Inspector Yeung v Donald Edwin Wilson t/as Wilson's Tree Service

CATCHWORDS: Appeal - Occupational health and safety - Costs - Need to reconsider costs imposed at first instance in light of decision made on appeal as to penalty - Although no error made by trial judge, consequential revision of costs order required - Submissions filed by parties - Revised orders as to costs made.

LEGISLATION CITED: Occupational Health and Safety Act 2000 s 8

Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346 CASES CITED: Inspector Yeung v Donald Edwin Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158

APPELLANT: Mr P M Skinner of counsel Solicitors: Ms H A Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

RESPONDENT: Mr B G Docking of counsel Solicitors: Mr A Howell Jones Staff & Co, Lawyers

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

INSPECTOR THOMAS YEUNG v DONALD EDWIN WILSON TRADING AS WILSON'S TREE SERVICE

Application by WorkCover Authority to appeal against a judgment of Justice Boland given on 15 November 2004 in Matter No IRC 1043 of 2004

1 In Inspector Yeung v Donald Edwin Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158, the Full Bench upheld the appeal from the judgment of Boland J (Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346) in which his Honour had, in respect of the plea of guilty by the respondent to a breach of s 8(2) of the Occupational Health and Safety Act 2000, convicted him and ordered that he be fined the sum of $2,600 (see para [54] of his Honour's judgment). His Honour had also determined, at para [53], that the respondent was to pay 20 percent of the appellant's costs of the prosecution. 2 In reaching the conclusion that the fine imposed should be increased the Full Bench said: [114] We have therefore concluded the penalty applied was manifestly inadequate having particular regard to the objective seriousness of the offence.

[115] In re-sentencing the respondent, the court must have regard to the principles of double jeopardy as discussed by the Full Bench of the Court in Weathertex [ WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60] at [45] - [55]. This would involve the question whether we should exercise our residual discretion not to vary the sentence on appeal although we find it is not appropriate to take such a course in this case.

[116] We consider the penalty in this matter should be increased but accept and apply the same discount given by his Honour for subjective matters in the order of 35 percent given the maximum penalty was $55,500. We have also had regard to the issue of the double jeopardy as discussed earlier. The respondent should pay a fine of $9,750. 3 We then dealt with the issue of costs at paras [117] to [134]. As to that issue we held: [126] However, it is not in dispute the primary judge holds a very broad discretion to determine any order as to costs. Boland J exercised his discretion but did not follow the usual practice of awarding 100 percent of costs to the prosecution; rather he ordered a payment of 20 percent of the costs. The appellant does not challenge that within its discretion the court can depart from the "usual practice". The "usual approach", the "general position" or "ordinary" approach is that costs will follow the event.

[127] We accept the principle to award costs to a successful respondent is equally applicable to the award of costs to successful prosecutors. The Full Bench in Plastachem [ WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors (2001) 110 IR 351] at [61] held: The appellant [prosecutor] doubtless had a responsibility to conduct a full investigation of the matter and to institute such charges as might appropriately be brought.

[129] In Latoudis [ Latoudis v Casey (1990) 170 CLR 534] where the High Court considered the power of courts of summary jurisdiction to award costs in favour of a successful respondent the majority held, where a respondent had been successful, it would not generally be just and reasonable to deprive it of an order for costs (per Mason CJ at 542).

[130] Addressing the issue raised by the appellant that the respondent gains a double deduction for his plea of impecuniosity if the court takes impecuniosity into account in the setting of costs as well as a penalty for a criminal conviction in the form of a fine, Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 CR App R (S) 136 at [4] held: While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine. Justices should ordinarily begin by deciding on the appropriate fine to reflect the criminality of the defendant's offence, always bearing in mind his means and his ability to pay, and then consider what, if any, costs he should be ordered to pay to the prosecutor. If, when the costs sought by the prosecutor are added to the proposed fine, the total exceeds the sum which in the light of the defendant's means and all other relevant circumstances the defendant can reasonably be ordered to pay, it is preferable to achieve an acceptable total by reducing the sum of costs which the defendant is ordered to pay rather than by reducing the fine. A number of Supreme Court authorities have followed this reasoning (see Morgan v Biddle [unreported, Supreme Court of Western Australia, Wallace J, Supreme Court Library No 2845]; Thomas v Schwager [unreported, Supreme Court of Western Australia, Parker J, Supreme Court Library No 970719] and Koenig v Fraser [[2000] WASCA 262]).

[131] In the Supreme Court of Western Australia, Smith J in Flatow v Mullins [unreported, Supreme Court of Western Australia, Smith J, Supreme Court Library No 5207, 1 February 1984] stated at [3]: But it is equally clear on the authorities that a sentencer should always have regard to the totality of the financial burden suffered by the offender as the result of the offence: see Thomas Principles of Sentencing 2nd Edition at p340. Where the combined total of an appropriate fine and an order to make payment towards the costs of the prosecution constitutes a penalty which is totally out of proportion to the offence it is appropriate to scale down either the fine or the amount of the order to pay prosecution costs. We consider the approach of Lord Bingham preferable to this approach. 4 We then went on to hold: [134] In this matter, his Honour's reasoning reveals he was aware of the unusual order he made and also the discretion the court held as to cost orders when he determined there were such exceptional circumstances. In the application of the appropriate principles and in consideration of the new penalty imposed by the Full Bench we find any order as to costs we would award would mirror the order given by Boland J. We will however return to the practical aspects of this issue when we deal with the costs of the appeal. (emphasis added) 5 The practical aspects of the issue as to costs were dealt with subsequently in the following way:

[135] The question of the costs of the appeal are not without difficulty. The appellant has succeeded on one ground of appeal but failed on the other. On one view of the circumstances, the appellant should have one half of his costs; on another view there should be no order as to the costs of the appeal. There have been a number of appeal decisions in successful prosecution appeals where no costs order was made.

[136] The issue of costs of the appeal is further complicated by the fact that we have found that Boland J did not err in principle or approach when he approached the issue of costs at first instance in the way he did because his Honour in substance had regard to the approach of Lord Bingham in R v Northallerton Magistrates' Court which we have held was appropriate in this case. The effect on appeal of increasing the fine to be imposed is to substantially increase the amount to be paid by the respondent if the costs order of Boland J is left undisturbed. Further, the Full Bench is not aware of the precise effect in monetary terms of the costs order made by Boland J.

[137] The difficulty in identifying a fair means of resolving this issue is complicated by the fact that some matters requiring consideration were not raised with the parties because they were not aware of the approach the Full Bench would take on the sentencing part of the appeal. What we are about to say will necessarily be subject to the parties being given the opportunity of being heard on the following approach.

[138] We do not consider that in this case the public interest would be served if the total amount to be paid by the respondent was increased beyond the practical effect of the orders made at first instance. The error we have discerned at first instance will be sufficiently dealt with and corrected by the significant increase in the fine imposed. It seems that the practical effect of the appropriate approach in this matter within the constraints of the appeal process might be achieved by the imposition of the increased fine, the setting aside of the costs order at first instance coupled with a direction to the parties that they shall bring in short minutes of costs orders for both the appeal and the proceedings at first instance in such an amount which will result in the respondent being liable (for both the fine and costs) for either $9,750 or for the total sum of penalty and costs awarded at first instance, whichever is the greater amount. We are mindful that in addition to that amount, the respondent will be liable for his own costs of the appeal.

[139] The parties should therefore within 21 days file short submissions on the issue of costs having regard to what we have said in para [138] above or file short minutes of order of the costs of the appeal and of the proceedings at first instance in accordance with these reasons. 6 Unfortunately, because of difficulties with counsel's availability, the respective submissions as to the costs issue were not filed until some time after the time fixed. 7 The respondent sought orders that the costs orders made by Boland J be set aside and that the parties were to bear their own costs of the proceedings before Boland J and on appeal. 8 The appellant, however, sought the following orders: 1. The Respondent shall pay the costs of the Appellant in the proceedings before his Honour Justice Boland in matter number IRC 1043 of 2004.

2. The Respondent shall pay the costs of the Appellant in the appeal proceedings in matter number IRC 7088 of 2004.

3. The Respondent shall pay a total of $9,750 for both the penalty and the Appellant's costs in matter numbers IRC 1043 of 2004 and IRC 7088 of 2004. 9 The respondent also filed short written submissions in support of the orders he sought. In those submissions, the solicitor for the respondent referred in detail to relevant parts of the Full Bench's judgment on appeal and noted that the appellant had provided schedules of costs for both the proceedings at first instance and on appeal which indicated that the costs of the proceedings were $10,129 at first instance and $21,683 on appeal. In consequence, the respondent submitted that the "practical effect" of the orders made by Boland J at first instance would have involved the payment by the respondent of $4,625.80 (being the penalty of $2,600 plus costs (20 percent of the costs at first instance) of $2,025.80). It was thus submitted that the increased fine imposed on appeal would have already resulted in an increase in the total amount to be paid by the respondent and, as such, take into account the practical effect of the orders made at first instance and the decision of the Full Bench, particularly at para [138]. Accordingly, it was submitted that the appropriate orders with respect to costs would be those proposed by the respondent. We consider that approach is correct. 10 We therefore order that: 1. The costs orders made by Boland J on 15 November 2004 are set aside.

2. The parties are to bear their own costs of the proceedings before Boland J and on appeal. ________________

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.