SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334 Hearing dates: On the papers Date of orders: 19 July 2019 Decision date: 19 July 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Order the prosecutor to pay the defendant's costs associated with the requests for further and better particulars made by the defendant by letters dated 16 October 2018 and 6 December 2018. (2) Subject to Order (1), order that each party pay its own costs of and incidental to the defendant's Notice of Motion filed on 11 March 2019. (3) Order that each party pay its own costs of determining the issue of costs on the motion. Catchwords: COSTS – whether costs of interlocutory proceedings should be awarded now, or not until conclusion of the prosecution – discretionary factors taken into account in relation to award of costs on interlocutory motion Legislation Cited: Criminal Procedure Act 1986 (NSW) Work Health and Safety Act 2011 (NSW) Category: Costs Parties: SafeWork NSW (Prosecutor) AKA Civil Australia Pty Limited (Defendant) Representation: Counsel: T Hammond (Prosecutor) S McIntosh (Defendant)

Solicitors: SafeWork NSW (Prosecutor) HWL Ebsworth (Defendant) File Number(s): 2017/379759

Judgment

Background 1. On 14 June 2019 I delivered judgment on the defendant's motion – [2019] NSWDC 257. That motion sought orders that the proceedings be quashed, permanently stayed or dismissed. The orders were sought on two grounds. Firstly, it was submitted that certain particulars in the Summons required a standard of the defendant higher than the standard prescribed by the Work Health and Safety Act 2011 (the Act). Secondly, the defendant submitted that the prosecutor was obliged to, and had not, identified the persons put at risk by any breach by the defendant of the Act. 2. I dismissed the defendant's motion filed on 11 March 2019 and indicated that I would hear the parties further on costs. The parties agreed to deal with costs "on the papers". In accordance with directions made, the prosecutor filed a written submission on the issue of costs (now marked MFI 7). The defendant filed a written submission on costs (now marked MFI 8).