Newcastle Wallsend Coal Company Pty Limited and others v McMartin

Newcastle Wallsend Coal Company Pty Limited and others v McMartin - [2007] NSWIRComm 125 - NSWIRComm 2007 case summary — Zoe

[6]

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

[22]

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

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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.

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(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:

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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.

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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:

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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.

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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.

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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'.

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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.

[83]

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.

[84]

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

[85]

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

[89]

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

[96]

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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