18 The defendants referred to R v JW [2010] NSWCCA 49 at [28]-[30] where the Court of Criminal Appeal held that by virtue of the Kirk judgment there was a need for an appellant prosecutor to properly plead and particularise an appeal in order to inform the Court and the defendant/respondent of the Crown case so brought. It was said that this requirement arose in the criminal appellate jurisdiction of the Court of Criminal Appeal due to 'parallel reasoning': at [30]. So much may, with respect, be accepted. R v JW did not involve a provision of the nature of s 26 and, as it was explained in Morrison v Chevalley, by pleading and particularising the offence of the defendant corporation, the prosecutor had met the requirement for pleading the acts or omissions regarding the directors.
19 It may be accepted that there are matters before members of the Court that were adjourned pending the decision in Morrison v Chevalley. That is not an unusual state of affairs where some uncertainty has been created by a judgment of a higher court.
20 It is true that the prosecutor joined in the Reference application and contributed to the framing of the questions of law, but as we understand it the defendants had determined to proceed with the Reference in any event.
21 The defendants referred to WorkCover Authority of NSW v Denson [2007] NSWIRComm 69; (2007) 162 IR 199 at [45] where the Full Bench stated:
[45] The issue of costs presents some difficulties. The conclusions reached by the Full Bench are consistent with the approach of all parties, both at first instance and during the reference. The need for the reference arose because of the different approach taken at first instance. Public interest considerations therefore arose in the questions referred being authoritatively dealt with. For the defendants to be obliged to pay additional costs in respect of the reference (even their own costs) has a real potential to impose an additional penalty on them. This therefore seems to be an appropriate case for the prosecuting authority to consider paying the defendants' costs of the reference.
22 The circumstances in Denson were quite different to the present proceedings. This is apparent from what was said at [14]:
[14] This reference comes before the Full Bench in somewhat unusual circumstances as both the prosecutor and defendant made submissions before her Honour opposing her Honour's preliminary view as to the interpretation of the definition of "previous offender" underlying the reference. Nevertheless, Staunton J referred the two questions to the Full Bench. The defendants opposed the reference while the prosecutor had no objection to the questions being referred to the Full Bench for determination. The questions raise a serious issue given that a finding that the defendants are previous offenders paves the way for the possibility of a custodial sentence being ordered on conviction of a defendant who is a natural person. We shall consider each question in turn as they raise quite distinct issues, albeit that they both concern the definition of "previous offender".
23 The defendant also referred to Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368; (2006) 158 IR 227 at [43]:
[43] We also consider that some of the observations made by the Full Bench in Lucon at 464 (at [24]) are apposite here. Here, as in Lucon , the reference was appropriate but it is going too far to say that there were public interest considerations in the Defendant raising the points it did by its notice of motion. The points raised were essentially to assist, or to vindicate, the Defendant's forensic situation in the litigation and, as we have already observed, ultimately the Defendant had a choice as to whether it would maintain the points that it raised. We reject the criticism which the Defendant appears to be making as to the Prosecutor's conduct in seeking the reference of the issues raised by the notice of motion as questions of law to the Full Bench pursuant to s 5AE. That step was the direct and likely consequence of the Defendant's notice of motion and it was clearly open to WorkCover to act on the basis that the Defendant in filing its notice of motion, and therefore raising similar points to that dealt with in Rockdale Beef , was making a choice in raising the issue and was therefore prepared to accept the consequences of the choice it made.
24 The defendants submitted they were not agitating for their costs to be paid by the prosecutor as was the case in Inspector Green. Rather, it was submitted, the fair and judicial approach should be that each party bear their own costs. This was especially so when the costs of the Reference would be likely to exceed any penalty which may be imposed on either defendant, being individuals.
25 The defendants' proposition is, then, that it was not going 'too far' to say that there were public interest considerations in the defendant raising the points they did in their notice of motion leading to the Reference and, therefore, each party should bear its own costs. In addressing that proposition we take the view there is merit in the prosecutor's position that the substantive points raised in the motion were 'essentially to assist, or to vindicate, the defendants' forensic situation in the litigation' and 'ultimately the [defendants] had a choice as to whether [they] would maintain the points that [they] raised'. Nevertheless, a public interest consideration does arise out of the fact that the High Court in Kirk did not address (because it was unnecessary to do so) the question whether the prosecutor was required to plead and/or prove any act or omission by a defendant in respect of a charge that relied on s 26, beyond the acts or omissions pleaded and proved against the corporation.
26 Whilst the defendants' reliance on Kirk by parity of reasoning was, in our opinion, motivated by a desire to use Kirk to their own forensic advantage, the question of what a prosecutor had to prove in proceedings involving s 26 of the OHS Act would most likely have arisen at some stage. This is notwithstanding our view, as it is expressed in Morrison v Chevalley, that provided the acts or omissions of the corporation have been pleaded, the director or manager is thereby informed of the measures that should have been taken by the corporation, and, it follows, by the director or manager, to avoid the risk.
27 The emphasis by the High Court in Kirk on the need for the prosecutor to identify with appropriate precision the acts or omissions that created the risk and the measures that should have been taken to avoid the risk, whilst they were concerned with the matters to be proved against a corporation, arguably meant that the Court would be called upon to consider the implications of Kirk for charges against directors and managers. The defendants in this case happened to be the first to raise the question.
28 As it was indicated early in our consideration of this matter, costs are in the discretion of the Court, which has power to determine by whom and to what extent costs are to be paid. However, a successful litigant is, prima facie, entitled to an award of costs, unless there are special circumstances warranting a departure from the usual rule that costs follow the event. In these proceedings, in endeavouring to strike a proper balance between applying the usual rule and the degree of public interest attached to an issue that might be said to legitimately arise from Kirk for determination in relation to a prosecutor's obligations in connection with the prosecution of directors and managers, we have decided that the defendants should pay 50 per cent of the prosecutor's costs, except that neither Mr Chevalley nor Mr Grugeon shall be liable for any costs in connection with the constitutional issue.