Inspector Wolf v Rockdale Beef Pty Ltd

CATCHWORDS: Costs - Occupational health and safety - Appeal - Reference of questions of law - Declaratory relief - Issues as to how, and what, costs ordered - Consideration of approach to be adopted in awarding costs - Costs order made.

Criminal Appeal Act 1912 s 5AE LEGISLATION CITED: Industrial Relations Act 1996 s 181 s 196 Industrial Relations Commission Rules 1996 r 213 Occupational Health and Safety Act 2000 s 10

Abigroup Contractors v Inspector Maltby (No 2) [2002] NSWIRComm 317 Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 CASES CITED: Taylor v Environment Protection Authority (2000) 50 NSWLR 48 WorkCover Authority (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 357 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459 WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 2

HEARING DATES: 15/11/2006 EXTEMPORE JUDGMENT DATE: 11/15/2006

APPELLANT Mr J V Agius SC and Mr P M Skinner of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr G J Hatcher SC Solicitor: Mr P Terrett Terrett Lawyers

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Reference to Full Bench of the Industrial Court of New South Wales pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996

Application by WorkCover Authority of New South Wales (Inspector Ross Wolf) to extend time to appeal and to appeal from a judgment of Justice Schmidt given on 20 May 2005 in Matter No IRC 6128 of 2003

Application by WorkCover Authority of New South Wales (Inspector Ross Wolf) for declaratory relief under s 154 of the Industrial Relations Act 1996

JUDGMENT OF THE COURT [2006] NSWIRComm 365 (Extempore)

1 On Thursday 31 August 2006, the Full Bench delivered judgment in these matters when it decided (Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 at [182]): [182] The Court makes the following orders:

Matter No IRC 4426 of 2005 - Reference to Full Bench of the Industrial Court of New South Wales pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996 (1) The matter is remitted to Schmidt J with the following answers to the questions referred: Question 1: No jurisdiction under s 5AE of the Criminal Appeal Act to answer. Question 2: No jurisdiction under s 5AE of the Criminal Appeal Act to answer. Question 3: Inappropriate to answer. Question 4: No. Question 5: Unnecessary to answer. Question 6: Unnecessary to answer.

Matter No IRC 4540 of 2005 - Application by WorkCover Authority of New South Wales (Inspector Ross Wolf) to extend time to appeal and to appeal from a judgment of Justice Schmidt given on 20 May 2005 in Matter No IRC 6128 of 2003 (1) The appeal is upheld. (2) The decisions and orders of Schmidt J of 11 and 20 May 2005 are set aside. (3) The matter is remitted to Schmidt J to be dealt with in accordance with these reasons.

Matter No IRC 4541 of 2005 - Application by WorkCover Authority of New South Wales (Inspector Ross Wolf) for declaratory relief under s 154 of the Industrial Relations Act 1996 (1) The application for declaratory relief is dismissed. 2 As to the application for declaratory relief, which was dismissed, the Full Bench had earlier held (at [181]): [181] Without in any way commenting on the appropriateness of the prosecutor's application for declaratory relief in these proceedings or whether such relief would be available, we do not propose to entertain the application. It would serve no utility given our findings in relation to the Reference and the Appeal. Contentions of the parties

3 Pursuant to directions given when judgment was delivered, the parties have now filed their respective submissions as to the costs of the proceedings and have today been heard shortly in elaboration of their submissions. 4 The prosecutor seeks costs in all three proceedings noting that the proceedings were prepared for hearing and heard jointly, and although not all of the relief sought by the prosecutor was granted, he was, nevertheless, wholly successful in the result of the proceedings. It was submitted that the reason for the prosecutor not obtaining all the specific relief sought was purely because some of the supplementary remedies claimed would have been otiose given the Full Bench's judgment in the prosecutor's favour. 5 The prosecutor essentially contended that the need for the case to be brought before the Full Bench upon three bases was wholly as a result of the forensic decisions of the defendant. For example: [T]he applications for declarations, proceedings 4541/2005, were obliged to be made because of the defendant's vigourous (sic) and erroneous resistance to her Honour stating a case to this Honourable Court with all the necessary evidence and material to enable the Full Bench to properly assess the issues. See the judgment of the Full Bench 31 August 2006 at [63]-[64] and her Honour's, with respect erroneous, judgment below, [2005] NSWIRComm 184 at AB Vol 1 p 230, at [15]. 6 An award of costs to the prosecutor, who has been wholly successful, would be, it is contended, in accordance with the usual practice of this Court: both parties knew they were at risk of costs and took their forensic decisions accordingly. See, for example, Abigroup Contractors v Inspector Maltby (No 2) [2002] NSWIRComm 317. 7 The parties accept that the power of the Full Bench to deal with the question of costs in the proceedings is to be found in s 181(1) of the Industrial Relations Act 1996. 8 The respondent submits that the costs issues in respect of the three separate matters should be dealt with on the merits of each separate application (although Rockdale Beef Pty Ltd is the defendant in some proceedings and the respondent in others, for convenience, we refer to it as the respondent). 9 As to the appeal (Matter No IRC 2005/4540) the respondent submits that each party should bear its own costs of the appeal on the basis that the prosecutor's reliance on the judgment of the Full Bench in WorkCover Authority (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 357 does not support the costs order sought by the prosecutor in the appeal, certainly to the extent the appeal sought to rely on the provisions of the Criminal Appeal Act. Further, the appeal in the Rockdale Beef matter concerned a detailed consideration of the pleading requirements for occupational health and safety prosecutions under s 10 of the Occupational Health and Safety Act 2000, with the prosecutor accepting that any decision in the proceedings would be relevant to other prosecutions in which similar points had been raised. 10 The respondent also contended that, by reference to the judgment of the President in WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 2 at [17], "the importance of the matters" and the significance of the Court's decision to further prosecution proceedings brought by the WorkCover Authority are public interest considerations which should justify special costs considerations for the benefit of the respondent. The unusual nature of the proceedings was recognised by the Full Bench decision in the present proceedings (see para [62]). Further, the prosecution accepted that its appeal was out of time and required an extension of time within which to appeal and rule 213 of the Industrial Relations Commission Rules 1996 provides that "a party applying for an extension of time shall, unless the Commission otherwise orders, pay the costs of and occasioned by the application or an order made on or in consequence of the application". 11 As to the application for declaratory relief (Matter No IRC 2005/4541) the respondent submitted that the prosecutor should pay its costs of that application since the prosecutor did not succeed in the application and costs should follow the event and thus be awarded in the respondent's favour. 12 As to the costs of the referred questions of law (Matter No IRC 2005/4426), the respondent relied heavily on the judgment of the Court of Criminal Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [47] in which it was held that while there is power to award costs in respect of the reference of questions of law in a stated case under s 5AE of the Criminal Appeal Act 1912, costs should not be awarded in favour of a successful prosecutor unless it has been demonstrated that there were "special reasons for awarding costs in favour of the prosecuting authority". 13 Although the respondent accepts that this Court does not strictly follow the Court of Criminal Appeal's approach in Taylor v Environment Protection Authority, it submits that the Court's jurisprudence appears to recognise that there is a need to pay judicial regard to "special reasons for awarding costs ...". In this respect, the respondent refers to the judgment of the Full Bench of this Court in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459 where the Full Bench observed: [19] Accordingly, since the Full Bench decided the issues argued by the defendants, to the extent they needed to be determined, against the primary thrust of their submissions, costs should follow the event. To the extent that "special reasons" may be necessary for the award of costs ( Taylor v Environment Protection Authority (2000) 50 NSWLR 48) we refer to what is said subsequently in these reasons at paras [23] and [24]. Reference is there made to the significance of the earlier judgment in Ridge for the decision in the reference proceedings and also to the particular basis on which leave to re-argue Ridge was granted. The costs awarded should be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares. 14 The respondent submits, as to the issue of the costs of the referred questions of law, that from the prosecutor's perspective he has failed to demonstrate any special reasons why a costs order should be made in his favour. On the contrary, the prosecutor has failed to achieve the relief for which he contended in five of the six referred questions and the respondent emphasises its submission before Schmidt J (when considering the question of reference) that five of the questions which were ultimately rejected by the Full Bench were not proper questions of law to be referred. Reference is also made to the way in which the respondent approached some of the matters referred in the hearing before the Full Bench. 15 Unsurprisingly, the prosecutor takes issue with many of the factual contentions relied on by the respondent as to the course of the proceedings before the trial judge and as to the circumstances of the reference by her Honour. Because of the approach we have decided should be taken it is not appropriate or necessary to resolve all of the minutiae of these issues. Conclusions

16 In reaching our conclusions, we consider it appropriate to deal first with the respondent's submission which, although it concedes that this Court has not taken a strict approach to the requirement for special circumstances in dealing with costs issues in respect of references pursuant to s 196 of the Industrial Relations Act and s 5AE of the Criminal Appeal Act, seems to result in the contention that identification of special circumstances is necessary before a costs order would be made against an unsuccessful party. We do not consider, notwithstanding the judgment of the Court of Criminal Appeal in Taylor v Environment Protection Authority, that special circumstances must be identified before a costs order may be made in reference proceedings. Rather, we consider that s 181 of the Industrial Relations Act provides a wide discretion to award costs, which must of course be exercised judicially. Although prima facie costs should follow the event, nevertheless it is appropriate for the Full Bench, in deciding the issue of costs in reference proceedings, to have regard to all circumstances which might be reasonably relevant to the exercise of the discretion. 17 Turning then to the substance of the respective approaches of the parties on the issue of costs, we consider that the approach urged by the respondent, to look in effect at each separate proceeding the subject of the Full Bench's judgment of 31 August 2006, is a rather artificial one in the present case because the approach taken by the prosecutor in lodging applications for declaratory relief and separate appeal proceedings, in addition to the reference proceedings, was in our view an approach taken out of more abundant caution having regard to the course of the proceedings at first instance before Schmidt J. 18 We consider that the taking of this approach by the prosecutor was appropriate having regard to the consideration that the erroneous course taken by her Honour at first instance was the direct result of the approach taken by the respondent before her Honour. 19 We therefore prefer the approach of the prosecutor that the proceedings should be looked at as a whole particularly because, although there was a degree of overlap in three separate proceedings being taken, it must be nevertheless recognised that the proceedings were conveniently heard together as, in substance, one hearing. On the other hand, it is appropriate, in approaching the proceedings as a whole, to pay regard to the consideration that although the prosecutor was substantially successful in the proceedings overall, some of the questions formulated on its motion were not appropriate or necessary to answer and it became unnecessary for orders to be made as to the application for declaratory relief. 20 In those circumstances, the appropriate course is to assess the issue of costs in a global manner and we consider that the appropriate result in those circumstances is that the respondent should pay 75 per cent of the prosecution's costs of the proceedings, including that part of the proceedings which dealt with the question of costs. The Court orders accordingly. In accordance with normal practice the costs may be assessed in the absence of agreement between the parties as to their quantum. ____________

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.