Nash v Resource Pacific Pty Ltd (No 4) [2019] NSWSC 1253

Supreme Court New South Wales

Medium Neutral Citation: Nash v Resource Pacific Pty Ltd (No 4) [2019] NSWSC 1253 Hearing dates: 8 September 2018 Date of orders: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Common Law Before: Walton J Decision: The defendant shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. Catchwords: COSTS – application that the prosecutor pay the defendant's costs – prosecution under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – summary proceedings determined by this Court under Pt 5 of Ch 4 Criminal Procedure Act 1986 (NSW) – prosecutor failed to prove the defendant committed the charged contraventions of s 8(2) (other than particulars 9 and 11) and s 10(2) – defendant make out statutory defence for particulars 9 and 11 – principles from Latoudis v Casey – whether available for OHS proceedings where dismissed via statutory defence – where prosecution dismissed – significance of dismissal by successful statutory defence – whether principles in Latoudis v Casey distinguishable – charges and conduct of parties in considering exercise of costs discretion – costs to defendant Legislation Cited: Coal Mine Health and Safety Act 2002 (NSW) Criminal Procedure Act 1986 (NSW) Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280 Category: Costs Parties: Jennifer Ann Nash (Prosecutor) Resource Pacific Pty Ltd (Defendant) Representation: Counsel: JV Agius SC with RJ Rankin (Prosecutor) ML Shume (Defendant)