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) Solicitors: Crown Solicitors Office (Prosecutor) Seyfarth Shaw (Defendant) File Number(s): 2016/00019616; 2016/00019632 Judgment 1. HIS HONOUR: On 15 February 2011, a prosecution was instituted by Robert William Regan, for whom Ms Jennifer Ann Nash ("the prosecutor") was substituted by order of the Industrial Court of New South Wales on 7 March 2018, against Resource Pacific Pty Ltd ("the defendant"). 2. The charges against the defendant are specified in further amended applications for order filed on 11 June 2013. The defendant was charged therein with one breach of s 8(2) (matter number 2016/00019616) and one breach of s 10(2) (matter number 2016/00019632) of the Occupational Health and Safety Act 2000 (NSW) ("the OHS Act") (collectively, "the matters"). These two breaches were pleaded by the prosecutor as occurring on 18 February 2009 at the defendant's place of work, the Ravensworth Underground Mine ("the Mine"), near Singleton in New South Wales. The Mine was both a coal workplace within the meaning of the OHS Act and a place of work to which the Coal Mine Health and Safety Act 2002 (NSW) ("the CMHS Act") applied. 3. The prosecutor particularised the risk to health and safety in the s 8(2) charge as follows: 1. On the night shift from 6:00 p.m. 17 February 2009 to 6:00 a.m. 18 February 2009 Mr Oldknow and his fellow workers Noel Fairley, Gary Sales and Geoffrey King were engaged in the conduct of the defendant's undertaking at the defendant's place of work when driving trucks under a large loading hopper known as Reject Bin 802 to receive into the trucks and their trailers approximately 30 tonnes of material delivered in three drops from the hopper and to then deliver that material to another location nearby. 2. Mr Oldknow and his fellow workers were at risk of being injured or killed by material falling onto them through the roof of their truck cabin when they were beneath the chute of the hopper. 1. There were some inconsequential differences in how the risk was particularised in the s 10(2) charge. The particulars of each charge do, however, differ. 2. Section 8(2) of the OHS Act provided at the time of the incident as follows: 8 Duties of employers … (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 1. The elements of the s 8(2) offence were (leaving aside requirements as to "undertaking" and place of work): 1. that a person who was not an employee of the defendant was exposed to a detriment to his or her health or safety (a risk to their health or safety); and 2. that by one or more of the omissions (conduct) charged the defendant failed to take a step or steps which was or were necessary to ensure safety, or which limited the risk to the person concerned without entirely eliminating it; and 3. a causal connection between (a) and (b). 1. The s 8(2) charge had, relevantly, particulars expressed in para 3 and paras 6-9 of the charges in the further amended application. 2. Paragraphs 6-9 set out the defendant's omissions in the s 8(2) charge in such a manner that they were required to be read with the corresponding paragraph or particular 3(a)-(d). Thus, in the judgment delivered by the Court in relation to the further amended applications the Court considered particular 6(a) and then particulars 3(a) and 6(b); 3(a) and 6(c); 3(a) and 6(d); 3(b) and 7; 3(c) and 8; and 3(d) and 9, respectively. 3. The Court also considered together particulars 4 and 10, and 5 and 11. 4. Section 10(2) of the Act provided: 10 Duties of controllers of work premises, plant or substances … (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. 1. Many of the principles applicable to the proof of a contravention of s 8(2) of the Act, discussed in Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 ("Nash No 1") at [375], are applicable to an offence under s 10(2) of the OHS Act, particularly those concerning risk and the need to prove a causal nexus. 2. In WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280 at [160], a Full Bench of the Industrial Court of NSW found that to establish an offence against s 10(2), the prosecutor must prove the following elements: 1. a person has control of any plant or substance; 2. the plant or substance is used by persons at work; 3. there has been a failure by the person in control of the plant or substance to ensure that the plant or substance was safe and without risks to health; and 4. the failure in (3) occurs in circumstances where the plant or substance is not properly used. 1. In relation to the s 10(2) charge, the Court dealt with particulars 8 through to 12. 2. In the trial of the matter, the defendant raised defences in respect of various particulars of the charges, pursuant to s 28(a) of the OHS Act. The provisions of s 28, which applied at the time of the incident, were as follows: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 1. On 2 February 2018, the Court reached a verdict in the trial: Nash No 1. 2. At [878] of Nash No 1, the Court reached the following overall conclusions: 1. The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632. 2. The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632. 3. The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616. 1. It should be noted that the conclusions reached by the Court refer to two particularised measures with respect to particular 9. This was because of the particular utilised the word "or" to distinguish between two particularised measures. Particular 9 was in the following terms: The defendant should have ensured that the trucks driven by the men had adequate overhead fall protection installed or insisted on different trucks being driven that had adequate overhead fall protection. 1. The defendant was found not guilty of the charges brought under ss 8(2) and 10(2) of the OHS Act. The charges were dismissed. THE PRESENT ISSUE 1. Upon delivery of the judgment on 2 February 2018, senior counsel for the defendant made an application that the prosecutor pay the defendant's costs of the respective proceedings. The hearing of that application was deferred with leave being given to the defendant to approach the Court to renew the application. That step was taken on 4 May 2018. 2. On 5 June 2018, consent orders were made setting a program for the hearing of the question of costs. An amended program was fixed by consent on 23 July 2018 in the following terms: ORDER MADE BY THE COURT BY CONSENT: (1) The Defendant to file submissions as to any order as to costs by 1 June 2018. (2) The Prosecutor to file any submissions in reply as to any order as to costs by 6 July 2018. (3) The Defendant to file any submissions in reply as to any order as to costs by 27 August 2018. (4) The hearing of any costs application is to be heard on a date to be fixed by the Court. 1. This judgment concerns the application by the defendant for an order that the prosecutor pay the defendant's costs of the matters. APPLICABLE LEGISLATION: COSTS 1. Because the proceedings were summary proceedings determined by this Court under Pt 5 of Ch 4 Criminal Procedure Act 1986 (NSW), costs in the proceedings are governed by Div 4 of Pt 5 of Ch 4 of that Act: Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [75]-[99]. 2. In Div 4, s 257C of the Criminal Procedure Act provides: 257C When professional costs may be awarded to accused person (1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if: (a) the accused person is discharged as to the offence the subject of the proceedings, or (b) the matter is dismissed because the prosecutor fails to appear, or (c) the matter is withdrawn or the proceedings are for any reason invalid. 1. Section 257G provides: 257G Calculation of costs The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined: (a) by agreement between the prosecutor and accused person, or (b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations). 1. Whilst ordinarily s 257D imposes a hurdle to a successful defendant obtaining an order under s 257C, that hurdle does not apply in cases of prosecutions under the OHS Act (which has been repealed)by operation of cl 13 of Sch 4of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"), extracted below: 13 Amendment of Criminal Procedure Act 1986 Sections 215 and 257D of the Criminal Procedure Act 1986 continue to apply as it was in force before the commencement of this Act to and in respect of proceedings for an offence committed before that commencement 1. The WHS Act commenced on 1 January 2012. Before that date, s 257D of the Criminal Procedure Act relevantly provided: 257D Limit on award of professional costs against a prosecutor acting in a public capacity (1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section: (a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and (b) does not apply in relation to proceedings for an offence against the Occupational Health and Safety Act 2000, the regulations under that Act or the associated occupational health and safety legislation within the meaning of that Act. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. 1. Accordingly, s 257D of the Criminal Procedure Act does not apply to costs for the defendant in these proceedings. RELEVANT ASPECTS OF JUDGMENT IN NASH NO 1 Particulars 9 and 11 1. Having regard to the parties' submissions as to particulars 9 and 11 in the context of their submissions as to costs, some particular attention should be given to the findings as to those particulars of the s 8(2) charge in Nash No 1. Particular 9 1. Paragraphs [566]-[732] of Nash No 1 dealt with the first particularised measure concerning a failure to ensure that trucks driven by "the men" had adequate overhead and fall protection installed (referred to as "Falling Object Protection Structure" or "FOPS"). 2. Paragraphs [733]-[736] of Nash No 1 dealt with the second particularised measure. The Court found the prosecutor had failed to prove beyond reasonable doubt that aspect of the particular. 3. The ultimate conclusion reached by the Court, as to the first particularised measure, is contained in [649]-[651] of Nash No 1, as follows: [649] It follows that I do consider that the prosecutor has satisfied the Court beyond reasonable doubt that the defendant has breached s 8(2) of the Act by omitting to take the measure in particular 9. [650] The prosecutor has proved beyond reasonable doubt that the measure would have minimised or mitigated the risk to safety to Mr Oldknow on 18 February 2009 (or, to the extent applicable, the other particularised drivers). Further, I consider that the prosecutor has proved that there was a causal connection between the omission to take the measure and the exposure to risk of Mr Oldknow or other drivers. [651] However, I have formed the view that, for the reasons I will now give, the defendant has overwhelmingly established a defence of s 8(2) charge so far as particulars 3(d) and 9 are concerned. 1. Those conclusions were arrived at after the receipt of a considerable amount of expert evidence bearing upon the first particularised measure in particular 9. 2. The parties relied, in part, upon the reports of two experts: in the prosecutor's case, Mr Wiltshire and for the defendant, Dr Richardson ("the experts"). That evidence was summarised at [605]-[606] of Nash No 1 as follows: [606] The reports of the experts were as follows: (1) Wiltshire Reports: (a) Report on Design of Falling Object Protective Structure (FOPS) in the matter of Nash v Resource Pacific Pty Ltd, dated 3 May 2016 (Ex 150) ("Wiltshire Report 1"); (b) Supplementary Report on Design of Falling Object Protective Structure (FOPS) – Repositioning of Tipper Bin in the matter of Nash v Resource Pacific Pty Ltd, dated 10 June 2016 (Ex 151) ("Wiltshire Supplementary Report"); (c) Report on the Design of Falling Object Protective Structure (FOPS) – Repositioning of Tipper Bin, dated 27 July 2016 (this report was not pressed) ("Wiltshire Report 2"); (d) Report on the Design of Falling Object Protective Structure (FOPS) – Loads and Design Requirements, dated 27 July 2016 (this report was not admitted into evidence) ("Wiltshire Report 3"); (e) Report on the Design of Falling Object Protective Structure (FOPS) – Design and Analysis Details, dated 27 July 2016 (this report was not admitted into evidence) ("Wiltshire Report 4"); and (f) Report on the Design of Falling Object Protective Structure (FOPS) – Manufacture and Testing, dated 27 July 2016 (redacted version of this report is Ex 183) ("Wiltshire Report 5"). (2) Richardson Reports: (a) Report on Proposed FOPS Structure: Kenworth T401 Rigid Tipper FOPS Structure, dated 29 March 2016 (Ex 152) ("Richardson Report 1"); (b) Supplementary Report on Proposed FOPS Structure: Kenworth T401 Rigid Tipper FOPS Structure, dated 6 April 2016 (Ex 153) ("Richardson Report 2"); (c) Proposal for Design and Manufacture of FOPS, dated 22 June 2016 (Ex 154) ("Richardson Report 3"); (d) Updated CV and schedule of costings (Ex 156) ("Richardson Report 4"); and (e) Supplementary Report on Mr Wiltshire's Report 5 Design of FOPS Manufacture and Testing, dated 2 September 2016 (the redacted version of this report is Ex 185) ("Richardson Report 5"). (3) Joint report prepared by Dr Shane Richardson and Mr Richard Wiltshire in the matter of Nash v Resource Pacific Pty Ltd, dated 17 June 2016 (Ex 155) ("the Joint Report"). (The short forms in that extract will be used in this judgment). 1. Wiltshire Reports 3 and 4 were excluded after objections, as were parts of Wiltshire Report 5. The reasons for this ruling included the following (at [607(11)]): (11) The next issue is the question of particulars. The particulars provided in the charges in relation to this part of the charge provide the bare bones of the prosecution's case on FOPS (as earlier discussed). There was nothing in the prosecutor's opening address as to the nature of the structure which would have made a FOPS, as pleaded, "adequate". The only evidence from the prosecutor as to what sort of FOPS might ensure health and safety of the drivers had been led from Mr Wiltshire's evidence. That was the means by which the defendant may discern the prosecutor's case as to particular 9. That was given eventually by Wiltshire Report 1 and the Joint Report. In the Joint Report, changes were made from the model concept FOPS but Wiltshire Reports 3, 4 and, to the extent not admitted, 5 significantly changed the prosecutor's case for the efficiency of an energy absorbing concept model of FOPS. It changed numerous parameters for the design of the structure, features of the structure itself and changed and added hypotheses on which the rationale for the efficiency of the structure depended. In my view, permitting the prosecutor to rely upon the further reports from Mr Wiltshire in the manner that it did and at the time that it did, would have been to bring upon the defendant an oppression and unfairness. 1. In considering those parts of the reasons of the Court, as to the first particularised measure in particular 9, which bear upon the present application, it is useful to first consider the conclusions of the Court as to a challenge by the defendant to the validity of that aspect of the particular. That passage of the judgment extends from [567]-[585] and was in the following terms: [567] As earlier mentioned, the defendant submitted that particular 9 (before the word "or") was [invalid] in that it alleged a failure but not one to take specified measures per Kirk. [568] I do not accept that submission for reasons which will now follow. [569] The words "should have ensured that the trucks driven by the men had adequate overhead fall protection installed" are wide enough to encompass, as the prosecutor submitted, that the specified measure constituted the defendant's making sure that the trucks driven by Mr Oldknow and other specified drivers had adequate fall protection. This conclusion is consistent with particular 3(d), which alleged a failure to "ensure the system of work used by Mr Oldknow and his fellow workers was safe and without risk to health" because the "trucks being driven by Mr Oldknow and his fellow workers had no [FOPS]". The expression "used by" is wide enough, in the sense of availed of or deployed, to encompass that which was the evidence in the proceedings, namely, for example, Mr Oldknow's truck was owned by his family partnership and not the defendant on Daracon such that upon the proper construction of particular 9, when read with particular 3(d), the defendant is charged with failing to take the action of requiring trucks used by persons or entities other than the defendant to use FOPS. [570] However, issues arise with respect to the use of the word "adequate" to describe FOPS in the particulars. The defendant submitted that the word "adequate" assumes the measure would have become sufficient and effective to discharge the duty imposed by the Act. The logical fallacy said to be created is that the requirement for FOPS to be sufficient is assumed to be here without evidence other than the particular itself. The prosecutor cannot be allowed by mere pleading, it was submitted, to overcome the necessity to prove that the measure particularised was one that would have minimised the risk and therefore attract the duty. I will return to that issue and the preliminary issue raised by the defendant (including that the particular concerns an outcome not a measure after addressing some background matters), but should note here that I accept the defendant's submission as to the necessity for proof that the risk would have been minimised. [571] In that respect, I note the case for the prosecutor on this particular ultimately went forward solely upon the basis of the model concept FOPS developed by Mr Wiltshire, which operated upon the principles of absorbing energy. [572] The prosecutor's case, in this respect, must be seen in the light of the history of the proceedings. I accept the following submission by the defendant in that respect as follows: 12. In retrospect, it seems that the particular was drafted on the basis of the Prosecutor's case view that the bin was designed to be used by a CAT773 mine truck (or similar) and that such vehicles were fitted with a FOPS. However, at the close of the case the Court has no evidence that a FOPS on a CAT773 would withstand the impact of 10 tonnes of chitter dropped from Bin 802. This is for two reasons – (a) as is now well understood and is discussed in detail below, the impact loading imparted by a drop of 10 tonnes of chitter is not known; and (b) there is no evidence that the CAT773 had a FOPS. The protruding lip of the tipper bin on the truck might or might not have been a FOPS. It would be speculation to find that it was. 13. Thus, it was not until the Defendant served Dr Shane Richardson's first report that there was evidence regarding this issue in the proceedings. As has been submitted orally, the function of that report was not, as was suggested for the Prosecutor, to make a case that a FOPS or a particular type of FOPS was not reasonably practicable. It was to make a case that: (a) there was only one Australian Standard for the design and construction of FOPS; (b) it did not apply to road-registered trucks, and (c) a FOPS built to that Australian Standard would not have been effective to withstand the impact of a drop of either 5000 kg (5 tonnes) or 10000 kg (10 tonnes) of coal chitter from Bin 802. 14. In other words, Dr Richardson's Report 1 was evidence tending to prove that a FOPS would not have ensured the safety of any driver on the night of 18 February 2009, thereby disproving any case by the Prosecutor on particular 9. 15. As the Court knows, the Prosecutor then engaged Mr Richard Wiltshire, and, in the course of Mr Wiltshire's researches, he approached Mr Jeff Samuels at QMW Industries to assist him with practical knowledge that he did not have. [573] I also accept the submission of the defendant in response to the criticism by the prosecutor that it was obvious that an energy resistant FOPS would be ineffective and that Dr Richardson did not consider an energy absorbing FOPS when he prepared his first two reports (because he was not asked to do so), the prosecutor did not disclose that its case was predicated on energy absorbing principles for FOPS. That case only emerged post Dr Richardson's reports (1 and 2) and, in fact, much later in the trial. [574] Dr Richardson's evidence as to an energy resisting FOPS, which I accept, was also: (1) to withstand 5,000 kg (5 tonnes) a FOPS would have a mass of 2,840 kg (2.84 tonnes); (2) to withstand 10,000 kg (10 tonnes) a FOPS would have a mass of 4,686 kg (4.68 tonnes). [575] As the defendant submitted the relevance of the evidence was: (1) consistent with the requirement of the Access and Compensation Agreement with Macquarie Generation, the trucks sub-contracted by Daracon Mining to haul reject from Bin 802 were road-registered and used public roads, particularly when not hauling reject at Ravensworth Mine; (2) axle load limits applied to trucks using public roads; (3) it was an offence to breach those limits by overloading such a truck; (4) the truck manufacturers imposed similar (in the case of theT401, identical) axle load limits; and (5) it was good practice to adhere to the manufacturer's steer axle limits to avoid undue wear and tear and for safety reasons. [576] Further, at the times of the incident there was no Australian standard for FOPS for road trucks. The only Australian standard for FOPS was AS2294. [577] The unchallenged evidence from Dr Shane Richardson is that a FOPS designed to AS2294.3 fitted to a T401 would not have been able to withstand either 5,000 kg falling approximately 3.0 m in 1 second or 10,000 kg of coal reject falling approximately 3.0 m in 2.5 seconds (these measures were designed to replicate the fall at the time of the incident). [578] The Prosecutor's expert witness on FOPS, Mr Richard Wiltshire, does not disagree. In their joint report, Dr Richardson and Mr Wiltshire explained why: The AS2294 upper limit for energy input is 11.6kJ, whereas the energy associated with a mass of 10 tonnes of chitter falling through a height of approximately 3m is 300kJ. This means the energy to be resisted by a FOPS designed to AS2294 is less than 4% of the energy being applied in the subject impact scenario. [579] In terms of the energy to be resisted, the nature of the falling object and the applicable vehicles and equipment, Mr Wiltshire considered the Australian standard (and the ISO upon which it was based) did "not contain guidance to the design of FOPS or related engineering principles" and that the standards had "no relevance for the subject incidence (sic)." A FOPS designed to the Australian Standard, he said, would not have withstood the impact of 10 tonnes of reject falling 3 m; nor would it have provided protection to the occupant of the truck. [580] It was in this light, as noted above, Mr Wiltshire's evidence as to energy absorbing FOPS emerged. Again, I consider the defendant's description of the [model] is sufficient, in that respect, as follows: To take into account that a road-registered vehicle to which it was fitted would have axle load limits, Mr Wiltshire proposed a model concept FOPS which, instead of operating as a shield, would be a "minimum mass" energy absorbing structure. Mr Wiltshire contended that such a structure would be based on principles of crash-worthiness and would employ materials which were available in 2008 – particularly an energy-absorbing material by Plascore called Crushlite, aluminium plates to form the crush box canopy and VHB tape to bond those plates. The posts supporting the crush box and fasteners connecting the posts to the chassis would be made of rectangular hollow steel (RHS). He suggested the possibility also of a tie-bar to attach the posts to the front of the truck's tipper bin. He provided drawings of the assembly of the FOPS over a truck cabin roof. [581] That model was modified as evidence unfolded and incorporated various adjustments to the commercial vehicles in order to fit that model concept FOPS. [582] The evidence disclosed that no energy absorbing FOPS structure existed anywhere in the world in 2008 (or 2016). Whilst Mr Wiltshire gave evidence that the technology to devise and construct such a structure was available and widely known when used in other appliances in 2008, the concept devised, even in 2016, was entirely novel and "an exploration of feasibility". The particular neither specified energy absorbing FOPS nor the modification of vehicles to accommodate them. [583] In the result the defendant submitted that the failure of the prosecutor to comply with the obligation to specify the measure alleged to have been omitted as required by law is illustrated by the case now made by the prosecutor that not only should the defendant have ensured that a FOPS was fitted to each of the drivers' trucks but that there would have to have been other, not insubstantial modifications made before the FOPS might work. [584] Whilst the question of whether the prosecutor has met the jurisdictional prerequisite under s 8(2) with respect to particular 8 is not without difficulty, on balance, I consider that the particular does meet the requirements of the principles in Kirk. A FOPS is a self-descriptive concept which provides adequate specificity as to the action the defendant was required to take in the same way that the reference to "shotcrete" in John Holland and "beams" in Chevalley was seen to provide sufficient specificity. The conclusion is buttressed by the evidence in the proceedings which indicated, conceptually, the concept of FOPS is well known in the mining industry. Whilst, the use of the expression "adequate" may have significant consequences for the proof of the particular, it does not of itself undermine the validity of the particular any more than the use of "adequate and continuous" affected the validity of the description of "beams" in Chevalley. In that respect the particular may be contrasted with particulars found to be invalid in GPI such as "provide adequate induction" or "adequate marking collision protection". [585] I do not consider the reliance upon energy absorbing FOPS or the need to install energy absorbing FOPS on trucks (which in many respects is axiomatic) alters that conclusion. An energy absorbing FOPS is but one model of a FOPS. In truth, the defendant's complaint is that it was not provided particulars of the "means" by which it may install FOPS. That is a matter for further and better particulars. However, the conclusion does not mean that the ultimate particularisation of the case for an energy absorbing model concept FOPS brought by the prosecutor falls within the particulars of the charge. I will now turn to that question. 1. Issues were found to exist with aspects of the particulars. This was explained at [586]-[590] of the judgment as follows: [586] Two issues were raised by the defendant regarding particulars. [587] First, as mentioned, the prosecutor's case was that for FOPS to be fitted to the trucks modifications would need to be made to the trucks – to move the truck tipper bin rearwards or shortened (to fit post to support the model concept FOPS). Modifying the geometry and components of a truck, the defendant submitted, fell outside particular 11. Secondly, it was submitted, the omission in particulars was evidence the prosecutor had failed to prove that the model concept of FOPS in her evidence would not have ensured drive safety as the measure could not be taken and safety ensured without taking additional measures which was not particularised. [588] The prosecutor submitted, as to the first matter, that the modifications to trucks were a necessary incident of the fitment of FOPS and did not require specification in the charge. I do not accept that submission. The reconfiguration of trucks was not proven to be an incident of FOPS per se but rather is a function of a particular model of FOPS introduced by the prosecutor as the trial advanced in order to accommodate difficulties in its case in proving viability and efficacy of his model. That resulted in evidence being led not only of equipment necessary to install FOPS, such as posts, but additional changes to the body of the truck, namely, its bin. [589] The prosecutor did further submit that the distance between the truck cabin and the bin involved the risk of serious injury should the drive miscalculate his position (or the mitigation of risk by reducing payload to increase the capacity of FOPS). However, I agree with the submission of the defendant that this argument merely underlines or reinforces the defendant's point. [590] A similar issue was raised with respect to the prosecutor's reliance upon the installation of the model concept of FOPS would have had to have been accompanied by a reduction of the payload taken in the bin of the truck. My reasons, in this respect, are similar to those given with respect to the modification of the trucks' bins. The agreed statement of facts referred to 10 tonnes of reject dropping into the bin of a truck. As to FOPS the case for the prosecution emerged what the defendant was required to meet was the defendant have made provision for the reduction in the load taken by the trucks in order to facilitate the construction of FOPS in the first place. 1. As to the determinations of liability, the Court in Nash No 1 commenced with a discussion of the prosecutor's submission at [608]: [608] I will return now to the discussion as to whether the prosecutor has proved this particular. However, it is useful given the discussion which will now follow to extract the prosecutor's submission on the statutory defences as follows: 12. The prosecutor submits the Court would find that the defendant has not discharged its onus and that, on the balance of probabilities, it was reasonably practicable for the defendant to have ensured that the trucks driven by Mr Oldknow and his fellow drivers had FOPS. In summary this is because: (a) While the prosecutor does not assert that a FOPS design based on energy-resisting principles that was commercially available in 2008 was capable of mitigating the risk, Dr Richardson and Mr Wiltshire agree that it was possible to develop and manufacture a FOPS in 2008 based on energy-absorbing principles of the kind proposed by Mr Wiltshire in his first report; (b) The experts further agree that, subject to proper testing and expected usual design refinements, the design proposed by Mr Wiltshire in his first report was capable of protecting the driver of a T401 truck in the event of a discharge of approximately 10 tonnes of chitter from the bin and would have mitigated the risk in the circumstances of the Incident itself; (c) The mass of the FOPS design proposed by Mr Wiltshire in his first report would not have significantly reduced the amount of the payload that could be carried by the truck without breaching mass and/or dimension requirements under the Road Transport legislation; and (d) The cost and timeframe for developing and manufacturing a bespoke FOPS as proposed by Mr Wiltshire in his first report were not disproportionate to the risk and its consequences, both of which were foreseeable and serious. 1. After a discussion of the expert evidence the following observations were made as to concurrent evidence of the experts (Nash No 1 at [632]-[634]): [632] By and large, I do not consider that the prosecutor has overstated the measure of agreement reached between the experts, save for [22] of the prosecutor's principal FOPS submission which is too emphatic given that it made no allowance for Dr Richardson's position on testing. [633] In the Joint Report, the experts agreed with the proposition that the model concept FOPS would have mitigated risk arising in circumstances similar to those found in the incident. Dr Richardson accepted the methodology employed by Mr Wiltshire in the design of an energy absorbing FOPS was sound (and that methodology may lead to an energy absorbing FOPS "which could address 10,000 kg of falling chitter") but expressed a caveat, which he maintained, that the model remained a concept (in Richardson Report 5 more stringent issues as to method were, as I have noted, identified). In his concurrent evidence, Dr Richardson accepted that a protection, albeit incomplete (due to the failure of the model to take into account post impact flow of reject), would have been afforded to employees via the model albeit at a conceptual level. [634] The evidence given by Dr Richardson in the taking of the concurrent evidence that he disagreed that the design "worked" needs to be seen in the context of his accompanying statement "as it stands at the moment" and as to his related and proximate discussion of shortcomings in the model regarding the provision of full protection and the need for testing. Those reservations do not detract from the overall effect of his evidence that the model would provide a degree of protection and that it was capable of being brought to fruition. 1. The Court then made some preliminary observations bearing upon the ruling on liability. The following aspects of the judgment in Nash No 1 (at [637]) should be referred to in the present context: (1) It may be accepted as a matter of principle that the circumstances of work at the time of the incident, whereby truck drivers were required to drive under a bin which had the potential to release kinetic energy through the fall of reject on a cabin roof entirely incapable of protecting a driver in such a fall (the vehicles driven by the truck drivers referred to in the charges did not have FOPS) may attract an obligation in s 8(2) of the Act insofar as the defendant may be required, in appropriate circumstances, to provide additional layers of safety than, for example, the electronic control system or any administration controls. (2) It may also be accepted that FOPS was a known means of providing safety from overhead falling objects in the mining industry although, as the prosecutor seemed to acknowledge, by means of trucks which were manufactured with such protection. There is no evidence that the defendant made any inquiry at the time about whether FOPS was a reasonably practicable system for the protection of truck drivers. … (7) As mentioned, Mr Wiltshire described his design process for the preparation of his first report as "explorations of feasibility". He modified the design during the conclave but never suggested that the concept he there developed represented a final model or design. The model concept FOPS as developed in revised form was a concept which might work subject to time being available to properly test it to allow qualification and characterisation of loading requirements. (8) The measure proposed is novel. As at 2008 (and even now) the FOPS structure did not exist anywhere in the world. It has nowhere been tested or proved effective. However, as Mr Wiltshire indicated, the technology to devise and construct such a structure was available and widely known as at 2008. (9) It follows that the prosecutor's case cannot rise above a proposition that the model concept FOPS may be viable, subject to physical tests to provide input data. (10) There was an omission in the modelling by Mr Wiltshire one of which will be discussed immediately below. The model concept FOPS would not prevent reject entering the front of the cabin roof or the windscreen of the cabin. I agree with the submission of the defendant that neither in his proposal for the model concept FOPS nor in his proposed testing program did Mr Wiltshire give consideration of where the mass which fell onto the FOPS would go. In Wiltshire Report 5, he considered that attempting to observe what the reject did after impact was "unlikely to achieve helpful information". (11) Mr Wiltshire's design goal had been to design a "minimum mass" energy absorbing structure rather than a shield. In the investigations leading to his Report 1 and to the Joint Report, Mr Wiltshire did not investigate what would happen to the fibreglass cabin rear if it was impacted by 750 kg of coal reject falling from a height of (having regard to my earlier discussion of the infrastructure of Bin 802) 2.7 m. Mr Wiltshire agreed that the shorter the crush box the more he limited the bending moments on the support posts. (12) The deformation plots from the finite element analysis ("FEA") in Fig 6.1 of Mr Wiltshire's first report showed the rear plate was twisting and the side, top and base plates tilted downwards at the front. This was all consistent with the crush box deforming downwards towards to the front of the cabin roof. The plascore at the front of the crush box was not crushed out but the rear of the plascore was either crushed out or very close to crushed out. This meant that, during impact, the impact load would be funnelled off the crush box towards the front of the cabin such that the plascore had either failed to absorb the energy it was intended to absorb or it absorbed in a way that was not intended. (13) In his first report, Mr Wiltshire designed the crush box so that its length was 1200 mm and, as a result of that fact and the area of the load at that stage being 1.6 m in diameter, 15% of the load would not hit the model concept FOPS he had designed (resulting in him discounting the load for modelling purposes by 15%). This was illustrated in Fig 4.4 of his report. As the defendant submitted, if, in fact, the reject fell as shown in Fig 4.4 then 7.5% of the reject would have impacted the front of the top of the roof of the cabin and the windscreen and 7.5% would have fallen into the area between the rear of the cabin and the front of the tip of the bin. I agree that no consideration was given to the safety implications of this post impact flaw (although it might be noted that the drawings in the first report, showing the dimensional relationship between a crush box and a cabin roof of T401, showed both the front of the truck cabin roof and the windscreen project beyond the front of the crush box). If the reject missed the FOPS and fell at the velocity of gravity, given that the cabin roof had limited stiffness, its capacity to withstand the impact was negligible. If half of the 15% of 10 tonnes (750 kg) falling from a height of 2.7 m had hit the front of the top of the cabin roof it would have been completely crushed. (14) Mr Wiltshire initially stated in answer to the same question in the conclave that the design would have "afforded complete protection" but qualified his answer by stating that the design was achieved in about a week; thus, with limited time. He then added in answer to a question about "post impact flow": WITNESS WILTSHIRE: Yes. The ideal situation would be that all of the chitter is, or the design of the FOPS, or the protective structure, whatever one wants to call it, to the extent that one can, it will have to avoid any material getting into the cab at all. There are, however, constraints on the design. It's not possible to have an unlimited mass of the FOPS. So, there will always be a trade-off between what can be achieve within the design parameters, which includes, it's got to be fitted to a road registered truck. But what Dr Richardson says is a point well made. If the design can avoid any material whatsoever going into the cab, then that's obviously a very good design objective and one that one should try to achieve. But material entering the cab does not necessarily mean that the driver suffers the ultimate injury. It's a compromised design. The weight is important, and testing is definitely required to look at that. I think the early stage testing, the important thing is to get as good an idea as possible of what the loads might be. Otherwise, one is progressing the design without knowing sufficient about what the structure has to achieve. So, in the early stages of testing, I think the important thing is to get whatever information we can because we started off with simply not knowing enough. (15) Even a tiny proportion of a 10 tonne load entering the cabin through the roof had the potential to be serious, if not fatal. That risk would be significantly magnified in the postulation by the prosecutor that 15% of 5 tonnes or 550 kg might come into the cabin through the windscreen. (16) The defendant was correct to submit that the model concept FOPS would not have prevented some reject entering the cabin through the roof (at the front) or the windscreen. I also agree that the computer modelling of the design for Mr Wiltshire's model concept FOPS when properly analysed allowed for reject to penetrate the roof of the cabin. What quantity may enter the cabin was not the subject of modelling. However, small quantities (of the percentages I have mentioned above) had potential serious health and safety implications for the occupant of the cabin. All this followed because the modelling did not provide for covering anything like the whole of the cabin roof and windscreen of Mr Oldknow's truck. 1. Central to the Court's reasons as to why the prosecutor had established the elements of the s 8(2) offence under the OHS Act, vis-à-vis the first particularised measure in particular 9, was the passage of Nash No 1 appearing at [640]-[649], which is extracted below: [640] Stripped of the form of the particulars, and concentrating on the question of liability assessed in the light of the revised model concept FOPS proposed by Mr Wiltshire, there is some force in the prosecutor's submission. The defendant did not require FOPS to be fitted to the vehicles. The report of the experts and their evidence during the conclave was to the effect that it was possible to design a FOPS which could have been utilised to mitigate or lessen the particularised risk by preventing the fall of a substantial proportion of the 10 tonne of reject which fell onto Mr Oldknow's truck falling into the cabin, albeit that the protection afforded by the model FOPS was not such that would have provided complete protection. [641] What is clear is that there was a sharply defined disagreement between the experts about not just timing and costing, as the prosecutor submitted, but the inadequacy of the model in terms of its design parameters (the minimum mass model leads to the prospect of post impact flow into the cabin with dangerous consequences) and testing as to the veracity of the model. [642] Neither lacunae in the model or its development, as identified by Dr Richardson, detracted from the basic proposition that the concept did permit a minimisation or mitigation of the uncontrolled risk and that there existed, as Mr Wiltshire explained, the technology and know-how in 2008 to put the concept, after testing, into commercial application. [643] The evidence demonstrated that the model was something the defendant could have developed, but did not. That it is conceptual in nature does not undermine the viability of the model to afford protection, unless it can be shown that it is incapable of doing so. The evidence does not support that conclusion or that the model is merely a "band-aid" solution. [644] The model is feasible as a measure of protection against a very serious, uncontrolled risk and, in that sense, the bringing of the model to fruition by its installation on the trucks falls within the obligation of an employer under the Act: it was necessary to explore proactively this means of protecting "the men" by the development and installation of FOPS on the trucks. [645] I do not consider that the authorities permit a conclusion that a contravention of s 8(2) might not be found by virtue of the fact, as here, that the safety system did not afford a full means of protection or that it left significantly unchecked an uncontrolled risk. It was not contended that the system proposed might itself create a risk to health and safety. That issue can await consideration in the development of this area of law. [646] The fact the model is conceptual, has flaws in that the modelling is thin and in need of testing and ultimately may leave a significant residue of risk capable of producing serious injury (albeit providing some protection) are matters which, in my view, are relevant to the statutory defence afforded the defendant under s 28(a). [647] However, the question arises as to whether that conclusion may be altered as a result of the particular referring to "adequate FOPS". [648] The use of the adjective "adequate" in particulars in the manner in which the prosecutor has in particular 9 gives rise to a question as to whether the particulars should be construed as one which particularises that the defendant should have eliminated or minimised or mitigated the risk or one which establishes a qualitative differentiation which requires the particular to be tested against whether the proposed model concept FOPS was both feasible and efficacious in obviating the risk or, to employ a dictionary definition, whether the FOPS is proportionate to requirements, sufficient or satisfactory. Presumably, as earlier mentioned, at the very least the measure so particularised may only be proved if the measure is something the employer may have done. [649] It follows that I do consider that the prosecutor has satisfied the Court beyond reasonable doubt that the defendant has breached s 8(2) of the Act by omitting to take the measure in particular 9. 1. Nevertheless, the Court came to the view that the defendant had "overwhelmingly" established, on the balance of probabilities, a defence under s 28(a) of the OHS Act. Whilst the subject of expansion, the primary reasons, in that respect, were as follows (at [652]): [652] The reasons I have come to that view are as follows: (1) no reasonable colliery operator in the position of the defendant could possibly be expected to take a measure (not the ensuring the FOPS was fitted) which did not protect the whole of the cabin roof, the front of the roof and the whole of the windscreen. That conclusion has greater force when the assessment of whether the measure was not reasonably practicable is determined without the benefit of hindsight. (2) It was not incumbent upon the defendant to take a measure which was novel, untested (in particular, the loading had been inadequately tested) and untrialled. The model concept FOPS had not been successfully designed, had never been tested to determine whether it would work at all and had never been in operation. Coextensively with the previous reason, it would not have been reasonably practical for the defendant to take a measure which, on the modelling by the prosecutor's expert, it would have permitted most of the load to have entered the cabin by a penetration made in the front of the roof by the front of the crush box. (3) The prosecutor submitted that the measure of fitting FOPS was obvious given the risk associated with material falling onto the roof of the cabin from Bin 802. There is some substance to this submission given that the duties under the Act require the defendant to effect in essence layers of safety. The fact that the bin had a higher order of functional safety by an engineering control does not overcome that consideration in terms of the statutory defence given the gravity of the offence. However, the defendant is correct to submit that, as at 2008-09, it was not unusual in the Hunter Valley to see a surge bin operated by road trucks without FOPS. After the incident the regulator published a safety alert about the risk in this case. That alert included a number of recommendations none of which incorporated trucks operating mass flow bins at coal mines having FOPS attached to them. (4) Reasonable practicability is to be judged by reference to availability and suitability of ways to eliminate and minimise the risk. This needs to be measured in terms of the only evidence as to a model of FOPS available to be used at the time of the incident. In this respect I accept the submission of the defendant, in application of the principles in Cleary Bros, that the model concept FOPS was not reasonably practicable because: (a) it would not have been of a mass which could have been fitted to a road-registered truck. The risk would be that fitting a FOPS such as the model concept FOPS would not only involve a breach of the law but expose drivers and other road users to detriments to their safety. (b) it would have been highly expensive, time-consuming to implement and costly to operate (resulting in lost payload to the defendant and to the subcontractors when working on other jobs), particularly if it were to be installed on every truck which operated the bin. 1. Mention should also be made to the following passages in Nash No 1 (at [653], [660], [661], [670] and [699]-[703]), which are extracted below: [653] Before expanding upon those reasons, I would note my acceptance of the aid memoire submission that the assessment of questions such as time, cost and effort in implementing a measure need to be balanced against the value of the FOPS structure in reducing the particularised risk. My findings as to the issues with the structure and its design are such that the fitment of the FOPS would be undertaken in relation to an untrialled and untested structure which, on the evidence, would leave, by design, a serious issue as to safety unchecked such that there would still be a serious risk of death or serious injury if the measure adopted as constituting adequate FOPS on the prosecutor's case were applied by the defendant in 2008-09. … [660] I have found the crush box in the model concept FOPS did not arrest or attempt to arrest a hazard vis-à-vis post impact flow which was known to both experts in the consideration of the design of the model. In those circumstances I consider that the question of reasonable practicability needs to be undertaken in the light of adjustments to the model which may remove that deficiency. This is not a matter of accepting the tests sought to be developed by the defendant, with respect to liability, that in considering whether a measure may mitigate a risk for the purposes of s 8(2) there must be an assessment made against a standard that the measure must provide minimisation to the greatest extent possible. Rather, the question, in this context, is whether it is reasonably practicable for an employer to adopt a measure which is known, on a scientific or engineering basis, to be deficient in providing for the health and safety of workers (that is, truck drivers) where modelling is available to rectify that deficiency. Put in another way, in examining whether it is reasonably practicable to comply with the provisions of s 8(2) (see Hunter Quarries at [80]), where the measure propounded in the particulars is based upon a construct which is conceptual in nature (and subject to testing), it would be entirely artificial to test the efficacy and viability of the measure in the absence of design features which are known to be required to make the measure practicable to provide for the health and safety of workers (and the development of the model). [661] It may be noted, in that respect, in cross examination Mr Wiltshire acknowledged both the need to increase the size of the crush box if the cabin including the windscreen were to be protected with the consequent increase in the stresses on the crush box and the bending moments at the support posts. That concession alone raises issues about Mr Wiltshire's estimate for the mass of the FOPS. At the very least, it requires that the model concept FOPS be judged in the light of what was necessary to meet the health and risks arising from the post impact flow. The concerns, in this respect, were the length, width and depth of the crush box (in order to avoid that consequence). It shall be sufficient for the purposes of this judgment to focus upon the length of the crush box as, to add that change would, on the evidence, eliminate or minimise post impact flow reaching the cabin via the roof or windscreen. The introduction of that feature to the crush box demonstrates, in part, the measure proposed is not practicable. … [670] My impression is that Dr Richardson was far more cautious as an expert when it came to designing and developing safety critical equipment such as the model concept FOPS, particularly having regard to its novelty and untested and untrialled nature. It is of particular significance, in my view, that Mr Wiltshire's approach to his design task was not to design a structure which would provide protection to the cabin's occupants from injury (due to a load of reject falling onto the cabin of a truck) but to design minimum mass structure which would absorb the impact forces of such an event. During the concurrent evidence Mr Wiltshire accepted that his design was "mass sensitive" and that it was compromised in that respect. … [699] This leads to the overall conclusion that if reasonable practicability is to be judged by, as it must be, reference to the availability and suitability of ways to eliminate or minimise a risk, the evidence in this case demonstrates that the measure of FOPS being fitted to the truck operating Bin 802 did not meet those criteria. The prosecutor accepted that, as a matter of logic, the weight of the crush box when taken with the weight of the reject in the truck's bin had the capacity to exceed the permissible weight applied to the front axle. However, it was considered that the mechanisms proposed or a reduction in payload would overcome that difficulty. I have rejected that submission but note that, as the defendant submitted, the submission by and large ignores considerations of safety as well as the manufacturer's requirements. As earlier observed, actual load limits were not confined to protection and preservation of roadway infrastructure – they raised safety issues. [700] As has been found, upon the necessary lengthening of the crush box, the payload available for the truck bin would be significantly reduced. [701] The prosecutor sought to meet those difficulties by leading evidence by Messrs Wiltshire, Samuels and Dikranian as to modifications to Mr Oldknow's truck beyond fitting a FOPS. One tranche related to the movement rearward of the bin to allow for the installation of the model concept FOPS between the cabin and the bin. This second tranche again involved a movement of the tipper bin rearward but also involved shortening of the bin. This arises from the combination of the weight loading that the FOPS places on the front axle and the effect this has on the capacity of the truck to carry payload. [702] Based on the aforementioned findings, it is plain that the mass imposed on the front axle of the T401 would leave no room for any reasonable payload and raise axle load limit issues such that the effect of the evidence led by the prosecutor as to modifications to the truck bin was that a FOPS would not be able to have been installed and thus be effective to ensure safety, unless in addition to installing the FOPS, the modifications were made. [703] There is substance in the defendant's submission that the extent of the modifications to the tipper bin to allow the payload to be maximised would itself suggest that it was not reasonably practicable for the defendant to comply with its duty under s 8(2) by taking a measure to ensure the trucks were fitted with "adequate overhead fall protection". However, the more significant consideration, as I have found, is that the modifications of the bins fall outside the particulars of the charge. I agree with the submission of the defendant that to take into account the evidence as to an omission to modify the trucks would be to take into account a measure which was not identified in the application for order and therefore contrary to authority. 1. I also refer to, in relation to the second particularised measure in particular 9, the passage at [733]. The Court stated: [733] Despite the potential significance of this issue in relation to this particular, this part of particular 9 received scant attention from the prosecutor. This is reflected in the reply submission of the prosecutor in which it was said that the fitting of FOPS was "dealt with as a matter of principle" and there was "nothing in the design or modelling that indicates that the fitting of FOPS to a cab over an engine truck would not have been reasonably practicable". It was also accepted during the "running of this matter that mine trucks would have mitigated the risks" and that the fact that the defendant moved to use mine trucks after the incident indicated they were "safer". Particular 11 1. The discussion as to this particular was somewhat complex and essentially involved a question as to whether the prosecutor had discharged the burden of proof that conducting a risk assessment of the risks inherent in the system of waste management would have eliminated or minimised the particularised risk. 2. The Court's conclusions as to liability, in this respect, is expressed in Nash No 1 at [831]-[834] as follows: [831] From the standpoint that s 8(2) of the Act imposes an absolute liability on employers, subject always to any defence that may arise: Hunter Quarries at [76], I consider that the prosecutor has proved beyond reasonable doubt that the measure particularised would have mitigated the risk. Without the need to undertake any other task than consulting the previous risk assessment, the Connell Hatch Risk Assessment, the defendant would have learnt that Bin 802 had not been risk assessed as to its mode of operation at the time the defendant became the operator of the surface operations at the Mine. That factor alone would have identified the need to conduct a risk assessment. It would have also identified the need to re-assess hazards associated with Bin 802 which may have arisen as a result of changes to the fundamental underpinnings of the operation of the system, namely, the truck haulage process. By the obligation on the defendant to be proactive in ensuring the health and safety of persons not in its employment within that operation, it was necessary to seek out uncontrolled risks including those which were quiescent. [832] From the viewpoint of functional safety, the risk assessment, on Mr Punch's evidence, would have initiated an investigation into the safety integrity of the system. This would not have guaranteed the risk would be identified but would increase, on his evidence, the likelihood that the risk would be found; thereby, as earlier discussed, mitigating the risk. [833] There can be no doubt that the likelihood of uncovering the uncontrolled risk in the circumstances earlier discussed was remote. That did not entail the risk assessment being a futility and there was certainly no evidence that the nature of the uncontrolled risk was such that it was impossible to uncover. If complex electronic systems are to be employed to provide for the health and safety of workers then it follows that employers must be adept, in the ordinary course, in searching out risks which, by the very nature of those systems, will provide for difficulties of detection and control. None of those difficulties alleviate the strict obligations falling upon employers under the Act. That does not rob the employer of recourse to defences, as I will discuss below, in the particular circumstances in which they operate but it does speak to the nature of the liability imposed upon employers under the Act. [834] In my view, the prosecutor has proved beyond reasonable doubt the omission in particular 11 and, in particular, that the measure would have minimised the risk to the safety of Mr Oldknow on 18 February 2009 (and the other particularised truck drivers, if applicable). 1. The Court's conclusion that the defendant had made out a defence under s 28(a) of the OHS Act was expressed in [837] of Nash No 1. I draw particular attention to [837(3)], which is extracted below: (3) Whilst it was not impossible that a risk assessment would have uncovered the flaw, it was highly unlikely to the point of being remote. It should be emphasised, there was no record that any modification had been made to the software logic and Mr Ambrose made no report of the detail of the amendments. Mr Barnes, if asked, would have simply verified that, after commissioning and the amendments to the software logic were made, the system achieved the functionality that was required vis-à-vis the Functional Description document. RELEVANT PRINCIPLES: COSTS OF SUMMARY CRIMINAL PROCEEDINGS 1. The leading decision on costs for defendants in summary criminal proceedings is Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 ("Latoudis"). This remains the case after the enactment of s 257C of the Criminal Procedure Act, including in cases under the OHS Act: see Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 ("Bulga") at [219]-[221]. Support for that conclusion is also available from the judgment of the Court of Criminal Appeal in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [68]-[70] (per Basten JA); noting that appeal concerned proceedings under the WHS Act (the Court followed Bulga). 2. The parties agreed upon the relevant principles to be derived from that judgment, which I consider to be correct. Those principles were as follows: 1. Subject to any contrary legislative indication, costs in summary proceedings do not follow the event and a successful defendant in such proceedings has no right to an order for costs: Latoudis at 568-569 (per McHugh J). 2. A successful defendant in summary proceedings ordinarily has a reasonable expectation of obtaining an order for the payment of his or her costs on the basis that it is just and reasonable that the prosecutor reimburse him or her for liability for costs which have been incurred in defending the prosecution: Latoudis at 544 (per Mason CJ), 565 (per Toohey) and 569 (per McHugh J). Toohey J spoke of it being "unnecessary to speak in terms of a presumption" but rather that "ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket" (Latoudis at 565). 3. The purpose of a costs order is not to punish the unsuccessful party but to compensate the successful party: Latoudis at 567 (per McHugh J). 4. A court ought not to exercise its discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation: Latoudis at 569 (per McHugh J); see also at 565 (per Toohey J). 5. The fact that a prosecutor has acted in good faith in the public interest is not a ground for depriving a successful defendant: Latoudis at 569 (per McHugh). 6. 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: Latoudis at 544 (per Mason CJ) and 565 (per Toohey J). 7. Circumstances in which it may not be just and reasonable to order costs against a prosecutor or to order payment of all the defendant's costs include, but are not limited to, the following: 1. Where the defendant has by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself: Latoudis at 544 (per Mason CJ). 2. Where the defendant has declined to take up an opportunity of explaining his or her version of events before a charge is laid: Latoudis at 544 (per Mason CJ) and 565 (per Toohey J). 3. Where the defendant fails to disclose evidence later successfully used in cross-examination of the prosecutor's witnesses: Latoudis at 569 (per McHugh J). 4. Where the defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, for instance by unnecessary cross-examination: Latoudis at 544 (per Mason CJ) and 565 (per Toohey J). 1. I agree with the submission advanced for the prosecutor that a complementary proposition to that referred to at [48(3)] above is that there may be grounds connected to the charge itself or the conduct of the litigation that militate against an award of costs in favour of a successful defendant. Insofar as the conduct of the litigation is concerned, that is reflected in the propositions at [48(7)] above. 2. The prosecutor submitted, however, that it needs to be "steadily borne in mind when applying Latoudis that that matter did not concern a statutory offence in which the defendant bore an onus to make out the defence provided for under the OHS Act". That was described as a significant difference. It was contended that the prosecution under the OHS Act did not concern typical criminal matters. Whilst, the prosecutor proved particulars 9 (as to the first measure) and 11 beyond reasonable doubt; the charges were nonetheless dismissed because the defendant made good a statutory defence (noting the remainder of the particulars were not proven beyond reasonable doubt). 3. The defendant recognised Latoudis did not deal with "regulatory offences" (involving "strict" liability) but contended that the general principles as to costs in summary proceedings nonetheless applied. Thus, the principles in Latoudis applied. The approach of the prosecutor as to the application of those principles, it was submitted, should be rejected as being inconsistent with Latoudis and its application by the Court of Criminal Appeal in matters such as the present one. 4. It was also submitted by the defendant that if the prosecutor's approach was accepted, the effect of the judgment in Latoudis would be reversed as it was common place for prosecutors to establish a "prima facie" case in a strict liability regime, with charges only being dismissed when a defendant made out a statutory defence. 5. I will return to those issues of principle after discussing more broadly the parties' submissions. SUBMISSIONS OF THE PARTIES Defendant's Submissions 1. The primary case for the defendant consisted of the following propositions: 1. There has been no conduct of the defendant which unreasonably induced the prosecutor to think that either charge could successfully be brought against the defendant or which unreasonably occasioned unnecessary expense in the institution or conduct of the proceedings: Cf Latoudis at 569 (per McHugh J). 2. A successful defendant cannot be deprived of his, her or its costs because his, her or its conduct gave rise to a suspicion or probability that they were guilty of the offence charged: Latoudis at 570 (per McHugh J). 3. There is no other reason why an order should not be made that the prosecutor pay the defendant's costs of the proceedings. 1. Nevertheless, what followed in the contest as to costs was substantially framed by submissions advanced by the prosecutor responsively to the defendant's primary submissions. I will, therefore, commence with an examination of the prosecutor's submissions as to costs rather than a further exposition of the defendant's submissions at this stage. Prosecutor's Submissions 1. Save for particulars 9 and 11 of the s 8(2) charge, the remaining particulars alleged in that charge were in substantially the same terms as the particulars in the s 10(2) charge or at least sufficiently similar that the evidence with respect to those particulars was the same. 2. The prosecutor did not prove the s 10(2) charge (or the counterpart particulars of the s 8(2) charge) and, in that respect, the prosecutor would not contest an award of costs. 3. Particulars 9 and 11 of the s 8(2) charge were concerned, respectively, with the alleged failure on the part of the defendant to ensure that the trucks driven by the drivers had adequate fall protection installed and a failure to conduct or commission an adequate risk assessment. 4. Two issues associated with particulars 9 and 11 attracted the greatest amount of evidence and hearing time and, consequently, costs of the proceedings. By comparison, the evidence as to the remaining particulars was small both in volume and in terms of the amount of court time. 5. It is also significant, it was submitted, that in respect of particulars 9 and 11 of the s 8(2) charge, the Court found that the prosecutor had proved the contravention beyond reasonable doubt, but the defendant had satisfied its onus of proving, on the balance of probabilities, that it was not reasonably practical for it to have complied with s 8(2) of the OHS Act in those respects. 6. Balancing the interests of justice and providing for equity between the parties, should result in the prosecutor and the defendant paying their own costs with respect to that part of trial concerning particulars 9 and 11. 7. The prosecutor's submissions as to the significance of the nature of a regulatory scheme, which placed the onus upon a defendant to establish a statutory defence, has been earlier discussed. In oral submissions, the prosecutor submitted that s 28 of the OHS Act operated in such a way that the provision is not engaged unless an offence has been proven, namely, the defendant has failed to comply with a provision of the OHS Act. This is amply demonstrated by s 28(b) of the OHS Act. That provision operated, it was submitted, where "the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision". The reference to the commission of an offence in that context is demonstrative of the provision only being engaged when an offence is proven. The statutory defence does not concern the elements of the offence the prosecutor is required to prove. The proof of a defence in this case required much less time and costs than proof of the s 8(2) offence per particular 9. Further, the defendant did not admit the offences, subject to any statutory defence. 8. Where a defendant's successful defence of a summary prosecution ultimately turned on it successfully establishing a positive defence to a contravention that the prosecutor proved beyond a reasonable doubt, it is just and reasonable for the Court to decline to order the prosecutor to pay the defendant's costs. That is because in most criminal cases the prosecution will bear the onus of proving the elements of the offence beyond reasonable doubt and the defendant has no obligation to prove anything. In those circumstances, the prosecutor may be expected to have before it sufficient relevant evidence upon which to determine whether the prosecution has reasonable prospects of success prior to commencing the proceedings. 9. By contrast, where the defendant successfully makes out a defence to a proven contravention particularly on the basis of material not available to the prosecutor before the proceedings have been commenced or before the hearing of the proceedings commences, the prosecutor has been deprived of an opportunity to consider all of the relevant evidence to determine whether the proceedings should be commenced prior to doing so. 10. This is such a case, as the prosecutor did establish the contravention with respect to particular 9 and 11 beyond reasonable doubt and the charges were dismissed only after the defendant made out a successful defence. 11. Moreover, in the case of particular 9, the prosecutor was not made aware of evidence upon which the defendant proposed to rely until some time after the trial had commenced and at a time when the prosecution case was close to finishing. 12. Prior to 29 March 2016, there was no evidence available to the prosecutor that suggested that it was not reasonably practicable for the defendant to have ensured that the trucks driven "by the men" had adequate FOPS. By that date the Court had heard over 27 days of evidence. On that occasion, the defendant adduced evidence upon which it intended to rely to prove a matter with respect to the onus it bore. Whilst that occurred before the close of the prosecutor's case it was very near the end of that case. 13. Additionally, the defendant conducted its defence in a way that prolonged the proceedings unreasonably. This included the late service of the expert evidence of Dr Richardson and other experts, which necessitated adjournments of the proceedings so that the prosecutor could obtain its own expert reports. It also included unnecessary and prolix cross-examination of prosecution witnesses and the tender of a large amount of documentary material, much of which was admitted provisionally because its relevance was not immediately apparent. 14. The prosecutor made further submissions regarding the disentitling conduct of the defendant as to the first particularised measure in particular 9 of the s 8(2) charge, which in summary were follows: 1. The late service of Dr Richardson's report resulted in the prosecutor seeking an adjournment to obtain its own expert reports. 2. There was no evidence available to the prosecutor to suggest it was not reasonably practicable for the defendant to have ensured the truck drivers by then had adequate FOPS (after 27 days of hearing). 3. Richardson Reports 1 and 2 (were tainted by errors concerning the force applied (identified by Mr Wiltshire in Wiltshire Report 1 at paras 16-20 and as acknowledged by Dr Richardson during oral evidence (see T2398-2399) (see also the Joint Report at paras 20-23). 4. In order to establish the first particularised measure of particular 9, the prosecutor has to prove all elements of the offence as they applied to that particular. The Court found the prosecutor had done so by reliance upon an "energy absorbing FOPS case". That case was contested. The prosecutor was required to prove that the energy absorbing FOPS would eliminate all risk. 5. The prosecutor demonstrated that the report of Dr Richardson had only dealt with energy resistance and not energy absorbing FOPS. It was only in the conclave that Dr Richardson recognised that some form of energy absorbing FOPS may be used to absorb energy and mitigate risk. 6. Latoudis was not dealing with this type of offence. The judgment does not provide "an answer in every situation where a prosecutor was unsuccessful". The use of the expression prima facie case by the defendant is wrong. As a matter of law, the offences under the OHS Act must, subject to a statutory offence, be proved. The presumption of innocence was central to the reasoning in Latoudis. It did not apply here. 7. The Court should not put at zero that the prosecutor proved the elements of the offence. The prosecutor only failed in meeting a case (vis-à-vis the defence) where it did not have the onus. 1. In order to do justice between the parties the Court has a jurisdiction to apportion costs. If the Court did not accept the prosecutor's primary argument, the Court should consider apportionment. Defendant's Response 1. The defendant submitted that the contention that the defendant should not have a reasonable expectation of obtaining an order for the payment of costs where, in summary proceedings, the defendant has succeeded in proving a defence under the OHS Act, contrary to establishing that the prosecutor had not prima facie established the particulars of the charge beyond reasonable doubt is an unwarranted gloss upon the words of the statute, contradicts the decision in Latoudis, and has no principled basis. 2. The prosecutor pointed to no authority to support her assertion that, in circumstances where a statutory defence is established to a proven contravention, it is just and reasonable for the Court to decline to order the costs against the prosecutor. 3. In Latoudis, albeit in the minority, Dawson J considered that to differentiate a case in which a defendant properly escapes conviction without having positively established innocence, from one in which a defendant has positively done so, "would be invidious and inconsistent with the presumption of innocence" (at 560). The majority did not dissent from this statement. It is respectfully submitted that the prosecutor's contention merits the same conclusion. The prosecutor's submission suggests that the way in which the defendant was able to establish its innocence is significant to the decision-making process under s 257C of the Criminal Procedure Act. As indicated above, such an approach has no support in the OHS Act, contradicts the principles of Latoudis and lacks a principled foundation. 4. Section 28 of the OHS Act entitled the defendant to dismissal of the s 8(2) charge if it established the particularised measures were not reasonably practicable. Parliament could have made a distinction when authorising an award of costs to a successful defendant in such a case but has not done so. With respect, it was submitted, it is not for the Court to remodel the discretion to award costs conferred by s 257C in the absence of authority in the statute to do so. The legislature specifically preserved the capacity for the award of costs in proceedings under the OHS Act, namely, the present proceedings from exclusion that may otherwise apply. 5. In the case of the s 10(2) charge, the prosecutor's submission has no application in any event as the Court dismissed this charge without reference to the statutory defences. The defendant is entitled to its costs on each charge brought before the Court. 6. The defendant also submitted that the establishment of a prima facie case by the prosecutor was irrelevant to the question of costs. The following submission was made: 21. Whether the Prosecutor considered that it had a prima facie case before commencing the proceedings, and the fact that the Court found that there was a prima facie case made out in relation to particulars 9 and 11, are irrelevant to the consideration of the Defendant's innocence, and inconsistent with the principles of Latoudis v Casey. This is particularly so given the statutory scheme provides for absolute liability offences, subject to establishing a statutory defence. In any event, it is difficult to understand on what basis the Prosecutor believed she had a prima facie case in relation to particular 9 given that the Prosecutor did not know what the basis of their FOPS case was until after she engaged Mr Wiltshire (after the Defendant served Dr Richardson's report on 29 March 2016). This is even more so given that the Prosecutor's case on FOPS changed throughout Mr Wiltshire's evidence. 1. The defendant's contentions on the first particularised measure in particular 9 may be considered in two parts. First, it was submitted in written submissions in reply as follows: 14. The Prosecutor submits that the Defendant prolonged the proceedings unreasonably, by serving the expert evidence of Dr Richardson on 29 March 2016 in addition to tendering voluminous material and "unnecessary and prolix cross-examination of prosecution witnesses" [at [335]]. 15. With respect, this submission is opportunistic and does not accord with the account of the proceedings as accepted by this Court. The Court accepted the submission by the Defendant [at [572]]: 13. Thus, it was not until the Defendant served Dr Shane Richardson's first report that there was evidence regarding this issue in the proceedings. As has been submitted orally, the function of that report was not, as was suggested for the Prosecutor, to make a case that a FOPS or a particular type of FOPS was not reasonably practicable. It was to make a case that: (a) there was only one Australian Standard for the design and construction of FOPS; (b) it did not apply to road-registered trucks, an (c) a FOPS built to that Australian Standard would not have been effective to withstand the impact of a drop of either 5000 kg (5 tonnes) or 10000 kg (10 tonnes) of coal chitter from Bin 802. 14. In other words, Dr Richardson's Report 1 was evidence tending to prove that a FOPS would not have ensured the safety of any driver on the night of 18 February 2009, thereby disproving any case by the Prosecutor on particular 9. 15. As the Court knows, the Prosecutor then engaged Mr Richard Wiltshire, and, in the course of Mr Wiltshire's researches, he approached Mr Jeff Samuels at QMW Industries to assist him with practical knowledge that he did not have. 16. As identified in the submission accepted by the Court, until the service of the report of Dr Richardson by the Defendant, there was no evidence upon which the Court could consider particular 9. Despite having commenced proceedings on 15 February 2011 and having substantially amended the charges on 11 June 2013, up until the service of Dr Richardson's report there was no expert evidence regarding FOPS that the Prosecutor had indicated would be part of her case. Furthermore, as identified by the Court [at [573]]: The prosecutor did not disclose that its case was predicated on energy absorbing principles for FOPS. That case only emerged post Dr Richardson's reports (1 and 2) and, in fact, much later in the trial. 1. The defendant contended that, at the time of the service of Dr Richardson's first report, there were no relevant Australian Standards bearing upon the defendant's operations which were the subject of the charges. That evidence led to the prosecutor changing the way it pursued particular 9, in terms of the first particularised measure. 2. The defendant's written submissions in reply then continued, as follows: 17. That the Prosecutor had failed to adequately consider its case prior to the hearing commencing on 15 February 2016, or even prior to the service of Dr Richardson's report on 29 March 2016, is not something that should result in a diminution of the Defendant's reasonable expectation it should receive a costs order if successful. This is particularly so in circumstances where the Defendant has been found to have demonstrated it was not reasonably practicable to do as the Prosecutor alleged. Even more so, in circumstances where the Prosecutor formed a view before 15 February 2011 that it had sufficient evidence to establish a prima facie case. This was despite the Court finding [at [582]]: The evidence disclosed that no energy absorbing FOPS structure existed anywhere in the world in 2008 (or 2016). Whilst Mr Wiltshire gave evidence that the technology to devise and construct such a structure was available and widely known when used in other appliances in 2008, the concept devised, even in 2016, was entirely novel and "an exploration of feasibility". The particular neither specified energy absorbing FOPS nor the modification of vehicles to accommodate them, (emphasis added) 18. Moreover, the case for the Prosecutor on particular 9 ultimately went forward solely upon the basis of the model concept FOPS developed by Mr Wiltshire [at [571]]. The Prosecutor did not particularise this, and certainly not prior to 29 March 2016. As the Court found, that the Prosecutor's case was predicated on energy absorbing principles for FOPS emerged subsequently to the service of Dr Richardson's evidence "and, in fact, much later in the trial" [at [573]]. It was always open to the Prosecutor to withdraw its particular 9 during the hearing once it received Dr Richardson's report, which would have saved the costs of the remaining hearing days arguing over a model concept FOPS proposed by Mr Wiltshire that was not available at the time of the hearing, let alone prior to the incident in February 2009. 19. The Prosecutor's complaints as to the Defendant's conduct of proceedings ought not be grounds on which the Court exercises its discretion as to costs against the Defendant. As submitted above, the Defendant ran its case well within its rights. As submitted above, this was a complex piece of litigation involving a number of disparate issues which all had their own complexities. The complexity and technicalities of many contested matters in these proceedings, including the history of the ownership of the mine and the complex evidence about the choice of trucks, necessitated the tender of evidence. Ultimately, at least so far as the particular 9 matter is concerned, the Defendant "overwhelmingly established a defence" [at [651]] (emphasis added). The Defendant submits that all steps taken in establishing its defence were, in all the circumstances necessary. [Footnotes referring to authority included within quote.] 1. As to the timing of the service of Dr Richardson's report, the defendant provided the report earlier than it was required to do, absent any orders from the Court. The defendant gave notice of an issue raised in its defence. Further, there could have been no reasonable expectation in the defendant that the service of its report could have resulted in such an expenditure of time and costs in the proceedings as the time and costs derived from the prosecutor's exploration of an energy absorbing FOPS. The time taken by the prosecutor to develop evidence on the issue was considerable and it may be doubted that earlier service of Mr Richardson's first report may have produced any saving of time. Rather than withdrawing that particular of the charge, the prosecutor effectively relied upon further particulars and a "different FOPS". 2. That different system of FOPS did not exist at the time of the incident (or at the commencement of the proceedings). The issue took on a "life of its own" as further adjustments were made to a new and untested model to make it workable. 3. Whether Mr Richardson made a mistake or not in some of his calculations in Richardson Report 1, the ultimate finding of the Court was, as Dr Richardson opined, energy resistant FOPS would not have worked. Thus, the prosecutor had not considered the issue of how it may prove the offence under s 8(2) with respect to the first particularised measure in particular 9. After Dr Richardson's report, the prosecutor brought a new case as to the first particularised measure in particular 9. 4. Further, even as to energy absorbing FOPS, the Court found that the modification to trucks to make it work fell outside of the particulars. Even though the charge was found under absolute liability to be proven, the Court found that there was "great difficulty" in actually making the FOPS model prepared by the prosecutor work. 5. As to particular 11, the defendant submitted: 20. In its judgment, the Court has set out the bases upon which the Defendant established its defence to particular 11,The reasoning identifies a number of the matters, identified earlier in these submissions, which required detailed cross examination to address the complex, lengthy, disparate issues and the technical matters which were required to be led by the Defendant in order for the precise nature of the Prosecutor's case to be fully understood and in order to make out its statutory defence. The Court's reasons do not identify any reason as to why the Defendant would be disentitled to its normal expectation that it would be able to recover its costs, having been acquitted of the particular. 1. As to the prosecutor's contention relating to the conduct of the proceedings, more generally, the defendant submitted: 11. The Defendant conducted the proceedings with propriety throughout. 12. The charges brought by the Prosecutor contained allegations of failures to ensure safety which were technically complex, disparate and lengthy, all of which meant the Defendant had to engage in signification cross examination, to establish facts, for example, such as how the reject bin operated, based on its PLC programming. This is demonstrated by the inclusion in the Court's judgment of the detailed facts that were tendered by the Defendant to assist the understanding not only of the factual basis for how the reject bin operated, but also the various historical facts regarding ownership and changes therein, and events that lead to the circumstances of the incident. Furthermore, these facts also summarised or adverted to the evidence that the Defendant had to adduce in cross examination of various witnesses so that basic concepts upon which the Prosecutor's case relied, could be understood. 13. Perhaps one of the significant ways in which the complexity and length of the technical matters present in the trial can be demonstrated, is the explanation as to why it was that it took the Prosecutor more than three years to have its expert identify the flaw in the programmable logic that enabled the incident to occur. The Defendant's submissions in this regard, were accepted by the Court. [Footnotes omitted.] 1. Finally, the defendant submitted the applicable authority on apportionment was Bulga at [220]. However, it was submitted apportionment did not apply, as there is no instance of the defendant having failed in its case. CONSIDERATION 1. The final disposition of the prosecution brought against the defendant for offences under the OHS Act in these matters occurred in the summary criminal jurisdiction of this Court. Upon the dismissal of these proceedings, namely, the charges brought for offences under ss 8(2) and 10(2) of the OHS Act, the Court was seized of a discretion to award costs against the prosecutor pursuant to s 257C of the Criminal Procedure Act. 2. In submissions directed to the exercise of that discretion both parties focused attention upon the determination of the Court as to the first particularised measure in particular 9 and, to a lesser extent, particular 11 of the s 8(2) charge ("the subject particulars"). The prosecutor conceded that the defendant should have costs with respect to the s 10(2) charge (and the counterpart particulars of s 8(2) charge). The disposition of the costs issue shall proceed upon that foundation, noting that the prosecutor's primary position was that each party should pay its own costs with respect to that part of the proceedings concerning particulars 9 and 11 (the prosecutor did not distinguish, in that respect, the second particularised measure in that contention but it is consistent with her overall submissions on costs that the costs of that particular measure should be treated in the same manner as the s 10(2) charge). 3. Latoudis is the leading authority setting principles for the exercise of a discretion to award costs in criminal summary proceedings. The relevant principles deriving from the High Court have been distilled earlier in this judgment. 4. The prosecutor submitted that the Court should cautiously approach the application of Latoudis in the context of the case of the public regulatory offences of the kind found under the OHS Act for a number of reasons which are discussed more fully in the earlier summary of the prosecutor's submissions but may be encapsulated here as comprising of the following: 1. Under that scheme the defendant bore the onus of making out a defence to the civil standard. The defendant discharged that onus with respect to the subject particulars. 2. That defence was only enlivened after the prosecutor had proven beyond reasonable doubt the elements of the offences charged, under ss 8(2) and 10(2) of the OHS Act for particularised risks and measures. The prosecutor had proven beyond reasonable doubt the respective charges with respect to the first particularised measure in particular 9 and particular 11 of the s 8(2) charge. 3. In typical criminal cases, the prosecutor may be expected to have evidence before it to determine whether a prosecution has reasonable prospects. Often times, the defendant will make out a defence on material not available to the prosecution before the hearing commences in circumstances where the defendant is peculiarly placed to know and acquire such evidence. 4. Thus, in this case, the defendant produced evidence after 27 days of hearing as to the first particularised measure in particular 9 to prove that FOPS were not reasonably practicable for the purposes of s 28(a) of the OHS Act. The defendant bore the onus to make out that defence. 5. There was no evidence available to the prosecutor that the particularised FOPS were not reasonably practicable. The prosecutor ultimately proved the elements of the first particularised measure of particular 9 by its reliance on energy absorbing FOPS but that evidence did not satisfy the Court that the measure was reasonably practicable for the purposes of s 28(a) of the OHS Act. 1. It is unnecessary to resolve the issue of principle raised by the prosecutor in those submissions as, in my view, even if the application of Latoudis as espoused by the prosecutor (the prosecutor did not appear to argue Latoudis was to be distinguished as such) was applied in these matters, upon a proper appreciation of the conduct of the trial and ultimately the parties with respect to subject particulars, it would nonetheless be appropriate to make an award of costs in favour of the defendant. 2. My reasons for that conclusion, with respect to the first particularised measure, are as follows (each of which derives from findings in Nash No 1 and some of which stands as a rejection of the prosecutor's submissions as to the course of the proceedings): 1. Even though the Court found the first particularised measure to be valid, it also found the means by which the defendant discerned the prosecutor's case as to this measure was by the production of the expert evidence of Mr Wiltshire. There was nothing on the face of the particular, the opening address of the prosecutor or evidence led in the prosecutor's case at trial, prior to the evidence of Mr Wiltshire much later in the proceedings, which disclosed that the adequate overhead fall protection relied upon by the prosecutor to establish the first particularised measure in particular 9, was the model concept FOPS or an energy absorbing FOPS. The model required development by Mr Wiltshire during the trial. 2. Having regard to earlier stages of the trial, the Court accepted the submission of the defendant that it appeared particular 9 was drafted on the basis of the prosecutor's view that the hopper bin was designed to be used by mine trucks fitted with FOPS, such as a CAT 773 mine truck. By the end of the case, there was no evidence that such a truck could withstand the impact of 10 tonnes of chitter dropped from Bin 802. As noted in Nash No 1 (at [733]), despite the potential significance of the second particularised measure of particular 9, it had received scant attention by the prosecutor (the particular was ultimately dismissed in Nash No 1 by the giving of short reasons). 3. It followed that the service of Dr Richardson's report was the first evidence in the proceedings directly concerning the first particularised measure, notwithstanding the prosecution commencing on 15 February 2011 and a substantial amendment to the charges being allowed on 11 June 2013. That evidence was not initially led as to the statutory defence (as it was later employed) but to disprove the first particularised measure in particular 9 of the s 8(2) charge. In other words, it went to the question as to whether the prosecutor had proved particular 9 of the s 8(2) charge beyond reasonable doubt. That was because the evidence went to: 1. there was only one Australian Standard for the design and construction of FOPS; 2. it did not apply to road-registered trucks, and 3. a FOPS built to that Australian Standard would not have been effective to withstand the impact of a drop of either 5,000 kg (5 tonnes) or 10,000 kg (10 tonnes) of coal chitter from Bin 802. 1. Whatever the error in the equation used by Dr Richardson in Richardson Reports 1 and 2, alluded to in a footnote to the prosecutor's submission (this submission seems to also include a reference to the absence of a safety factor in the Australian Standard referred to by Dr Richardson), the Court accepted the evidence of Dr Richardson that, applying the only available Australian Standard for FOPS at the time of the incident giving rise to the charges, the fitting of FOPS designed to that standard to a relevant truck would not have been able to withstand a fall of either 5,000 kg falling approximately 3 metres in 1 second or 10,000 kg of coal reject falling approximately 3 metres in 2.5 seconds (these measures were designed to replicate the fall at the time of the incident). In other words, an energy resistant FOPS would not have withstood the fall of chitter relevant to the prosecution. The particular could not have been proven beyond reasonable doubt in the light of that evidence, absent other evidence as to how an adequate FOPS could have been applied. 2. Those circumstances and the course of the trial after the service of Dr Richardson's evidence are demonstrative of the fact that at the time of the service of Dr Richardson's first report (near the close of its case), the prosecutor had not disclosed its case on the first particularised measure of particular 9 was predicated on energy absorbing FOPS. That case only emerged after the prosecutor engaged Mr Wiltshire in the aftermath of the service of Dr Richardson's evidence. Until the service of Dr Richardson's report there was no expert evidence regarding FOPS that the prosecutor had indicated would be part of her case. The passage of time that was then required to obtain Mr Wiltshire's evidence amply demonstrated that the prosecutor had not adequately obtained evidence as to energy absorbing FOPS prior to the commencement of the trial on 15 February 2011 or even by the time of the service of Dr Richardson's report on 29 March 2016. 3. What followed was a significant expenditure of time, in the trial, by the prosecutor proving that particular based on an energy absorbing FOPS in a context where there had been no prior particularisation of that form of FOPS. The defendant correctly submitted that the issue of an energy absorbing FOPS took on a life of its own as further adjustments were made to the model by Mr Wiltshire. 4. Having regard to the absolute or strict duty imposed by s 8(2) of the OHS Act, the Court found (Nash No 1 at [640]-[644]) that, notwithstanding serious defects in the model concept FOPS, because it did afford some minimisation or mitigation of an uncontrolled risk (in the sense of the particular) the bringing of the model to fruition by development and installation of such a FOPS, fell within the duty involving the obligation to be proactive. 5. However, the findings of the Court as to whether the defendant made out a statutory defence also cast a light on the conduct of the prosecutor's case. 6. The evidence revealed there were no structures of the kind anywhere in the world in 2008 or at the time of the reports of Mr Wiltshire being prepared after the commencement of the trial. The structure was entirely novel, untried and not adequately tested. The model required modification during the course of the proceedings both as to the principles underpinning the development of the FOPS structure and the modifications required of truck and dog combinations to adapt to the installation of the energy absorbing FOPS. The model's emergence during the trial was described at [580]-[585] and [587]-[590] of Nash No 1 (extracted above). The Court made a finding that some of the modifications required to vehicles to accommodate the model concept FOPS fell outside the particulars of s 8(2) charge – see [703] of Nash No 1. 7. Further, whilst the model concept FOPS provided a degree of protection, albeit via an untrialled and untested structure, the design left a serious issue as to the safety unchecked such that there remained, even after the considerable time spent on its development by Mr Wiltshire during the trial, a serious risk of death or serious injury if the measure were adopted. Further the Court found that no reasonable colliery operator in the position of the defence could possibly be expected to take a measure which did not protect the whole of the cabin roof and that it was not incumbent upon the defendant to take a measure that was novel, untested and untrialled. 8. A significant portion of the trial, as illustrated by Nash No 1, was spent in the contest as to the first particularised measure in particular 9. Putting aside the first two reports of Dr Richardson concerning the proof of the particular, a substantial amount of the time was spent in the prosecution's case, unsuccessfully, resisting the defendant's statutory defence of that particular. 9. There was nothing, in my view, about the manner of the defendant's service of Mr Richardson's first two reports which represented disentitling conduct as to costs. There was no obligation to serve them earlier in time and, in particular, before the close of the prosecutor's case, particularly in circumstances where the prosecutor had not produced any tangible evidence in proof of particular 9. Further, I accept the submission of the defendant that, on the evidence before the Court, there could have been no reasonable expectation that the service of Richardson Reports 1 and 2 could have led to the expenditure of time and costs that then followed from the prosecutor's exploration of a model concept FOPS. 1. As to particular 11, little attention was devoted by the prosecutor to this issue. I accept the submission of the defendant (at [85] above) that no aspect of the defendant's case, in this respect, represented disentitling conduct for the reasons there given. 2. Further, at a broader level, I reject the submission that the defendant conducted its defence in a way that unreasonably prolonged the proceedings. I have earlier dealt with the provision of Mr Richardson's reports. The adjournment which followed was a product of the prosecutor not having available expert evidence in support of a case on energy absorbing FOPS at that time. I do not consider the cross-examination by Mr D A Buchanan SC in the circumstances of the matter to have been unnecessary or prolix or the tender of a large amount of documentary material to be unwarranted. It is true that the Court did admit some material as provisionally relevant but, when considered in the light of the entirety of the issues raised on the trial, the material was relevant and often featured in the judgment of the Court. 3. To paraphrase the submission of the defendant, the allegation of a failure to take certain measures to ensure safety were technically complex, disparate and lengthy, such as the PLC programming issue, all of which were reflected in the case properly mounted by the defendant. The historical and operational considerations and events that led to the incident in evidence were all important matters. The defendant is right to point to the fact that it took the prosecutor three years to have an expert identify the flaw in a programmable logic that enabled the incident to occur. 4. Finally, and without deciding the issue, I have serious reservations as to the contentions of the prosecutor regarding the application of Latoudis in the context of these summary criminal proceedings for the following reasons: 1. The proposition significantly understates and appears to overlook the relationship between the duties imposed upon an employer under s 8 (in this case, s 8(2)) of the OHS Act and the statutory defence. This is vividly exposed by the following passages of the judgment of the plurality in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [18]-[19]. [18] The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. The defence allows that not all measures which may have guaranteed against the risk in question eventuating have to be taken. The measures which must be taken are those which are reasonably practicable. The term is not defined in the OH&S Act, but it may often involve a common sense assessment. An understanding of the scheme of Pts 3 and 6 precludes acceptance of the appellants' contention that it is necessary to imply the common law standard of care in ss 15(1) and 16(1). The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. [19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16. [Footnotes omitted.] 1. Whilst it is not entirely clear, it would appear the prosecutor sought, to an extent, to distinguish Latoudis, and sought to make that proposition good for all OHS cases (although such cases are now exhausted), rather than confining the contention to the particular facts and circumstances of this case. Both the absolute nature of the duties and experience of the prosecutions under the OHS Act, which are ordinarily only successful by means of the establishment of a statutory defence, must result in the contention advanced by the prosecutor, if accepted, effectively rendering nugatory the discretion to award costs to a successful defendant in OHS proceedings. 2. The immediately preceding consideration sits ill with the exclusion of proceedings under the OHS Act from the operation of s 257D of the Criminal Procedure Act. This has greater significant in the light of the fact that s 257D emerged in the aftermath of Latoudis. 3. The defendant is correct to submit that there is a real tension between the prosecutor's contentions, in this respect, and the ratio of Latoudis, namely, a successful defendant in summary proceedings ordinarily has a reasonable expectation of obtaining an order for the payment of his or her costs on the basis that it is just and reasonable that a prosecution reimburse him or her for liability for costs which have been incurred in defending the prosecution. That proposition gains greater force when it is understood that the reasoning of the High Court in Latoudis, in that respect, hinged upon the principle that it is just and reasonable to indemnify defendants for the costs to which they were exposed in defending an unsuccessful prosecution: Latoudis at 542 (per Mason CJ), 565 (per Toohey J) and 569 (per McHugh J). As Mason CJ observed (at 542): To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. 1. It is true that under the OHS Act the defendant bore an onus to make out a statutory defence and the prosecutor will often not know the nature of the defence until the close of the prosecutor's case, absent orders made in the summary proceedings to expose the defendant's case (although, in these matters, the prosecutor was aware of the defendant's case with respect to FOPS before the close of its case in this matter). 2. However, this apparent distinction has less force upon closer examination. First, the prosecutor has an option when confronted with a defence to contest the defence or accept its viability with respect to a particular of a charge. Secondly, in this case, a considerable proportion of the expenditure of time and costs in the prosecutor's case was spent not only on making out a defence but on the prosecutor's case as to liability. Thirdly, and subject to orders made under Pt 5 of Ch 4 of the Criminal Procedure Act, the prosecutor in ordinary summary criminal proceedings will not necessarily know the case for the defendant prior to the defendant opening its case. This would appear to be the case in relation to the third unsuccessful information in Latoudis. CONCLUSION 1. In all the circumstances, the defendant should have its costs of the proceedings on an ordinary basis. DIRECTION 1. The defendant shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment. ********** 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: 15 October 2019