Solicitors:
McCullough Robertson Lawyers (Applicant)
Lancaster Law & Mediation (Respondent)
File Number(s): 2016/266431
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Citation: [2019] NSWDC 634; [2020] NSWDC 307; [2021] NSWDC 171
Date of Decision: 8 November 2019; 18 June 2020; 13 May 2021
Before: Russell SC DCJ
File Number(s): 2016/266431
[2]
Judgment
BEECH-JONES CJ at CL: On 2 March 2022, the Court published its judgment in relation to nine questions of law submitted for determination by the District Court sitting in its summary jurisdiction, pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39; "Orr v Hunter (No 1)").
On about 9 March 2022, the respondent, Hunter Quarries Pty Ltd ("Hunter Quarries"), filed an application pursuant to r 3.15 of the Supreme Court (Criminal Appeal) Rules 2021 for an order that the applicant in this Court, Steven James Orr, pay its costs of and incidental to the referral of those questions. Mr Orr was the prosecutor in the proceedings at first instance. Following judgment in Orr v Hunter (No 1), Hunter Quarries was acquitted.
Section 5AE(2) of the Criminal Appeal Act provides that where a point of law stated during summary proceedings is referred to this Court, then following its determination of those questions the Court may "make any such order or give any … direction to the court [below] concerned as it thinks fit". This provision has been construed so as to authorise this Court to make an order for costs following the determination of the questions submitted under s 5AE(1) (see Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71; "Taylor"; at [38] to [39]; Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202 at [3]; "Mackenzie").
In Mackenzie at [4], this Court stated as follows in relation to the exercise of the power to award costs:
"The power to award costs under s 5AE(2) is conferred in terms which do not indicate the considerations which may be relevant to the exercise of the power, create an expectation or presumption that the power will be exercised in one way or another or require special reasons or special circumstances before the power is exercised: Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426 at [59] and Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252 at [21]. The discretion should only be exercised on grounds connected with the proceedings or the conduct of the parties in relation to the proceedings: Latoudis v Casey (1990) 170 CLR 534 at 569; Robinson v Woolworths Ltd at [59]."
In its written submissions in support of its application for costs, Hunter Quarries contended that it did not seek the order for costs to punish the unsuccessful prosecutor (i.e., Mr Orr), but rather to compensate it for successfully addressing the questions that were referred. It noted this Court's observation in Orr v Hunter (No 1) that many of the questions referred to and the submissions of Mr Orr were more akin to appeal. Hunter Quarries contended that overall this Court answered the questions submitted to it in a manner that reflected an acceptance of its submissions. Hunter Quarries also noted that the manner in which Mr Orr contended that the judgment below should be interpreted was rejected by this Court. Hunter Quarries contended that this Court concluded that the primary judge considered all the relevant matters when deciding to dismiss Mr Orr's case. Lastly, the submissions noted that, as the primary judge was obliged to submit questions to this Court at the request of Mr Orr, Hunter Quarries had no choice but to appear and respond to his submissions.
Mr Orr opposed the application for a costs order. His submissions noted that two of the questions referred to this Court were posed by Hunter Quarries and that the remaining seven were referred at his request. He contended that a stated case is not an appeal and, as such, there is no "win" or "loss" for the parties, but instead only advice given to the primary judge. The submissions noted that the seven questions referred at his request were held by the primary judge to "throw up questions of law, upon which [he] should seek advice" and that this Court found that each question referred was a pure question of law that was capable of being answered. It was submitted that this Court answered seven of the nine questions and that, with explanation, declined to answer the remainder. It was submitted that the Court's consideration of the answers provided guidance to judicial officers determining prosecutions pursuant to s 32 of the Work Health and Safety Act 2011 (the "WHA"). Finally, while Mr Orr accepted that not all of his contentions were accepted, he also noted that a number of Hunter Quarries' contentions were rejected as well, including its contention that none of the questions were appropriate to answer and that none of questions three to five had any utility.
In its reply submissions, Hunter Quarries contended that the issues sought to be agitated by Mr Orr were directed to the integrity of the trial judge's reasoning and that Mr Orr's contentions were rejected by this Court. The submissions again noted that Hunter Quarries was forced into this Court by a procedure that required the submission of questions of law on the application of the prosecutor. It also submitted that Mr Orr's principal contention concerning the irrelevance of the concept of reasonable foreseeability was rejected and that the prosecution against it has now been dismissed by the primary judge. Hunter Quarries noted that costs are compensatory and referred to the following passage from Mackenzie at [12]:
"This is not to apply any presumption that costs follow the event. It is simply a recognition that the costs discretion should be exercised on grounds connected with the proceedings or the conduct of the parties in the proceedings. The result of the proceedings is clearly a matter connected to the proceedings. The EPA was successful, and the respondents were unsuccessful, in their respective arguments on the submitted questions in the proceedings. An award of costs serves the purpose of compensating the EPA for its costs incurred in the proceedings. It is not punishing the respondents for being unsuccessful in the proceedings."
Lastly, Hunter Quarries rejected any suggestion they should have made a submitting appearance given that they were prima facie the beneficiary of a judgment of the primary judge given after 45 days of hearing which, if left undisturbed, would entitle them to an acquittal.
[3]
Consideration
Consistent with the approach in Taylor and Mackenzie, I consider that an order for costs should be made in favour of Hunter Quarries. As noted by Hunter Quarries, they were effectively forced to respond to these proceedings by reason of Mr Orr's application to the primary judge. His Honour was obliged to refer to this Court the questions submitted before the entry of final orders. While some of the questions of law referred by Mr Orr yielded answers which may be of some utility to other courts hearing prosecutions, they did not raise any particular question of principle and the answers did not advance much the current case law in relation to the provisions of the WHA.
Overall, if consideration were given to the questions posed and answers provided in order to determine the relative measures of success or failure of the parties, that would strongly favour Hunter Quarries' application. However, that is not the decisive consideration. The submission of the questions of law by Mr Orr to this Court did not appear to be undertaken to achieve some clarification of the proper approach to be adopted to prosecutions under the WHA. Instead, in substance, this proceeding was an attempt to appeal his Honour's judgment on a question of law (see Orr v Hunter (No 1) at [2], [34], [43] and [60]). Since the judgment of this Court in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 ("Cobar Management"), it could not be seriously doubted that that is not the purpose of s 5AE (see Cobar Management at [103]). Instead, Cobar Management confirmed that s 5AE is designed to facilitate the giving of advice by this Court to courts at first instance on "pure questions of law" that arise in summary proceedings (see Cobar Management at [103] and [109]). Such questions must be capable of being recognised on the face of the question and do not involve any analysis of the facts of the judgment below (id). It follows that appeals on questions of law submitted under s 5AE should rarely, if ever, require a close analysis of the factual context in which the question arises, or whether somehow the primary judge erred in their application of the law to the facts as found. Yet, in this case, Mr Orr's submissions were overwhelmingly directed to that very end.
In substance, this was an attempt at an appeal from his Honour's judgment rather than addressing the purpose for which s 5AE exists. In light of the Court's disposition of the questions, Mr Orr was generally unsuccessful in either securing the answers to the questions posed that he contended for or in undermining the primary judge's reasons. Given the vital interest that Hunter Quarries had in seeking to ensure that the primary judge entered a verdict that was consistent with his Honour's reasons after such long and hard-fought litigation, it had no practical alternative but to engage with the questions and approach of Mr Orr in this Court. In those circumstances, Hunter Quarries should not be denied its costs.
Accordingly, I propose the following order:
(1) Steven James Orr pay the costs of Hunter Quarries Pty Ltd of and incidental to the referral to this Court of the questions that were ultimately determined in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
WALTON J: I agree with Beech-Jones CJ at CL.
PRICE J: I agree with Beech-Jones CJ at CL.
[4]
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Decision last updated: 22 June 2022