-543): . . . in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They 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: Cilli v. Abbott , at p 111. ... Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings. And later (at 544): Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor. 30The Court has granted leave to the prosecutor to amend the Application for Order. The defendant now seeks its costs on the prosecutor's Notice of Motion. 31The prosecutor relied primarily on the power of the Court to amend under s 170 of the Industrial Relations Act 1996. There is a specific statutory basis for the Court to order that the prosecutor pay the costs of the defendant where an amendment to proceedings is ordered. The relevant statutory provisions are ss 168 and 170 of the Industrial Relations Act 1996 as found in Part 5 (Procedure and Powers of the Commission). Sections 168(1) and 168(2) of the Industrial Relations Act 1996 provide the following: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. Under s 170(2) amendments to proceedings can be allowed: "on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs)." 32The power vested in the Court to award costs is stated under s 181 of the Industrial Relations Act 1996 . Section 181(1) relevantly states: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. 33Rule 211 of the Industrial Relations Commission Rules reads relevantly: Subject to this Part, the costs of any application or other step in any proceedings shall, unless the Commission otherwise orders, be deemed to be part of the costs of the cause of the party in whose favour the application or other step is determined and shall be paid and otherwise dealt with in accordance with the provisions of this Part. 34The prosecutor submits that any tension between ss 168 and 170 of the Industrial Relations Act 1996 is overcome if the phrase "and any other Act or law" is read as any other Act or law which is relevant to the vesting in the Court of a discretion to award costs in the matter before it. Read in this way, the Court is then directed back to the provisions of the Criminal Procedure Act 1986 set out above. 35Division 4 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986 deals with the Court's discretion to award costs. Those provisions are set out in s 257A to s 257G inclusive. Section 257B provides a discretion to award costs to a prosecutor but only in the limited circumstances of a conviction or the making of an order by a court. Section 257C provides a discretion to award costs to an accused person. This again is limited to a matter being dismissed or withdrawn. 36The defendant asks for costs against the prosecution on the prosecutor's Notice of Motion or, alternatively, that costs on that Motion be reserved so it has the option of making submissions about such a cost order at the end of the proceedings. 37In a consideration of the Court's power to consider costs in an occupational health and safety prosecution, Staunton J held in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 the following at [303] - [306]: 303 In my view, sub-clause (1) is the relevant provision for the matters before me. Proceedings had commenced and were not completed immediately before the repeal. The repeal in this case is the SCSJA. The proceedings are able to be done or could have commenced under the corresponding provision of the amended Criminal Procedure Act . Accordingly, as I comprehend the provision, (not without some difficulty I confess), the proceedings commenced may be completed under the corresponding provision of the amended Criminal Procedure Act . 304 In determining s 253 of the CPA as the relevant legislative basis for the making of a costs order in these proceedings, I note the provisions of s 168 (4) of the IR Act as follows: The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 305 Section 168 belongs to Chapter 4, Part 5 of the IR Act. Part 5, to which s 168(4) refers embraces ss 162 - 184 inclusive. The relevance of that is that it embraces s181 of the IR Act dealing with the general costs powers of the Commission in Court Session and otherwise. Given the provisions of s168(4) of the IR Act, s181 has no application to 'proceedings for an offence' because such proceedings, as s168(2) of the IR Act makes clear, are dealt with in accordance with Part 5 of Chapter 4 of the CPA embracing as it does s 253 of that Act. See WorkCover Authority of NSW v Plastachem Pty Limited [2001] 110 IR 351 at [33]. 306 In considering the provisions of s 253, it is clear the discretionary power to award costs allows a court to order an accused person to pay the prosecutor's costs (s 253 (1)) or to order the prosecutor to pay the accused person's costs (s 253 (1A)). In each case, the amount of costs must be specified and must be made concurrent with the requisite conviction or orders as the respective sub-sections provide. And at [387]: I have already concluded that in making an order for costs, I must do so in accordance with the provisions of s253 of the CPA. The costs to be paid must be such costs as the Court specifies and the costs specified must be made 'in and by a conviction or order'. In order to effect that provision it is necessary for the prosecutor's costs to be assessed. Having determined the basis of my costs order, I would direct the parties to confer with a view to reaching agreement pursuant to the provisions of s253(2)(a) of the CPA. 38I adopt the reasoning of Staunton J but vary the usual order for costs notwithstanding the prosecutor succeeded in the Motion to amend the Application. I order, should the charge against the defendant corporation be dismissed and then an application for costs pressed, the defendant's costs expended on the prosecutor's Notice of Motion for leave to amend the Application for Order should be given favourable consideration (but at the conclusion of the proceedings). ORDERS 39I make the following orders: 1. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the prosecutor is allowed. 2. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the defendant is dismissed. 3. Costs of the defendant of the prosecutor's Notice of Motion in Matter No 1259 of 2009 are reserved. 4. There shall be no order in favour of either party for costs on the defendant's Notice of Motion in Matter No 1259 of 2009. 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: 23 September 2011