Botany Bay City Council v Inspector Derek Pryor [2009] NSWIRComm 68 | Case summary

1 On 18 February 2009, the Court delivered judgment in respect of two applications for leave to appeal and appeal brought by Botany Bay City Council ("the appellant") under s 197 of the Industrial Relations Act 1996. The appeals were from two decisions of the Chief Industrial Magistrate of 5 December 2006 and 10 March 2008, respectively. 2 The first application concerned an appeal against conviction and sentence under s 9(1) of the Dangerous Goods Act 1975 ("the DG Act") (now repealed). The second application concerned an appeal against conviction and sentence under s 8(1) of the Occupational Health & Safety Act 2000 ("the OH&S Act"). 3 The Court held that the Chief Industrial Magistrate was in error in finding that the offence under the DG Act had been established. Leave to appeal was granted and the appeal upheld. The second appeal was dismissed: Botany Bay City Council v Inspector Derek Pryor [2009] NSWIRComm 12. 4 Pursuant to the Court's Orders, the appellant was directed to file and serve submissions in relation to the costs of both appeals within 28 days of the judgment with the respondent given a further 14 days to respond. The Full Bench advised that unless one or both parties made a request to be heard orally, the Full Bench would deal with the question of costs on the papers. Neither party made such a request. 5 In its written submissions, the appellant invited the Court, in the exercise of its discretion, to order that there be no order as to costs of any of the proceedings before the Local Court, or in respect of the appeals before this Court. The basis for this submission was that the Court should conclude that the matters set out in s 70(1) of the Crimes (Appeal and Review) Act 2001 ("the CAR Act"), had been established in respect of the DG Act prosecution and the prosecutor should be ordered to pay the appellant's costs in respect of that prosecution. That, so it was submitted, would however involve the preparation of accounts and separating the work done in respect of each prosecution. It was contended that this task would be difficult to perform with certainty and accuracy in cases such as this where some work was common to both prosecutions and where they had been heard together. 6 Section 70(1) of the CAR Act provides: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. 7 In respect of the DG Act prosecution, an essential element of the offence was that there was in excess of 1,000 litres of liquid chlorine at the appellant's premises. The appellant observed that the Court summarised the evidence as to the quantity of chlorine in the tanks at [6] of its judgment observing that "no evidence was led by the prosecutor as to the volume of chlorine held in the tanks at the time the workplace was inspected after the incident". Therefore, the appellant submitted that either or both s 70(1)(b) and (c) were activated in that the prosecution could be said to have been initiated without reasonable cause and/or that the prosecutor unreasonably failed to investigate a relevant matter. 8 The case for the respondent was that there was no basis for any order as to costs in favour of the appellant. It submitted that the appellant could not make out the tests prescribed in s 70 of the CAR Act for it to get an order for costs in respect of the DG Act prosecution or appeal. 9 The respondent submitted that this Court did not state that there was no evidence to support a view that the prosecution had a prima facie case. The Court held that the evidence was "not sufficient to sustain a finding beyond reasonable doubt" (at [6]) in respect of the essential element of the volume of liquid chlorine stored at the relevant time, being over 1,000 litres. It followed, so the respondent submitted, that the appellant's success was based only upon the weight of the evidence, not the lack of any evidence. We agree with this submission. There is, therefore, no proper basis for a finding of unreasonableness sought by the appellant under s 70(1)(b) and (c) of the CA Act. 10 The respondent submitted that upon the usual principles, it having been successful in the OH&S Act prosecution, it should get its costs. 11 The respondent further submitted that the appellant's proposal that there be no orders for costs, including before the Chief Industrial Magistrate, was not a fair balance of the costs that should result from the proceedings. It was contended the quantum of costs in each matter was not equal. The OH&S Act charge required two days of hearing below with only one day required for the DG Act charge. 12 Pursuant to s 3 of the CAR Act, under which these appeals were brought, "sentence" includes the costs order made by the Chief Industrial Magistrate on 5 December 2006. The respondent seeks no further orders in respect of the proceedings before the Chief Industrial Magistrate. 13 As a compromise, subject to the Court's discretion, the respondent proposed an apportionment of costs as follows: 1. In respect of the OH&S Act proceedings: (i) the respondent be entitled to its costs of preparing the prosecution before the Chief Industrial Magistrate, being 50 per cent of any preparation done jointly with preparing for the DG Act charge and all costs identifiable as being preparation of the OH&S Act charge alone; (ii) the respondent be entitled to its costs for the two days of hearing of the OH&S Act charge before the Chief Industrial Magistrate; (iii) the respondent be entitled to 50 per cent of its costs for the joint sentencing hearing before the Chief Industrial Magistrate of both charges; (iv) the respondent be entitled to 50 per cent of its costs for the preparation and hearing of the appeals in this Honourable Court. 2. In respect of the DG Act proceedings: there should be no order made for either the first instance, or appeal proceedings. 14 We are of the view that orders for costs should be made in accordance with the proposal of the respondent as set out in [13] above. As we understand it, the effect of these orders is that the orders made by the Chief Industrial Magistrate will stand. As to the appeals, each party will pay their own costs. We think that is an appropriate result. 15 The appellant succeeded in respect of their challenge to the DG Act charge, but failed in relation to the challenge to liability under the OH&S Act. The concessions made by the respondent, in our view, result in a fair balance between the parties when the outcome of the appeals are properly considered. The proposed orders reflect a fair balance of the success of the parties: WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 at [1] - [13]. Public interest considerations also favour costs orders as proposed. ORDERS 16 The Court makes the following orders: 1. Each party shall bear their own costs of the appeal. 2. The appellant shall pay the respondent's costs in respect of the submissions as to costs of both appeals.

Botany Bay City Council v Inspector Derek Pryor

At a glance

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Before

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Judgment (16 paragraphs)

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Cases Cited (2)