Newcastle Wallsend Coal Company Pty Limited and others v McMartin

CORAM: Walton J Vice-President at [1]; Marks J at [102]; Boland J at [1]

Appeal - Occupational Health and Safety - Costs - Complications in dealing with costs caused by minority judgment in the appeal having dealt with costs prior to hearing the parties - Further complications arising from minority judgment having addressed a number of contentious matters in the context of dealing with costs without the parties having been heard in relation to such matters - Whether need to re-open proceedings - Costs issues relate to both of the corporate appellants and to three personal appellants - Respondent successful on appeal in relation to both liability and sentence in respect of corporate appellants and one of the personal defendants - One personal defendant wholly successful on appeal in relation to liability and sentence- One personal defendant partially successful on appeal in relation to liability and sentence - Whether conditional offer by corporate appellants to plead guilty and refusal by respondent to accept plea affects respondent's entitlement to costs - Whether any disentitling conduct on the part of the respondent - No cost orders sought against personal appellant in respect of whom appeal dismissed - Whether personal defendant who was wholly successful on appeal should have indemnity costs - Whether in the alternative the personal defendant who was wholly successful on appeal should have costs of the appeal and costs at first instance on a party/party basis or whether because of personal appellant's joint participation in the appeal and at first instance the costs awarded against the corporate appellants should be discounted for the fact the personal appellant was successful on appeal - Whether costs should be ordered against personal appellant who was partially successful on appeal and separately represented on appeal - Criticism of respondent in minority judgment regarding conduct of the prosecution considered to be unfair and immoderate - No proper basis for criticism of respondent's solicitor in the minority judgment - Respondent awarded costs of appeal in relation to corporate appellants - Corporate appellants' costs discounted for the fact that one of the personal defendant's who participated jointly with the corporate appellants at first instance and on appeal was wholly successful - Corporate appellants' costs at first instance further discounted for partially successful personal defendant who also participated jointly with the corporate appellants at first instance - Costs awarded to personal defendant who was partially successful on appeal and represented separately on appeal discounted because it was the issues relating to his liability as well as the issues relating to the liability of the corporate appellants rather than the issues on which he succeeded that were the most expensive in terms of costs - Correction order made - Costs orders made CATCHWORDS: Costs - Appeal - Occupational health and Safety - Complications in dealing with costs caused by minority judgment in the appeal having dealt with costs prior to hearing the parties - Further complications arising from minority judgment having addressed a number of contentious matters in the context of dealing with costs without the parties having been heard in relation to such matters - Whether need to re-open proceedings - Costs issues relate to both of the corporate appellants and to three personal appellants - Respondent successful on appeal in relation to both liability and sentence in respect of corporate appellants and one of the personal defendants - One personal defendant wholly successful on appeal in relation to liability and sentence- One personal defendant partially successful on appeal in relation to liability and sentence - Whether conditional offer by corporate appellants to plead guilty and refusal by respondent to accept plea affects respondent's entitlement to costs - Whether any disentitling conduct on the part of the respondent - No cost orders sought against personal appellant in respect of whom appeal dismissed - Whether personal defendant who was wholly successful on appeal should have indemnity costs - Whether in the alternative the personal defendant who was wholly successful on appeal should have costs of the appeal and costs at first instance on a party/party basis or whether because of personal appellant's joint participation in the appeal and at first instance the costs awarded against the corporate appellants should be discounted for the fact the personal appellant was successful on appeal - Whether costs should be ordered against personal appellant who was partially successful on appeal and separately represented on appeal - Criticism of respondent in minority judgment regarding conduct of the prosecution considered to be unfair and immoderate - No proper basis for criticism of respondent's solicitor in the minority judgment - Respondent awarded costs of appeal in relation to corporate appellants - Corporate appellants' costs discounted for the fact that one of the personal defendant's who participated jointly with the corporate appellants at first instance and on appeal was wholly successful - Corporate appellants' costs at first instance further discounted for partially successful personal defendant who also participated jointly with the corporate appellants at first instance - Costs awarded to personal defendant who was partially successful on appeal and represented separately on appeal discounted because it was the issues relating to his liability as well as the issues relating to the liability of the corporate appellants rather than the issues on which he succeeded that were the most expensive in terms of costs - Correction order made - Costs orders made

Crimes (Sentencing Procedure) Act 1999 s 10 LEGISLATION CITED: Coal Mines Regulation Act 1982 s 60 Occupational Health & Safety Act 1983 s 15, s 16, s 50(1), s 51A

Evans v Marmont (1997) 42 NSWLR 70 Garcia v National Australia Bank Limited (1998) 194 CLR 395 Inspector Jones v Supercut Concrete Service Pty Ltd [2004] NSWIRComm 83 Inspector Wilkie v Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency [2004] NSWIRComm 166 Maxwell v The Queen (1996) 184 CLR 501 Morrison v Powercoal (No 3) (2005) 147 IR 117 CASES CITED: Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Powercoal Pty Ltd and Another v Industrial Relations Commission of NSW and Another (2005) 64 NSWLR 406 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd and others (2001) 110 IR 351 WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329

HEARING DATES: Written Submissions: 29 January 2007, 28 February 2007, 1 March 2007, 12 March 2007

APPELLANTS: Mr R Porteous, Newcastle Wallsend Coal Company Pty Limited, Oakbridge Pty Limited and Mr M Robinson

Mr B D Hodgkinson SC with Mrs W G Thompson of counsel Solicitor: Ms F Inverarity Truman Hoyle Lawyers

LEGAL REPRESENTATIVES: Mr M Shume of counsel Solicitor: Ms R Parmegiani Sparke Helmore Lawyers

Mr S Crawshaw SC with Mr B Docking and Mr A Slevin of counsel Solicitor: Mr M Carrick Slater & Gordon Lawyers

CORAM: WALTON J, Vice-President MARKS J BOLAND J 28 June 2007 Matter No IRC 1591 of 2005

Application by Richard Myles Porteous for appeal from judgments of Justice Staunton given on 9 August 2004 and 11 March 2005 and from interlocutory judgments of Justice Wright given on 14 June 2002 and 25 August 2004 in matter numbers IRC 3210, 3211, 3212, 3213, 3214, 3215, 3216, 3217, 3218, 3219, 3220 and 3221 of 2000.

NEWCASTLE WALLSEND COAL CO PTY LTD v STEPHEN FINLAY McMARTIN

Application by Newcastle Wallsend Coal Co Pty Ltd for appeal from judgments of Justice Staunton given on 9 August 2004 and 11 March 2005 and from interlocutory judgments of Justice Wright given on 14 June 2002 and 25 August 2004 in matter numbers IRC 3198, 3199, 3200, 3201, 3202 and 3203 of 2000.

JONATHAN ERIK HUMPHRIES ROMCKE v STEPHEN FINLAY McMARTIN

Application by Jonathan Erik Humphries Romcke for appeal from judgments of Justice Staunton given on 9 August 2004 and 11 March 2005 and from interlocutory judgments of Justice Wright given on 14 June 2002 and 25 August 2004 in matter numbers IRC 3234, 3235, 3236 and 3237 of 2002.

Application by Oakbridge Pty Limited for appeal from judgments of Justice Staunton given on 9 August 2004 and 11 March 2005 and from interlocutory judgments of Justice Wright given on 14 June 2002 and 25 August 2004 in matter numbers IRC 3204, 3205, 3206, 3207, 3208 and 3209 of 2000.

Application by Mark Robinson for appeal from judgments of Justice Staunton given on 9 August 2004 and 11 March 2005 and from interlocutory judgments of Justice Wright given on 14 June 2002 and 25 August 2004 in matter numbers IRC 3230, 3231, 3232 and 3233 of 2000. JUDGMENT OF THE COURT [2007] NSWIRComm 125

JUDGMENT OF WALTON J, VICE-PRESIDENT AND BOLAND J 1 This judgment deals with the question of costs arising from the decision of the Full Bench in Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin (2006) 159 IR 121 ("the Gretley Appeal"). 2 The judgment is given in unusual circumstances. In the Gretley Appeal, the majority reserved on the question of costs, noting that none of the parties had been heard on that issue ([631]). The Full Bench indicated that it would determine the question of costs on the papers unless a party made an application to be otherwise heard. In the minority judgment, Marks J not only dealt with the issues of liability and sentencing, but his Honour also addressed the issue of costs, and in the course of doing so, raised a number of other contentious matters under the rubric 'Conduct of the prosecutions' (his Honour, in fact, treated all matters dealt with under that heading as relevant to the question of costs, although in this judgment we have found it unnecessary to deal with all such matters in reaching our own conclusion on costs). 3 Not only was the issue of costs not ventilated during the hearing of the appeal but also neither were the contentious matters that his Honour dealt with in his minority judgment under the heading "Conduct of the prosecutions". 4 This has given rise to a substantial complication. The respondent (prosecutor at first instance), with apparent justification, complained in his written submissions on costs that he had not been heard in relation to the cost issues and the other matters addressed in the minority judgment and sought to respond to the findings (and criticisms) made against him in that respect. To add to the complication, in their reply submissions on costs, which relied heavily on the minority judgment, a number of the appellants claimed that some of the responses by the respondent (all of which were, in fact, directly responsive to the findings or comments made by Marks J) could not be considered by the Full Bench without the matter being re-opened. Those appellants did not, however, seek an oral hearing on the question of costs although as we have noted, they identified that a hearing may be required on the re-opening question if that question arose for determination. 5 It is unfortunate that we have to take the course that we do. We acknowledge that it is not part of the function of a judge sitting on appeal to provide a critique of the reasons given by members of the Court whose views differ from that of the judge (see, for example, Evans v Marmont (1997) 42 NSWLR 70 at 80 per Gleeson CJ and McLelland CJ in Eq). It is, however, necessary to make certain observations arising from the reasoning of Marks J in the minority judgment because some of the appellants relied on that reasoning in support of their submissions on costs. 6 As we have said, it is a matter of some concern to us that we have been placed in this difficult position in endeavouring to ensure justice is done between the parties without the need to put the parties to the inconvenience and additional expense associated with any re-opening of the proceedings or issues related thereto. However, we consider the matter may be dealt with without the need to re-open proceedings because our judgment is concerned with the issue of costs as it arises from the majority judgment and from the competing contentions as to costs between the parties in the written submissions that have been filed (in particular, in the costs submissions filed by the corporate appellants on 28 February 2007). 7 Thus, even though the minority judgment has no legal effect, both because of its minority status and because it was delivered before the parties were heard on the question of costs, we will have regard to the reasoning therein (under the heading "Conduct of the prosecutions") to the extent the parties have, in joining issue on costs, relied upon aspects of the minority judgment (to the extent that, of course, those matters are directly relevant to the determination of costs by us in the light of our majority judgment on liability and sentence). We shall deal with such matters under the heading "The resolution of applications as to costs". 8 That approach necessarily leaves out of consideration some of the matters referred to in the aforementioned section of the minority judgment, because such matters should not properly be considered as part of our judgment on costs. We consider, however, it is appropriate in the public interest to make some brief observations about those other matters because they involve public criticisms of the respondent and an officer of the Court in these proceedings, that we regard as unfair. We will deal with these matters in that section of our judgment headed "Other contentious matters". We emphasise that aspect of our judgment has played no part in our consideration of what should be the appropriate outcome in relation to costs in these proceedings. THE RESOLUTION OF APPLICATIONS AS TO COSTS

BACKGROUND 9 The background to the decision in the Gretley Appeal is summarised in the first six paragraphs of the decision: 1 On 14 November 1996, Ted Batterham, John Hunter, Mark Kaiser and Damon Murray were conducting underground coalmining operations using a continuous miner at the Gretley Colliery, Wallsend in this State of New South Wales. At about 5.30 am a hole opened up at the coalface at which they were working and a great force of water came flooding through the hole from abandoned workings known as the Young Wallsend Colliery old workings. The force of water engulfed the four workers and caused their death by drowning. A further four mineworkers - Jay Franklin, John McCallum, Steve Brown and Wayne Nicholls - were in the crib room at the time of the inrush and survived.

2 In addition to a coronial inquest, a judicial inquiry was conducted into the incident. On 28 February 2000, Inspector Stephen Finlay McMartin of the WorkCover Authority of New South Wales laid 52 charges against two corporate defendants, namely, the Newcastle Wallsend Coal Company Pty Ltd (NWCC) and Oakbridge Pty Ltd (OPL) as well as eight personal defendants: Richard Myles Porteous; Phillip John Pritchard; Michael Francis Alston; Mark Robinson; Jonathan Erik Humphries Romcke; Michael John Coffey; Christopher Wayne Nicholls; and, Terence Shacklady. The summonses alleged offences arising under ss 15(1), 16(1) and 50(1) of the Occupational Health and Safety Act 1983 (the "OHS Act" or "1983 Act"). Mr McMartin brought the proceedings, with the written consent of the Minister for Industrial Relations, purportedly pursuant to s 48(1)(c) of the OHS Act. On 5 July 2000, the prosecutor filed further documents in the Registry seeking to lay another 52 charges against the defendants. The solicitor for the prosecutor informed the defendants by letter that the refiling had been necessary "as there may have been an error by the IRC Registry in the processing of documents that were filed on 28 February 2000".

3 In the course of proceedings, the defendants filed two notices of motion seeking various orders, including orders that the summonses be struck out, dismissed or permanently stayed. In WorkCover v Newcastle Wallsend (2002) 116 IR 283, Wright J, President, in an interlocutory judgment, rejected the defendants' submissions that: (a) proceedings had not been validly commenced because the applications for summonses were made to the Industrial Registrar and not to a judge of the Commission in Court Session; (b) the applications for summonses failed to comply with s 49(4) of the Act; (c) the summonses issued by the Industrial Registrar were of no legal effect; and, (d) the applications were invalid on the basis that the accompanying prosecutor's affidavits were not properly or validly sworn. Wright J also directed the prosecution to file and serve a document setting out the form of orders sought under s 4(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967.

4 In a judgment given on 25 August 2004 in relation to the costs of the 2002 interlocutory proceedings heard by his Honour, Wright J made the following ruling and orders: (1) (a) The corporate defendants, Newcastle Wallsend Coal Company Pty Limited and Oakbridge Pty Limited shall jointly and severally pay 80 per cent of the costs of the prosecutor of the interlocutory proceedings which costs may be assessed in default of agreement. (b) There shall be no order for costs otherwise. (2) The rulings as to the costs of the interlocutory proceedings, shall to the extent considered appropriate by the trial judge, be incorporated into the final costs orders in the proceedings and the prosecutor shall within eight weeks of today provide to the defendant and the Court a detailed assessment of his costs of the interlocutory proceedings. 5 In Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2004] NSWIRComm 202 (the liability judgment), Staunton J found three of the personal defendants (Messrs Porteous, Romcke and Robinson) and both corporate defendants (collectively, "the appellants") guilty of a number of charges laid against them. The charges against the remaining five personal defendants were dismissed. In Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 (the sentencing judgment), Staunton J convicted the appellants and imposed penalties.

6 Each of those convicted by Staunton J has appealed the interlocutory judgments of Wright J and her Honour's judgments of 9 August 2004 ([2004] NSWIRComm 202), and 11 March 2005 ([2005] NSWIRComm 31). The appeals are pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912.

(1) The appeals in all matters were dismissed in relation to the two corporate appellants;

(2) The appeal in all matters was dismissed in relation to Mr Porteous;

(3) The appeal was upheld in relation to two matters the OPL-related offences) involving Mr Romcke and in relation to two other matters (the NWCC-related offences) the appeal was dismissed as to liability and upheld in relation to sentence. The decision and orders of Staunton J in relation to sentence were set aside pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, the majority did not proceed to conviction of the appellant and dismissed the charges against him;

(4) The appeal in all matters was upheld in relation to Mr Robinson and the judgment and orders of Staunton J were set aside; and

(5) The appeals against the judgments and orders of Wright J, President given on 14 June 2002 and 25 August 2004 were dismissed. 11 In relation to the question of costs, the majority stated at [631]-[632]: 631 We have reserved the question of costs and any matter connected with that question because none of the parties have yet been heard on these issues. In relation to the question of costs we direct the respondent to file and serve written submissions in that respect within 14 days of the date of this judgment. The appellants have a further 14 days to file and serve a written reply. Costs will be dealt with on the papers, unless a party makes an application in their written submissions for the matter to be listed to hear the parties on costs. 632 In attending to the question of costs the parties should bear in mind the following preliminary views of the majority: (1) In respect of the corporate appellants we would wish to hear why the usual rule should not apply, that is, costs follow the event. There is nothing at this stage which would appear to warrant any deviation from the standard practice, described in O'Sullivan v Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at [198]-[200] and in the Full Bench decision of WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 at [13], although issues may arise as to the success or otherwise of the appeal brought by the corporate appellants. In particular, no issue has been raised as to the conduct of the respondent's case here or at the trial which would raise the need for any order of a different character. Nor do we consider any such issues readily present themselves from the course of these proceedings.

(2) In relation to Mr Romcke we tend to the view that Mr Romcke should have his costs of the appeal and each party should bear its own costs of the proceedings at first instance.

(3) In relation to Mr Robinson, we tend to the view he should have his costs of the appeal against the judgment and orders of Staunton J and at first instance. 12 In a minority judgment in the Gretley Appeal, Marks J came to different conclusions to the majority regarding liability and penalty that are not necessary to be repeated for the purpose of this costs judgment. On costs, his Honour concluded at [758]: I would not have awarded the prosecutor any costs beyond 7 August 2004 [sic - 2003], the date the corporate defendants agreed to plead guilty on a conditional basis. I would have awarded the defendants their costs on and after that date because, for reasons that I have now stated on a number of occasions, I regard the conduct of the prosecutor as being, in all the circumstances, unacceptable and as having compromised the processes of this Court. COSTS AT FIRST INSTANCE

13 On the question of costs at first instance, Staunton J determined as follows: (i) The corporate defendants, NWCC and OPL, shall jointly and severally pay ninety per cent of the prosecutor's costs of these proceedings. Reference to 'these proceedings' includes those interlocutory matters identified in this judgment as to costs.

(ii) The parties are to confer with a view to reaching agreement on the quantum of costs to reflect the order I have made. Failing agreement within six weeks the matter will be referred to the Registrar of the Court for assessment as to costs. (iii) If agreement is reached, the parties are to prepare draft orders to reflect the decisions I have made in order to record convictions and specific costs with respect to the unsuccessful defendants and to formally dismiss proceedings against the successful defendants.

(iv) The parties have liberty to re-list the proceedings at short notice for that purpose in order to finally dispose of the proceedings.

(v) The parties are to file written submissions within four weeks from the date of this judgment as to what, if any, orders I should make in relation to the allocation of a moiety concurrent with my ultimate orders as to conviction, penalty and costs.

(vi) The parties are to draft orders consistent with his Honour Wright J, President's rulings in relation to the costs of earlier interlocutory proceedings dealt with in 2001 (sic) concerning these prosecutions. They are to be filed concurrently with the draft orders already proposed. 14 It is also necessary to take into account the treatment at first instance of costs relating to the personal defendants. In relation to the personal defendants who were found not to be criminally liable, the trial judge took into account this result by reducing the costs order made against the corporate defendants who were found criminally liable: 380 Notwithstanding that the DG2 defendants were successful, it is not reasonable, in my view, to separate out matters going to their specific defence as in some way being directly attributable to them and readily identifiable as such in an evidentiary sense. The liability of the personal defendants rested, in the first instance, on establishing the liability of the corporate defendants. That issue occupied by far the greatest proportion of the trial proceedings. Next, in order to render the personal defendants liable, I had, as a threshold point, to be satisfied beyond reasonable doubt they were 'persons concerned in the management of the corporation(s)'. In analysing the statutory construction of that phrase and then assessing it against the factual evidence I had, I could not be satisfied to the requisite standard in relation to the DG2 defendants. In undertaking the assessment of the factual evidence in relation to the DG2 defendants I did so as an identifiable group, the Under Managers. It was on that basis I came to the conclusion I did.

381 Against that background I perceive no basis for an independent costs order in favour of the DG2 defendants. The other reason against such an approach is the extent to which there was evidence presented that went directly and/or individually to the DG2 defendants. It would not be overstating the situation to assess that aspect of the evidence as relatively minimal. That would help explain in part why I could not be satisfied beyond reasonable doubt as to their role as 'persons concerned in management'. Certainly there was more direct evidence presented in relation to Mr Robinson, Mr Porteous and Mr Romcke (part of the unsuccessful defendants).

382 In all the circumstances I believe the just and fair approach is to discount the costs order I make in favour of the prosecutor to take account of the DG2 defendants in relation to the outcome of the trial proceedings. 15 In relation to the personal defendants who were found criminally liable, the trial judge gave the following reasons for not making them liable for costs: 386 I believe the just and fair approach to the making of any costs order in these proceedings is to make such an order jointly and severally against the corporate defendants. I come to that view predominantly because the charges against all of the personal defendants arose out of their employment with one or other of the corporate defendants and it is the corporate defendants' liability that grounds the liability of the personal defendants. As well, I am mindful that the financial imposition of a costs order against the personal defendants would be significant. The costs arrangement relevant to the DG2 defendants and Mr Robinson states that the 'mining company defendants...have not promised...they will pay...the legal costs of the prosecution that you are ordered by the Court in that situation to pay'. I do not know what the situation is in relation to Mr Porteous and Mr Romcke but I know enough to know their individual financial circumstances are such that a costs order in a matter of this magnitude on top of the penalties I have already imposed would be unacceptably punitive. CORPORATE APPELLANTS

16 As may be seen in the foregoing extracts from the decision at first instance, Staunton J decided that the corporate appellants should jointly and severally pay 90 per cent of the respondent's costs of the proceedings, such proceedings including the interlocutory matters identified in her Honour's judgment as to costs. The 10 per cent discount is attributable to the respondent's lack of success at first instance in relation to five of the personal defendants. Competing contentions on costs 17 The respondent submitted that in relation to costs at first instance the order of the trial judge should be varied so that the corporate appellants shall jointly and severally pay 88 per cent of the costs of the proceedings at first instance, including the proceedings in relation to the interlocutory matters identified in the judgment at first instance in relation to costs. The rationale for the further reduction of two per cent was explained by the respondent as follows: The costs framework of the trial judge was to reduce the costs of the proceedings at first instance payable by the corporate appellants by 10%, or 2% for each successful defendant. This suggests that the success of Mr Robinson on appeal should result in no more than an extra 2% reduction in the figure of ninety per cent of the prosecutor's costs of the proceedings at first instance payable by the corporate appellants.

18 As to the question of costs on the appeal, the respondent supported the tentative view of the majority in relation to the unsuccessful appeal by the corporate appellants that, in the appeal proceedings, the usual rule should apply and costs should follow the event. 19 The corporate appellants, on the other hand, submitted the appropriate order is that the costs orders made by Staunton J be quashed and the corporate appellants pay the respondent's costs incurred before 7 August 2003 on a party/party basis. Further, that the corporate appellants and the respondent bear their own costs incurred after 7 August 2003. In the alternative, the corporate appellants submitted that the costs orders made by Staunton J be quashed and the costs order should be as proposed in the preliminary view of the majority of the Full Bench, being that the corporate appellants pay the respondent's costs on appeal and at first instance in matters 1592 and 1594 of 2005 on a party/party basis. 20 As to the parties' competing primary positions in respect of costs orders relating to the corporate appellants, they may be seen more clearly from the following table:

Table 1: Competing costs contentions relating to corporate appellants

Corporate Appellants Respondent · The costs orders in relation to costs of Staunton J be quashed. · The corporate appellants shall jointly and severally pay the costs of the respondent in the appeal proceedings. · The corporate appellants pay the respondent's costs incurred prior to 7 August 2003 on a party/party basis. · The order of the trial judge shall be varied so that the corporate appellants shall jointly and severally pay 88 per cent of the costs of the proceedings at first instance, including the proceedings in relation to the interlocutory matters identified in the judgment at first instance in relation to costs. · The corporate appellants and the respondent bear their own costs incurred on or after 7 August 2003.

21 As we earlier noted, the corporate appellants' alternative submission was that the costs orders made by Staunton J be quashed and the costs order should be as proposed in the preliminary view of the majority of the Full Bench, being that the corporate appellants pay the respondent's costs on appeal and at first instance on a party/party basis. It may be seen, then, that the principal difference between the parties is the contention by the corporate appellants that they pay the respondent's costs incurred prior to 7 August 2003 on a party/party basis but that on or after that date, the parties pay their own costs. Reliance by corporate appellants on minority judgment 22 The significance of 7 August 2003 is that it was the date on which the corporate appellants offered to plead guilty on certain conditions. It was submitted that, relying on the minority judgment of Marks J, the conduct of the respondent was such that it warranted an order that no costs should be awarded beyond 7 August 2003. 23 In this latter respect, the corporate appellants referred to what Marks J stated at [734]: 734 It is then necessary to deal with the question of costs. Before doing so, however, I wish to make some observations about the manner in which the proceedings were constituted and the manner in which they were conducted by the prosecutor. I should state at the outset that I raise these matters for two reasons. Firstly, in my opinion, they are relevant to the question of costs. Secondly, for reasons that I shall shortly state, I have grave concerns about the manner in which the prosecutor has formulated the charges and has conducted himself in and about the prosecution of the proceedings. In my opinion the proceedings constitute an undue waste of the resources of this Court, an undue impost on the finances of the State of New South Wales, an undue expense burden on all of the defendants and, arguably, reflect adversely on the administration of significant beneficial legislation (our emphasis) . 24 Marks J came to the aforementioned view, it seems, on the following bases: · The holing-in of the old mine occurred on 14 November 1996 but the charges commenced in March 1994. If proceedings had been instituted which were designed to encapsulate the "criminality" of the corporate appellants it would only have been necessary for each of the corporate appellants to have been charged under ss 15 and 16 of the Act with breaches constituting the holing in of the adjoining abandoned workings. All that would have been necessary for the prosecution to establish was that mining operations were being conducted by both corporate appellants, that the holing in occurred and that some persons were killed and others injured. It was a prosecution case that should have taken no more than a few court hearing days to establish. · Instead, for reasons that have not been explained, the respondent issued 12 charges against the corporate appellants. There must have been some reason why the respondent decided to break up the three charges in the manner in which he did, although this reason has not been shared with the Court. · One of the consequences of laying a multiplicity of charges for unexplained reasons was that the proceedings were rendered much more complex and the task of the trial judge much more difficult. Another consequence was greatly expanded legal fees expended by all parties, including the team of lawyers representing the prosecutor. Further, the Government purse must have suffered as a result of the proliferation of the proceedings and the vast expenditure of legal costs. · Whilst the discretion to prosecute was not reviewable (apart from circumstances where there is an abuse of the discretion), if as a consequence of the discretion exercised there was a significant overlap in the scope of the charges that could otherwise be more economically accommodated by fewer charges and/or particulars (as in the present matter), then this was a matter the Court would be entitled to take into account when considering costs for both successful and unsuccessful defendants. A defendant to the proceedings should not have to bear the additional costs created by overlapping and multiple charges because of the prerogative of a prosecutor to frame the charges at will. · Staunton J was concerned about the manner in which the charges had been drafted, about the multiplicity of the charges and the complexity that they created. · The corporate appellants agreed to plead guilty to all charges if the prosecution dropped the proceedings against the personal defendants. That offer was made in August 2003. That is, it was made two days after the substantive hearing had commenced, which ultimately lasted 70 days. It is conceivable that had the respondent accepted that position there would have been a saving of at least one million dollars in legal costs suffered by all of the parties. Gross discourtesy was shown by the prosecutor and by the prosecutor's solicitor, Mr M Carrick (previously of the law firm Geoffrey Edwards & Co), in not replying to the letter from the corporate appellant's solicitors making the offer to plead guilty. · Counsel for the respondent in the sentencing proceedings took every point and proceeded with every argument that was possibly thought available. In particular, the respondent did not concede that the defendants had co-operated with relevant investigative authorities. · The respondent's reliance on s 51A of the Act was contrary to authority. Nevertheless, the respondent was motivated to strive for a greater level of penalties by reference to the provisions of s 51A.

25 The conclusions of Marks J regarding costs, which were set out at [758] of the minority judgment, were that his Honour:

(1) Would not have awarded the prosecutor/respondent any costs beyond 7 August 2003, apparently because the corporate defendants/appellants agreed to plead guilty on a conditional basis;

(2) Would have awarded the defendants/appellants their costs on and after that date because, he regarded the conduct of the prosecutor/respondent as being unacceptable and as having compromised the processes of the Court. 26 Marks J reached no conclusion about costs prior to 7 August 2003. Further, it would appear that in referring to "the defendants" in the context of Marks J indicating an intention to award them costs on or after 7 August 2003, his Honour makes no distinction between the corporate defendants/appellants and the personal defendants/appellants. Whether this outcome is what his Honour intended is not readily apparent. 27 As we have stated, it was the corporate appellants' submission that the conduct of the respondent was such that it warranted an order that no costs should be awarded beyond 7 August 2003. In making that submission the corporate appellants relied on the minority judgment. However, what the corporate appellants submitted in this respect does not reflect accurately what Marks J decided. As we earlier noted, at [758] his Honour stated: 758 I now come to the question of costs. Because I am in dissent I shall state my position briefly. I would not have awarded the prosecutor any costs beyond 7 August 2004 (sic - 2003), the date the corporate defendants agreed to plead guilty on a conditional basis. I would have awarded the defendants their costs on and after that date because, for reasons that I have now stated on a number of occasions, I regard the conduct of the prosecutor as being, in all the circumstances, unacceptable and as having compromised the processes of this Court. 28 So that what his Honour determined was that he would not have awarded costs to the respondent beyond 7 August 2003 because of the corporate appellants' conditional offer to plead guilty, not because of any conduct on the part of the respondent. However, because of the respondent's conduct his Honour would have awarded costs to the corporate appellants after 7 August 2003. 29 The corporate appellants, however, did not seek costs after 7 August 2003, but rather their primary position was that each party bear their own costs after that date. The following submission was put: In our submission, given the offer made and, if accepted, the consequent savings of cost, Court time and inconvenience to witnesses, the appropriate order is that the corporate Appellants pay the Respondent's costs incurred before 7 August 2003 on a party/party basis. Further that the corporate Appellants and the Respondent bear their own costs incurred after 7 August 2003. 30 On the other hand, the corporate appellants submitted earlier in their written submission that: The primary submission of the corporate Appellants is that no order to pay the costs of the Prosecutor be made as from 7 August 2003, being the date they made an offer to plead guilty. As indicated by Marks J. in the body of his judgment, the conduct of the Prosecutor was such that it warrants an order that no costs should be awarded beyond that date (our emphasis). 31 The "conduct of the Prosecutor" referred to in the submission was then identified by reference to the minority judgment, it being contended that the respondent's conduct led, inter alia, to "an undue expense burden on all of the defendants". Such conduct, according to the corporate appellants' submission, was constituted, in the main, by the following three elements:

(1) There was an unjustifiable multiplicity of charges laid against the corporate and personal appellants and that a defendant should not have to bear the additional costs created by overlapping and multiple charges because of the prerogative of a prosecutor to frame the charges at will;

(2) The respondent unjustifiably strove for a greater level of penalties by reference to the provisions of s 51A of the Act; and,

(3) In the sentencing proceedings the respondent sought to take every point in seeking penalties against the convicted defendants, contrary to the duties of a prosecutor. 32 The only way one may sensibly interpret the corporate appellants' submissions is that in contending that the respondent should not get his costs beyond 7 August 2003, the corporate appellants rely on two aspects of the minority judgment, namely:

(1) Because on 7 August 2003 the corporate appellants made a conditional offer to plead guilty, which the respondent refused to accept; and

(2) Because of the respondent's conduct which led to "an undue expense burden on all of the defendants" by the laying of a multiplicity of unjustifiable charges, by striving for a greater level of penalties through reliance on the provisions of s 51A of the Act, and by seeking to take every point in pursuing penalties, contrary to the duties of a prosecutor. 33 Thus, it is these matters that we are required to address in determining the costs issue. Given they are the matters raised directly by the corporate appellants in their written submissions as being relevant to the determination of costs in relation to them, and given the respondent has had the opportunity of replying to those matters, we are unable to see how, in dealing with them, that would require us to re-open proceedings. Further, we do not consider that any of these matters fall outside the leave we granted as to costs or, for that matter, that they may be treated more generally as an attempt by the respondent to re-open some aspect of the proceedings, given that they derive directly from the corporate appellants' reliance on the minority judgment for the purposes of supporting their submissions on costs. 34 We deal with each of the matters in turn after dealing with some general considerations as to costs in this matter. General approach to costs - Corporate appellants

35 It should be noted at the outset that, save for the issues raised by the appellants we shall shortly consider, there is a clear case for costs being awarded to the respondent in this matter having regard to the conclusions reached in the majority judgment. The corporate appellants were wholly unsuccessful in the challenge to the orders as to liability and sentence at first instance: see O'Sullivan v Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at [198]; WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329 at [13]. 36 It is true that the corporate appellants were successful in identifying errors in the first instance judgment, but the corporate appellants did not rely upon those errors in pressing their submissions as to costs. We would add that whilst it may be appropriate in particular cases to apportion costs where a party has only been partially successful (see O'Sullivan at [196]-[202]; Leighton Contractors at [13]), we do not consider that our findings as to error in this appeal warrant the application of that principle, as the findings did not alter the result at first instance. The question of apportionment may also arise in relation to the conduct of a party, but as we shall discuss, no proper basis has been identified in this case for such an approach based on any factors identified by the corporate appellants

Respondent's non-acceptance of guilty plea 37 As we understand the submissions of the corporate appellants (and Messrs Porteous and Robinson), they were that Marks J was correct in holding that the respondent should not have his costs beyond 7 August 2003 given that was the date when the corporate defendants offered to plead guilty on certain conditions and the respondent failed to accept the offer. 38 His Honour criticised the respondent for not accepting the offer of the corporate defendants to plead guilty on the conditions set out in the offers made by the appellants in August 2003. Marks J stated: 746 The material that I have extracted also highlights the fact that the corporate defendants agreed to plead guilty to all charges if the prosecution dropped the proceedings against the personal defendants. That offer was made in August 2003. That is, it was made 2 days after the substantive hearing, which ultimately lasted 70 days, had commenced. It is conceivable that had the prosecutor accepted that position there would have been a saving of at least one million dollars in legal costs suffered by all of the parties. The decision to reject that offer must only have rationally been made on the basis that the prosecutor wished to secure convictions against the personal defendants, and for no other reason. Irrationally, of course, there are other reasons associated with costs earned by legal practitioners. I do not suggest, for one moment, that this is the situation, because I simply do not know. It could not have been revenue based because the legal costs incurred in pursuing the proceedings solely for the purpose of securing convictions against personal defendants would far have outweighed any penalties in the aggregate which could reasonably foreseeably have been imposed on those personal defendants. 39 It seems to us that his Honour's criticism is inimical to what was stated by Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501 at 534: The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what: Barton v The Queen at 94-95; Jago at 38-39, 54, 77-78; Williams v Spautz (1992) 174 CLR 509 at 548; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75. 40 In any event, we note that the first offer made by the solicitors representing at the time the corporate appellants and Messrs Romcke and Porteous, was put in correspondence dated 1 August 2003. This correspondence suggested that the corporate appellants were prepared to assume that the evidence would unfold in a manner consistent with their guilt and offered to plead guilty to the night shift charges (that is, to 4 of the 12 charges against them) if the respondent was willing to have all of the charges against the two personal appellants (Messrs Porteous and Romcke) dismissed. The second offer was made in correspondence dated 7 August 2003. This correspondence suggested that the corporate appellants were willing to plead guilty to all of the charges against them if the respondent was willing to have all of the charges against the two personal appellants dismissed.

41 Whether the respondent should have accepted the offer was, in the circumstances, a matter for the respondent as prosecutor: Maxwell. It is true that if the corporate appellants had pleaded guilty from the beginning, as it appears they were willing to do, and the issues of liability of the corporate appellants were not in issue, the trial would have been shortened considerably. However, we agree with the respondent's submission that the corporate appellants could have pleaded guilty without attaching the condition relating to Mr Romcke and Mr Robinson set out in the correspondence. Further, it is not as though there was no credible case against the personal appellants; they were both convicted at first instance of the offences charged. Mr Romcke was partially successful on appeal but he was still found guilty of an offence. 42 We note also that the criticism by Marks J, of the respondent's decision not to accept the conditional offer by the corporate appellants, is at odds with the trial judge's conclusion regarding the matter. Whilst her Honour obviously had reservations about the length of time the proceedings were taking, and about the number of charges, at [376]-[377] her Honour stated: 376 The issue now is whether or not the costs order sought by the prosecutor should be discounted because of its failure to act on the offer made by the corporate defendants in August 2003. I think not. The decision ultimately was the prosecutors to make. Somewhat on that point and in support of the view I have expressed as to the role of the prosecutor I refer to the decision of the High Court in GAS v R and SJK v R (2004) 206 ALR 116 ( Gleeson CJ, Gummow , Kirby , Hayne , Heydon JJ). In that matter the Court was considering an appeal from the Court of Appeal of Victoria which had allowed prosecution appeals against a sentence imposed at first instance. The ground of appeal to the High Court was that the Court of Appeal erred in allowing the DPP to appeal in a manner said to be contrary to a plea agreement at first instance. In setting out the relevant principles affecting plea agreements the Court said, inter alia, at 125:

First, it is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person. The judge has no role to play in that decision.

Secondly, it is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely... Once again, the judge is not... involved in the decision. 377 It is also relevant on the point to note that the offer made by the corporate defendants was conditional on charges against all of the personal defendants being discontinued. At the conclusion of the proceedings I found offences proved against three of the eight personal defendants.

We agree entirely with her Honour's conclusions in this respect and consider that there is no proper basis to deny the respondent's costs of the appeal or at first instance. Respondent's conduct

43 As we earlier noted, the corporate appellants contended that the respondent should not have his costs beyond 7 August 2003 because of his disentitling conduct in the proceedings, which it was said consisted of three elements. We deal with each of those below, but in doing so we do not consider the matters raised are properly available in relation to costs in the light of the majority judgment on liability and sentencing and having regard to the content of the matters raised. Multiplicity of charges

44 There were 12 charges in total laid against the two corporate appellants. The majority judgment looked closely at the charges and the consideration extended over some 54 paragraphs. As the majority judgment acknowledged, the respondent was faced with a complicated factual matrix: 147 Given the complicated factual matrix confronting the prosecution in its consideration of how the charges should be laid, it is understandable why the respondent chose the approach that he did. The prosecutor was entitled to lay charges that reflected the total criminality of the appellants from the time in the latter part of 1994 when it was alleged there was a failure to undertake adequate planning and research as to the location of the old workings, to the time when it was alleged the appellants failed to ensure the safety of workers by allowing the continuous miner to hole into the old workings at about 5.30 am on 14 November 1996. The laying of the charges in the manner executed by the respondent, involving as they did multiple contraventions, was open to the respondent.

148 Whilst it was not part of the appellants' case, we wish to make it clear that we do not consider the laying of the charges was vexatious or oppressive or for some improper or ulterior purpose. In short, we do not consider there was any abuse of process. 45 It follows that we do not accept that there was an unjustifiable multiplicity of charges or that the respondent's approach to the laying of the charges is a basis for an order that no costs should be awarded beyond 7 August 2003. Section 51A 46 Marks J considered that an example of the respondent's over-zealous prosecution occurred in the sentencing hearing where his Honour criticised the respondent for making submissions concerning the operation of s 51A of the Act. Marks J stated at [750]-[751]: 750 The prosecutor sought to rely on s 51A of the Act which is in the following terms: [s 51A is then set out] 751 Relevantly for the purpose of those proceedings, the maximum penalty for a breach of the Act for a first offence by the corporate defendants was $500,000 and by a natural person was $50,000. Not content with exposing each of the defendants to a multiplicity of penalties with respect to a multiplicity of charges levied out of the one course of criminal conduct, the prosecutor sought to have an initial penalty with respect to each of the defendants set by reference to the maximum amount to which I have referred and proceeded to argue that all subsequent penalties imposed on each defendant should be fixed by reference to s 51A. That is, there had been a multiplicity of offences, the first would be dealt with at the appropriate maximum then prevailing, but all subsequent and later penalties would have a maximum limit fixed at a further 50%. This approach to the fixation of penalties for more than one offence arising out the same course of conduct had been rejected by Boland J and Staff J in this Court in previous proceedings, as noted by Staunton J in her judgment. Nevertheless, the prosecutor was motivated to strive for a greater level of penalties by reference to the provisions of s 51A. 47 It is not readily apparent what this has to do with the question of costs. In any event, the criticism has no substance. The respondent in his submissions on sentencing brought to the trial judge's attention the decisions of Boland and Staff JJ in Inspector Jones v Supercut Concrete Service Pty Ltd [2004] NSWIRComm 83 and Inspector Wilkie v Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency [2004] NSWIRComm 166, respectively. Both of the cases differed from the proceedings before Staunton J as they involved guilty pleas. In both cases the court, to remove doubt, recorded each conviction simultaneously.

48 The respondent's submission at first instance drew attention to the doubt over the operation of s 51A and urged a construction that the provision did apply where multiple charges were proven. At [31] of the sentencing judgment Staunton J acknowledged that the provisions of s 51A could be read in the way contended for by the respondent but preferred the approach taken by Boland and Staff JJ. To avoid doubt the trial judge also adopted the approach of recording the convictions simultaneously. 49 On an issue where there was no authoritative Full Bench precedent, or where doubt existed, the respondent was entitled, within reason, to propose an alternative approach. That is what occurred in relation to s 51A. 50 We do not accept that the respondent's attempted reliance on s 51A of the Act provides any basis for an order that no costs should be awarded to the respondent beyond 7 August 2003. Respondent's approach to sentencing proceedings 51 The corporate appellants relied on the general criticism of Marks J of the approach taken by the respondent in the sentencing hearing to contend that this approach amounted to disentitling conduct in respect of costs. The criticism was that the respondent took every point in seeking penalties against the convicted defendants. We presume the relevance of this criticism to the question of costs is that the respondent sought to, inappropriately or unnecessarily, draw out or lengthen the proceedings thereby causing the appellants to incur greater costs, and that appears to be the point relied upon by the corporate appellants in relation to the proceedings at first instance. 52 As the respondent submitted, the only example given regarding this criticism came from [143] of the sentencing judgment. It related to the trial judge's account of the submission put on behalf of the prosecutor that the corporate appellants only cooperated with the investigating authorities because the offence arose from a serious mining accident and there were legislative requirements that they do so. 53 At [143] of the sentencing judgment, Staunton J stated: On behalf of the corporate defendants, it was submitted they had cooperated with the relevant investigative authorities and this cooperation was a mitigating factor consistent with the provisions of s 21A(3)(m) of the CSPA. The prosecution demurred somewhat on that contention, suggesting that any cooperation by the corporate defendants was more because the offences arose from a serious mining accident and they were legislatively required to cooperate rather than a spontaneous willingness on their part to do so. I have to say I think that assessment, in all the circumstances, is too harsh. There was no evidence I am aware of in the substantive proceedings that evidenced anything other than one of cooperation with the relevant investigating authorities after the inrush. On that basis, I consider the defendants' cooperation is a matter entitled to positive consideration in the sentencing process. 54 We have examined the written submissions of the respondent at first instance on sentence and nothing adverse was put by him in relation to the cooperation of the corporate appellants in the investigation. In the transcript of the penultimate day of the hearing on sentencing the following was stated: ROTHMAN [ for the appellants ]: I next go to the question of assistance and cooperation from the time of the inrush onwards, including the rescue attempts, the comforting of families, and the like. Mr Porteous has been of great assistance. He was cooperative with the DMR investigation, and the subsequent proceedings in the Coroner's Court. HER HONOUR: I don't think that's in issue, is it, as I recall your submissions? Cooperation with the, you know, WorkCover - I know it wasn't WorkCover, frankly, because of the circumstances in which this arose, but is there any suggestion that Mr Porteous and the corporate defendants, and any others for that matter, were not fully cooperative in relation to any investigations that flowed? I just want to know whether that's - I put aside what you might say would be their right to defend themselves. CRAWSHAW [ for the respondent ]: Your Honour, I haven't said anything about that. I don't want to go any further than to say section 60 comes into the equation when one talks about investigations in relation to this matter as a whole, as your Honour has heard. My learned friends, perhaps, have put submissions in relation to the defendants, that they cooperated with the inquiry. I don't gainsay that. I don't really want to put a submission going to all investigations.

The reference to s 60 was a reference to that section in the Coal Mines Regulation Act 1982 which acts as a bar on the use of answers provided to inspectors carrying out investigations under that Act as admissible evidence. 55 The trial judge was not critical of the respondent as to his prosecutorial conduct in questioning the appellants' cooperation but considered the respondent's assessment, in all the circumstances, was too harsh. The appellants did not raise this matter in the grounds of appeal or in the submissions made on appeal. 56 We do not consider this matter was indicative of inappropriate prosecutorial conduct for the purpose of assessing costs, and we note it was not an issue between the parties at first instance or on appeal. Conclusions on costs - Corporate appellants 57 It follows from what we have said about the corporate appellants' reliance on their offer of August 2003 and their reliance on the minority judgment regarding costs that we do not accept the matters relied upon in that respect constitute disentitling conduct. That is to say, we do not agree that those matters constitute a proper basis for depriving the respondent of his costs after 7 August 2003. 58 We note that the corporate appellants' position was not that the majority should adopt the minority judgment on what should be the costs outcome (that judgment being the appellants should have their costs after 7 August 2003). Their position, relying on the reasoning of Marks J, was that the decision on costs at first instance should be quashed; that the corporate appellants pay the respondent's costs incurred prior to 7 August 2003 on a party/party basis; and, that the corporate appellants and the respondent bear their own costs incurred on or after 7 August 2003.

59 The respondent was overwhelmingly successful on appeal in relation to the corporate appellants. It follows from all that we have said that consistent with the majority's preliminary view and in accordance with the usual rule that costs follow the event (see O'Sullivan at [198]-[200] and Leighton Contractors at [13]) that, subject to what we have determined in relation to Mr Robinson, the corporate appellants shall jointly and severally pay the costs of the respondent in the appeal proceedings. We propose to order accordingly.

60 In relation to Mr Porteous, the respondent submitted that the usual rule would apply equally to the unsuccessful appeal by Mr Porteous. However, in keeping with the framework of the judgment at first instance at [386], the respondent did not seek costs orders against Mr Porteous. Counsel for Mr Porteous agreed that no costs orders should be made against him.

61 In these circumstances, we do not intend to vary the costs judgment at first instance in relation to Mr Porteous and we do not propose to make costs orders against him in respect of the appeal.

62 The respondent submitted in relation to Mr Robinson that the costs of his appeal should be substantially discounted by at least 80 per cent of the total costs of his lawyers for the appeal because of his joint representation on appeal with the unsuccessful appellants and his lack of success on the major issues relating to penal liability of the corporate appellants and his personal liability. 63 In relation to the costs at first instance, it was submitted that Mr Robinson should be treated in the same way as the successful defendants at first instance, in that there should be no costs orders specific to him but rather that this success be taken into account in reducing the costs payable by the corporate appellants to the respondent. As it has been noted, the costs framework of the trial judge was to reduce the costs of the proceedings at first instance payable by the corporate appellants by 10 per cent, or two per cent for each successful defendant. The respondent submitted this suggested that the success of Mr Robinson on appeal should result in no more than an extra two per cent reduction in the figure of 90 per cent of the prosecutor's costs of the proceedings at first instance payable by the corporate appellants. 64 Counsel for Mr Robinson sought indemnity costs from the respondent in relation to the appeal and the proceedings at first instance from 24 June 2003, and further an order that his costs be paid on a party/party basis prior to 24 June 2003.

65 The basis for the claim of indemnity costs lies in correspondence dated 24 June 2003 in which Mr Robinson placed the respondent on notice that the provisions of s 50 of the Occupational Health & Safety Act 1983 did not operate in such a way that they would apply to Mr Robinson in his position of surveyor at the mine. The respondent was advised that if the proceedings were not discontinued against Mr Robinson, the correspondence would be relied on in an application for indemnity costs in relation to any proceedings against Mr Robinson. It was further submitted: The Court found that the Respondent failed to discharge the onus of proof. This was so despite his being given every opportunity in the lengthy trial below to call all evidence available.

There is a broad discretion inherent in the Court that would allow the making of an indemnity costs order in appropriate cases.

The interests of justice are served if parties to proceedings such as these are required to consider carefully any reasonable offer, the acceptance of which will shorten the taking of the Court's time. In these proceedings the offer was made at an early time in the trial and its acceptance would have avoided the necessity for calling many witnesses.

In the circumstances, where the Respondent was put on notice of the very matter in respect of which they have failed, it is appropriate that indemnity costs be awarded. 66 In the alternative, Mr Robinson submitted that he should have his costs of the appeal and at first instance on a party/party basis. It was submitted that each charge against Mr Robinson had as an element that he was "a person concerned in the management of the corporation". The respondent, it was submitted, had failed to establish that necessary element of the charges; the fact that Mr Robinson in his defence had to address other elements and particulars flowing from the charge was irrelevant to present considerations. It was submitted the appropriate determination is to be made on the basis that the charge was not made out. 67 As to the issue of indemnity costs, it is clear from the authorities that in order to grant such costs the court requires some evidence of unreasonable conduct because party and party costs remain the norm: see Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616 per Mason P cited in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd and others (2001) 110 IR 351 at [65]. See also Plastachem at 366-368. 68 The unreasonable conduct asserted here is that notwithstanding notice by Mr Robinson in correspondence to the respondent dated 24 June 2003 that the provisions of s 50 of the 1983 Act did not operate in such a way that they would apply to the appellant in his position of surveyor at the mine, the respondent proceeded with the charges in the face of a notice that if proceedings were not discontinued Mr Robinson would seek indemnity costs. 69 The correspondence of 24 June 2003 was referred to in the trial judge's sentencing judgment: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 at [355]: 355 On behalf of the DG2 defendants the main contention in support of indemnity costs was centred on correspondence sent to the prosecutor's instructing solicitors in June 2003. In that correspondence the solicitors acting for six of the personal defendants (the DG2 defendants and Mr Robinson) requested the prosecutor to discontinue proceedings against all of them. The basis for that request was set out as follows: ...We note that in relation to four (4) of the six (6) persons that we represent, the Prosecutor is relying upon the statutory appointments of our clients as constituting the element of the offence that they are a 'person concerned with the management of the corporation'.

We note that none of the particulars relate to the Defendants, Terry Shacklady or Christopher Nicholls.

If this is the evidence that the Prosecutor is relying upon in order to make out that element of the offence, we would invite the Prosecutor to discontinue the proceedings against all of our clients now. In our view, the mere fact that our clients may have held, for example, an appointment as an Under-Manager, which essentially meant that they managed miners during a particular shift, this in no way could be said to constitute 'being concerned in the management of the Corporation'. In our respectful submission, the structure of the Occupational Health and Safety Act 1983 is such that offences under Section 50 are designed to apply to Directors or other very senior members of management which have responsibility for the management of the corporation, as distinct from, for example, discrete activities which are carried on as a part of that corporation's activities. It certainly does not apply to middle management, let alone a surveyor who has no management functions and whose functions are discharged during the course of a shift. Indeed the fact of the statutory appointment means that the holder of the appointment only has those powers, powers which do not relate to the management of the Corporation.

Kindly note that in the event that the Prosecutor does not discontinue the proceedings against our clients, we shall rely upon this correspondence in terms of:

1.An application for indemnity costs against the Prosecutor in relation to the proceedings before the Industrial Relations Commission; and

2.The mere fact that someone holds a title as a 'manager' does not mean that that person is therefore, by definition, involved in the management of the Corporation. That, of course, is a question of fact and on the basis of the material thus far served in the Brief and as is contained in your correspondence of 18 June 2003, the evidence simply does not satisfy the test for the establishment of that element. A fortiori this is particularly so in the case of Mr Robinson whose position was that of a surveyor and simply providing advice. 70 The question is whether the respondent's decision to press ahead with the charges amounted to unreasonable conduct in the face of the appellants' correspondence and that, therefore, indemnity costs should be awarded to Mr Robinson. It may be seen from the correspondence that the solicitors acting for six of the personal defendants, including Mr Robinson, contended that s 50 "was designed to apply to Directors or other very senior members of management which have responsibility for the management of the corporation". This contention was rejected at first instance (although Staunton J held Mr Robinson, a surveyor, was concerned in the management of the corporate appellants) and on appeal. These rejections were consistent with the decision of Spigelman CJ in Powercoal Pty Ltd and Another v Industrial Relations Commission (NSW) and Another (2005) 64 NSWLR 406 that the words "management of the corporation" in s 50(1) should not be read down so as to apply only to central management ([116]). The Chief Justice determined that: The Court is concerned with a person who has a level of complicity in the commission of the offence by the corporation. Such complicity arises in a context where persons in a managerial role could have taken steps to ensure that the objects of the Act are achieved.

71 In the Gretley Appeal the majority held at [518]: 518 Clearly, Mr Robinson was in a position to take steps to ensure the objects of the OHS Act were met, using the test considered by Spigelman CJ in Powercoal (CA), but that is not sufficient to bring Mr Robinson within the scope of s 50. The legislature has determined that for s 50 to apply the person must be concerned in the management of the relevant corporation, which whilst not limited to central management as the Chief Justice found, nevertheless requires the person to be in a managerial role. We are not satisfied that was the case with Mr Robinson. We consider that Staunton J erred in finding that Mr Robinson was concerned in the management of OPL and NWCC. The conviction of Mr Robinson should be quashed. 72 At first instance, Staunton J declined to accept Mr Robinson's submission that because the respondent did not discontinue the proceedings against him the respondent engaged in 'unmeritorious or improper conduct' warranting indemnity costs. We take the same view as her Honour. There was nothing unmeritorious or improper in the respondent contesting the proposition that s 50 of the 1983 Act was limited to Directors or other very senior members of management which have responsibility for the management of the corporation. Nor was the question of whether Mr Robinson was concerned in the management of corporate appellants a clear-cut issue such that it was so obvious he was not concerned in the management as to lead to the conclusion that the respondents were unreasonable in pursuing the prosecution. 73 The alternative submission put by Mr Robinson was that he should have his costs of the appeal and at first instance on a party/party basis. In this respect it was submitted that each charge against Mr Robinson had as an element that he was "a person concerned in the management of the corporation"; that the respondent had failed to establish that necessary element of the charges. It was submitted that the fact that Mr Robinson in his defence had to address other elements and particulars flowing from the charge was irrelevant. The appropriate determination regarding costs was to be made on the basis that the charge was not made out. 74 Both at first instance and on appeal the cases for the corporate appellants and Mr Robinson were put virtually as an integral whole; Mr Robinson was jointly represented on the appeal with the corporate appellants and Mr Porteous, and it was the issues relating to the liability of the corporate appellants that occupied the major part of these appellants' time on appeal. Further, Mr Robinson also pursued the issues of the corporate appellants' liability at first instance where that was also the major issue and which consumed most of the time at trial. Whilst Mr Robinson was successful in having his conviction quashed and should have an order for costs, it would not be an appropriate outcome for Mr Robinson to be awarded all of his costs at first instance and on appeal. To do so would mean that Mr Robinson would get costs in relation to his joint participation in the unsuccessful appeal in respect of the liability of the corporate appellants. 75 We also do not consider the appropriate outcome is that proposed by the respondent, given the close integration of the cases put by Mr Robinson and the corporate appellants both at first instance and on appeal. 76 We have decided in relation to Mr Robinson, and consistent with the rationale and framework of the judgment at first instance on costs, which we referred to earlier (and see [380]-[382] of the first instance judgment), and having regard to all of the material before us relevant to the issue, that the costs awarded against the corporate appellants on appeal should be discounted for the fact that Mr Robinson was successful on the appeal. 77 The discount should be 10 per cent, thus resulting in an order that the corporate appellants would pay 90 per cent of the respondent's costs of the appeal. Further, that in relation to the first instance proceedings, whereas Staunton J ordered the corporate appellants to pay 90 per cent of the respondent's costs we have decided, given Mr Robinson's success on appeal, that figure should be reduced to 85 per cent.

78 The respondent submitted that there be no costs order made in relation to the proceedings against Mr Romcke at first instance. The major reason for this was an acceptance by the respondent of the approach taken by the trial judge where her Honour made no order as to costs in relation to Mr Romcke or any other personal defendant at first instance.

79 However, in relation to the appeal, the respondent submitted that the Court should take a similar approach to that propounded in respect of Mr Robinson. That is, Mr Romcke was jointly represented with the unsuccessful appellants at first instance, failed in his appeal against liability for his managerial role with NWCC and failed in the major issues he pursued at first instance and on appeal. Accordingly, whilst there should be an award to Mr Romcke of the costs of the appeal, as suggested by the tentative view of the majority, it was submitted this award should be substantially discounted, by at least 80 per cent.

80 Mr Romcke submitted he should have the costs of the appeal and each party should bear its own costs of the proceedings at first instance. As the respondent sought no costs order against Mr Romcke in relation to the trial proceedings there is agreement between the parties that the appropriate order should be that each party bears its own costs in respect of the proceedings at first instance. We accept that such an order is appropriate.

81 In relation to the costs of the appeal, Mr Romcke submitted: · The Court found there was not sufficient evidence before the trial judge to support a finding beyond reasonable doubt that Mr Romcke was concerned in the management of the company Oakbridge Pty Limited (OPL). As a consequence in relation to the OPL related contraventions the appeal was upheld and the judgment and orders of the trial judge were set aside. · In relation to the proceedings relating to Newcastle Wallsend Coal Company Pty Limited (NWCC) the appeal was upheld in relation to the sentence. The decision and orders of Staunton J in relation to sentence were set aside. · At all stages of the appeal the Respondent opposed any alteration to the orders of the trial judge. · A further consideration is the impact of the letter forwarded to the Respondent on 24 June 2003 by which the Respondent was put on notice that the material did not support a finding that Mr Romcke was a person "concerned in the management" of OPL. The same proposition was made in relation to NWCC. · The interests of justice are served if parties to proceedings such as these are required to consider carefully any reasonable offer, the acceptance of which will shorten the taking of the Court's time. In these proceedings the offer was made at an early time in the trial and its acceptance would have avoided the necessity for calling many witnesses. The Respondent's submissions on costs do not pay any proper regard to the impact of the correspondence of 24 June 2003. · Given the ultimate findings of this Court in relation to Mr Romcke's relationship with OPL, it may have been appropriate to award costs in favour of Mr Romcke from that date [24 June 2003], at least to the extent of 50 per cent of the costs incurred at trial on an indemnity basis, as well as the costs of the appeal. Notwithstanding this and, having regard to the findings referred to, the Appellant accepts the orders proposed by this Court [that is, the orders tentatively proposed by the majority in respect of Mr Romcke at [632] that Mr Romcke should have his costs of the appeal and each party should bear its own costs of the proceedings at first instance]. 82 Relevant considerations in relation to Mr Romcke are that: · Mr Romcke was one of the defendants (along with Mr Robinson) referred to in the letter to the respondent dated 24 June 2003 where it was asserted the personal defendants were not concerned in the management of the corporate defendants; · At first instance Mr Romcke joined with the other appellants in denying liability, not only in respect of the corporate appellants but also his personal liability; · On appeal, although separately represented, Mr Romcke supported the submissions of the other appellants concerning the liability of the corporate appellants, but added his own submissions on appeal in that respect in a significant way and made submissions challenging the findings at first instance regarding his personal liability; · On appeal it was found there was not sufficient evidence before the trial judge to support a finding beyond reasonable doubt that Mr Romcke was concerned in the management of OPL. As a consequence, in relation to the OPL related contraventions, the appeal was upheld and the judgment and orders of the trial judge were set aside. In relation to the proceedings concerning NWCC the appeal was dismissed in relation to liability and upheld in relation to the sentence. The decision and orders of Staunton J in relation to the sentence imposed on Mr Romcke were set aside and the majority exercised the Court's discretion pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. 83 As to the import of the 24 June 2003 correspondence, we take the same view in respect of Mr Romcke as we did in respect of Mr Robinson. There was no disentitling conduct on the part of the respondent in proceeding with the prosecutions in the face of the letter. 84 As to the costs of the appeal, we note, of course, that Mr Romcke was separately represented. However, as the respondent submitted it was the issues relating to the liability of Mr Romcke, together with the issues he raised relating to the liability of the corporate appellants, rather than the issues on which Mr Romcke succeeded, that were expensive in terms of costs. The respondent submitted: The ultimate failure of Mr Romcke in relation to penal liability for his managerial role in NWCC and the failure of… Mr Romcke… on the issues relating to the liability of the corporate appellants and the majority of issues relating to [his] personal liability, should in itself result in a substantial discount on the costs that [he] would ordinarily receive as suggested in the tentative view of the majority.

85 We have decided, that in relation to the upholding of the appeal in respect of the OPL-related offences, Mr Romcke should have 75 per cent of his costs of the appeal. 86 In relation to the OPL-related offences at first instance (where Mr Romcke was not separately represented) and consistent with our treatment of Mr Robinson, we would discount the amount payable by the corporate appellants to the respondent by a further two per cent, making it 88 per cent (this reduces the overall costs payable by the corporate appellants to 83 per cent). In relation to the NWCC-related offences, as we have noted Mr Romcke's appeal as to liability was dismissed but in relation to sentence the majority exercised its discretion under s 10 of the Crimes (Sentencing Procedure) Act to dismiss the charges. In that respect, we note what we said at [623]: 623 In re-sentencing Mr Romcke, we have given serious consideration to rejecting counsel's submissions concerning s 10 due to her Honour's findings in the sentencing judgment at [235]-[236] that there was no evidence of contrition on Mr Romcke's part, and that Mr Romcke accepts little, if any, responsibility for what has occurred. However, notwithstanding that in most cases lack of contrition would make a significant difference, when one looks at the true extent of the objective and subjective factors in this case, as we have, we do not think that contrition should be the determinative factor (particularly when re-sentencing on appeal). 87 We have decided in relation to the NWCC-related offences to take the same approach as the Full Bench did in Morrison v Powercoal (No 3) (2005) 147 IR 117 in relation to the personal respondent Mr Foster in that case. That is, there shall be no order as to costs of the appeal against Mr Romcke. In taking this approach to costs we note the submission by senior counsel in the substantive appeal proceedings that we should treat Mr Romcke on the same basis as Mr Foster if the appeal regarding liability was not upheld and that the Full Bench should apply s 10: see [612] and [619] of the Gretley Appeal. 88 Given that is what the majority did in relation to Mr Romcke, we see no reason to take a different approach to the question of costs. OTHER CONTENTIOUS MATTERS

89 As we foreshadowed, there were contentious matters that do not bear directly on the question of costs but which in the public interest we consider, need to be addressed. We consider that we should take this step so as to avoid any prospect of injustice. 90 At [755]-[757] Marks J made strong criticisms of the prosecutor/respondent in the following terms: 755 If one takes into account the unnecessarily complex, extensive and repetitive nature of the charges and the manner in which they were framed, together with the refusal to allow the corporate defendants to plead guilty upon discontinuance against the individual defendants, the attempt to pursue higher penalties under s 51A and the denial of mitigating factors in favour of the defendants during the sentencing process, one must query the bona fides of the prosecutor in terms of these proceedings. Public monies have, in my opinion, been unduly wasted, the defendants have been put to incredible cost which, ultimately, impacts on the economy of the State, the resources of this State and the resources of this Court have been wasted. In addition, it is fundamental that the criminal law must be administered in an appropriate fashion. The legislature has chosen to emphasise the importance of occupational health and safety matters by creating absolute offences. If the prosecution of offences is undertaken in an arbitrary, capricious and irresponsible fashion, the laws themselves are brought into disrepute for reasons that are obvious. This is especially so in the area of occupational health and safety prosecutions where it is the custom of the prosecutor to seek a moiety of the penalty, that is payment of one half of any amount imposed by way of penalty. Presumably, the prosecutor has not sought to do so in these proceedings because it is abundantly clear that not only did the Department of Mineral Resources prepare the initial erroneous documents but its own personnel including its Chief Inspector could detect nothing wrong with those documents, as referred to in the judgments of Staunton J. 756 I would, advisedly, characterise what has happened in these proceedings as constituting more than prosecution, and amounting to persecution of the defendants. 757 Judicial officers and the legislature both have a role to play in the administration of justice. I take the view that it is appropriate for a judicial officer to make comment about the prosecution and management of proceedings, especially criminal proceedings, where it is thought that the conduct of a prosecutor was inappropriate. For the reasons which I have set out above, I think that the prosecutor, Stephen Finlay McMartin whom I understand to be an inspector with the WorkCover Authority of New South Wales, has acted inappropriately in and about the manner in which he formulated the charges against the defendants and in and about the manner in which the prosecutions were conducted. Perhaps, as is the case with much of the work undertaken by police investigators and investigators with the arms of government, that the prosecution of offences under the Act be undertaken by an independent, objective body with undoubted expertise such as the DPP. 91 Regrettably, in the foregoing paragraphs there were not only what we regard as unfair criticisms by Marks J of the respondent, but also observations by his Honour that tend to impugn the respondent's personal integrity and reputation by questioning his bona fides and by implying, as his Honour did, that: the prosecutions were brought in an "arbitrary, capricious and irresponsible fashion"; that the respondent was not objective as prosecution of offences under the Act should be undertaken by an independent, objective body; and, stating that Mr McMartin acted inappropriately. 92 Those criticisms related mainly to what his Honour regarded as a multiplicity of charges brought against the appellants. For the reasons we gave earlier, there was no justification for such criticism, but in any event, the respondent's approach to formulating the charges did not warrant the personal attack made on his character. 93 Further, in our opinion, the immoderate criticisms by Marks J of the way the charges were brought, particularly the personal attack on Mr McMartin, were inconsistent with the principle that the judiciary is to remain detached from the decision making process of prosecutors: Maxwell v The Queen (1996) 184 CLR 501 at 512 per Dawson and McHugh JJ. His Honour's strong attack on the respondent arguably compromised the public perception of judicial independence and impartiality. 94 There were two other specific criticisms by his Honour in respect of which there was no proper foundation. We deal briefly with these below. Respondent's explanation of charges

95 Marks J observed in the minority judgment at [647] that no explanation was proffered by the respondent as to why the charges were formulated in the way they were. That is not correct. The reason for bringing the charges in the way that the respondent did was explained in the first interlocutory proceedings before Wright J, which were heard in 2000. As the majority judgment observed at [133]: 133 As to NWCC's awareness of how the respondent was prosecuting the charges, it was made apparent to the appellant at first instance that the respondent was relying on different aspects of the primary facts in laying the two sets of night shift and systems of work charges and did so by relating the charges to different aspects of s 15(2). In the interlocutory proceedings before Wright J the respondent spelt out how the three types of charges were to be distinguished: (1) The night shift on 13 and 14 November 1996 as a place of work or work environment was not maintained in a condition that was without risks to health and safety and welfare is drawn in part from s 15(2)(d) and (e) and also contravenes s 15(1).

(2) The period of working and developing 50/51 panel between about 16 September 1996 and until the commencement of the night shift on 13 November 1996 as there was not provided or maintained systems of work that were without risks to health, safety and welfare is drawn from s 15(2)(a).

(3) The planning, research and assessment activities undertaken between about 22 March 1994 to 14 November 1996, which did not ensure health, safety and welfare, otherwise contravenes s 15(1).

Criticism of respondent's solicitor 96 Marks J was critical of the respondent's solicitor, Mr Carrick, in not replying to the appellants' letter of 7 August 2003 where a conditional offer was made by the corporate appellants to plead guilty. His Honour stated: 747 The position is exacerbated by the gross discourtesy shown by the prosecutor and by the prosecutor's solicitor, Mr M Carrick of the law firm Geoffrey Edwards & Co, in not replying to that letter. Whatever may be the position concerning prosecutors in legal proceedings, certainly legal practitioners are bound by the standards of professional conduct to respond to correspondence from other legal practitioners with respect to a matter, even if only to indicate that there would be no response to the offer. 97 We note that at [370] of the sentencing judgment Staunton J stated, not by way of directing criticism of the respondent or his lawyers but as a matter of fact, that neither the respondent nor his instructing solicitors replied to the appellants' correspondence of 1 August and 7 August 2003 containing the offer. Marks J, however, described the failure to reply as a gross discourtesy. 98 In light of his Honour's criticism of Mr Carrick the respondent sought leave to tender correspondence from the corporate appellants' solicitors dated 8 August 2003 to the respondent's solicitors that was claimed to refer to the rejection of the offer set out in the letters 1 and 7 August 2003. We do not propose to re-open proceedings merely to receive this letter. However, in the absence of any criticism by the trial judge of Mr Carrick and in the absence of the matter being raised by the corporate appellants on the appeal proper in this respect, we do not consider there is any basis for the strong personal attack on a solicitor for "gross discourtesy" or any basis to impugn the solicitor's reputation. Hence, we do not consider that any proper basis for criticising Mr Carrick has been demonstrated. GRETLEY APPEAL CITATION - CORRECTION 99 There is one final matter. As the appellants pointed out, the citation of the decision in the Gretley Appeal refers to "Inspector McMartin", not Mr McMartin as an individual. As it is noted in the body of the judgment at paragraph [2] it is clear that the Court understood that Mr McMartin commenced the proceedings with the consent of the Minister for Industrial Relations and not as a WorkCover Inspector. Accordingly, pursuant to the slip rule, the proper citation is: "Newcastle Wallsend Coal Company Pty Limited & Ors v Stephen Finlay McMartin". We order that the record be amended accordingly. ORDERS AND DIRECTIONS

(1) The corporate appellants, Newcastle Wallsend Coal Co Pty Ltd and Oakbridge Pty Limited shall jointly and severally pay 90 per cent of the costs of the respondent in the appeal proceedings.

(2) The corporate appellants, Newcastle Wallsend Coal Co Pty Ltd and Oakbridge Pty Limited shall jointly and severally pay 83 per cent of the costs of the respondent in the proceedings at first instance.

(3) The respondent shall pay 75 per cent of the costs of Jonathan Romcke in the appeal proceedings in relation to Matter Nos IRC 3236 and 3237 of 2000.

(4) There shall be no order as to costs against Mr Romcke at first instance or on appeal in relation to Matter Nos IRC 3234 and 3235 of 2000.

(5) There shall be no order as to costs of the appeal in relation to either Mr Porteous or Mr Robinson.

(6) The orders as to costs made by Staunton J are varied to the extent provided by these orders. That is to say, her Honour's orders at [393] of the costs decisions are varied as follows: (i) Order (i) is varied by substituting the following order: (i) The corporate defendants, NWCC and OPL, shall jointly and severally pay 83 per cent of the prosecutor's costs of these proceedings. Reference to 'these proceedings' includes those interlocutory matters identified in this judgment as to costs. 101 The respondent is directed to file and serve short minutes of order reflecting this decision within 14 days. The orders shall be settled in Chambers unless there is any disagreement as to the terms of the orders, in which case that disagreement shall be notified at the time of the filing of the draft orders proposed by the respondent. In the event of disagreement as to the draft orders, any party opposing the orders shall file and serve alternative orders within a further seven days of the orders filed by the respondent.

102 Following the disposal of the substantial appeal proceedings in the judgment of this Court in Newcastle Wallsend Coal Co Pty Ltd and ors v Stephen Finlay McMartin (2006) 159 IR 121, the question of costs remains outstanding and is the subject of this judgment. I have had the advantage of reading in draft the joint judgment of Walton J, Vice-President and Boland J. 103 In the substantive appeal proceedings, I was in dissent. As a result, my decision and my reasons therefore do not play any part in the disposal of these proceedings concerning costs. 104 As Kirby J said in the High Court of Australia in Garcia v National Australia Bank Limited (1998) 194 CLR 395 at [56], "56. It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order ( Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 313-314; Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 188; Great Western Railway Co v Owners of SS Mostyn [1928] AC 57 at 73-74. See MacAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, (1998), Ch 10). Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. Even so great a Justice of this Court as Dixon J cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority of the participating Justices (disregarding for this purpose any who did not agree in the order of the Court disposing of the proceedings on the point in question). Even then, the remarks will not be part of a binding rule unless they relate to an issue in contention which had to be decided by the Court to reach its order." 105 The outstanding questions of costs before the trial judge and on appeal are matters that I consider I am bound to deal with, notwithstanding my dissent in the substantive appeal proceedings. Having regard to the majority judgment in the substantial appeal proceedings, I agree that the orders proposed in the majority judgment of Walton J, Vice-President and Boland J are appropriate for the resolution of these outstanding costs issues and I would make orders in the same terms. 106 It would be neither appropriate nor useful to engage in any discussion concerning any matter contained in my dissenting judgment in the substantive appeal proceedings. However, my agreement with the orders proposed by the majority in this judgment should not be construed as agreement with or acceptance of the criticisms of my dissenting judgment contained therein. _________________________________________

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