T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira

Industrial Relations Commission (NSW)|2006-07-31|Before: Wright J, Walton J, Staff J, Ms P

CITATION: T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira (No 2) [2006] NSWIRComm 229

APPELLANT Terence Roland Tisdale PARTIES: RESPONDENT WorkCover Authority of New South Wales (Inspector Sequeira)

CORAM: Wright J President; Walton J Vice-President; Staff J

Morrison v Powercoal Pty Ltd and Anor (No 3) (2005) 147 IR 117 O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 123 IR 158 CASES CITED: T & M Industries and Anor v Inspector Sequeira [2006] NSWIRComm 25 Workcover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor (2005) 147 IR 329 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459

APPELLANT Mr R Moore of Counsel

LEGAL REPRESENTATIVES: RESPONDENT Ms P Lowson of Counsel

Ms R Sutton Moray & Agnew

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

T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira

Application by T & M Industries (Aust) Pty Ltd and Anor for leave to appeal and appeal against a decision and orders of Local Court Magistrate Maughan given on 9 September 2003 and 13 October 2003 in Matter Nos 20242200/02/2, 20242226/02/2, 20242234/02/2 and 20242253/02/2.

1 In T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira [2006] NSWIRComm 25, the appeal brought by Mr Terence Tisdale against his convictions under s26(1) and s31N(a) of the Occupational Health & Safety Act 2000 ("the Act") was dismissed. 2 The parties sought leave to file further submissions as to costs following judgment in that appeal. The Court directed the parties to file and serve written submissions with a view to the Court considering whether to decide the matter on the papers or further hear the parties as to costs (particularly if the parties sought to adduce evidence). 3 Having had the opportunity to consider the written submissions of the parties and given that neither party has sought to adduce further evidence, we are satisfied that the matter may be dealt with without further hearing. Certain matters of detail relevant to the present matter are to be found in earlier Full Bench judgments in these proceedings. CONSIDERATION

4 The usual principle in criminal prosecutions and appeals from prosecutions before this court is that in a successful prosecution, costs may be awarded to the prosecutor on the basis that costs will follow the event but that such costs may be apportioned - or reduced - in certain circumstances: Workcover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Limited & Anor (2005) 147 IR 329 per Walton J, Acting President, and Staff J at [13]. See also Morrison v Powercoal Pty Ltd and Anor (No 3) (2005) 147 IR 117; WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459 at [19]. For example, costs may not strictly follow the event where the defendant could be said to have been partially successful in some identifiable or discrete portion of the case; or because of the manner in which the hearing was conducted. (See further the discussion in O'Sullivan v Crown in the Right of New South Wales (Department of Education and Training) (2003) 123 IR 158 at [198] - [199] and Leighton at [5] - [13]). 5 There was no demur from this principle in the present proceedings by either party and, subject to a consideration of the arguments of the parties on certain specific issues, we consider that the appellant should, therefore, bear the costs of the respondent in this appeal. 6 The parties raised a number of arguments as to specific issues, which we will now deal with, Relevance of previous offer for costs in a fixed amount

7 Mr R Moore of counsel, who appeared for Mr Tisdale, contended that the costs of the prosecutor up to the hearing held on 27 July 2005 should be fixed at $20,000. This was advanced on the basis that the prosecutor was prepared to accept that amount in the hearing before Kavanagh J on 27 July 2005 if Kavanagh J was minded to make orders dismissing the appeal and orders for costs of a fixed amount. 8 By way of background, the matter was listed before Kavanagh J on 27 July 2005 for return of summons and mention. At that hearing, Kavanagh J found that Mr Tisdale had not complied with all requirements of orders made by Kavanagh J on 13 July 2005 relating to the conduct of the matter and that self-executing orders of the Full Bench (as restated by Kavanagh J on 13 July 2005) dismissing the appeal (and related matters) had taken effect. As such, Kavanagh J purported to endorse those orders (see further T & M Industries [2006] NSWIRComm 25 at [12] - [14]). The orders made by Kavanagh J were appealed in separate proceedings and the Full Bench ultimately upheld the appeal by consent and set aside those orders on 31 October 2005. 9 Ms P Lowson of counsel, who appeared for the respondent, contended that the submission made by the respondent regarding $20,000 was limited to the specific circumstances of the hearing on 27 July 2005 and that, in any event, Mr Tisdale did not accept the offer so that Kavanagh J did not ultimately make an order for costs in a fixed amount. 10 We agree that the respondent should not be bound to the limit of $20,000 for costs incurred up to 27 July 2005; the offer was made in the context that, if Kavanagh J were minded to make an order for a fixed amount, the prosecutor would accept $20,000. Such circumstances did not arise as Kavanagh J made a general costs order without fixing an amount and we do not consider it appropriate to effectively bind the respondent to its previous offer proffered and not accepted in a different context. Hence, this contention by Mr Tisdale is rejected. Costs of the hearing before Kavanagh J

11 The appellant contended that the parties should bear their own costs for the hearing before Kavanagh J on 27 July 2005. The appellant's submission does not provide a basis for this contention. 12 The respondent has sought an order for Mr Tisdale to bear the respondent's costs of the hearing before Kavanagh J on 27 July 2005. The respondent advanced argument in favour of such an order notwithstanding that orders made by her Honour on that day, as we have noted, were set aside. Firstly, the respondent contended that Kavanagh J made an order on 27 July 2005 that the appellants pay the costs of the day and that order was not set aside by the orders of the Full Bench made on 31 October 2005 setting aside Kavanagh J's orders dismissing the proceedings. Secondly, the respondent contended that it was appropriate for Mr Tisdale to bear the respondent's costs for the 27 July 2005 hearing as the matters dealt with on 27 July 2005 arose from Mr Tisdale's default in paying the sum of $10,000 into the Commission by the due date and, in any event, that day had been set down as a return date for summonses issued by the appellants and costs would have been incurred in the ordinary course. 13 We do not accept the respondent's contentions in relation to this issue. As to the first argument, we refer to the orders made by the President in Matter No IRC 4298 of 2005 and specifically order (1), which provides: The question of the costs of the proceedings in Matter no IRC 6274 of 2003 on 27 July 2005 and generally will be dealt with by the Full Bench in the hearings on 3 and 4 November or subsequently as the Full Bench considers appropriate. 14 As to the second matter, while the hearing was taken up with dealing with the appellant's failure to comply with orders as to payment of security for costs, we do not consider that this, of itself, provides a basis for Mr Tisdale being required to bear the respondent's costs of the hearing given that the orders made by her Honour were later set aside on appeal. The fact of Mr Tisdale's failure to follow directions at this point is not enough. It is well settled that a costs order is compensatory rather than punitive in nature as stated by Walton J, Acting President, and Staff J in Workcover v Leighton (at [5]): The details which were relevant to that particular case should not obscure the primary consideration governing the exercise of the broad discretion to award costs: whether it would be just and reasonable in the circumstances to award costs to the defendant. 15 Accordingly, in the circumstances where the order made at the hearing on 27 July 2005 dismissing the appellant's original appeal was ultimately set aside by consent on appeal, we do not consider it appropriate for the appellant to bear the respondent's costs of that hearing as sought by the respondent. Accordingly, we accept the appellant's submission that the parties should bear their own costs of the hearing on 27 July 2005. Appropriate appellants to bear cost orders

16 The next issue in contention is against whom the costs orders should be made. Mr Tisdale accepted that, for the most part, the appellants were required to bear the respondent's costs but contended that as the appeal was instituted by both Mr Tisdale and the first appellant, T&M Industries (Aust) Pty Ltd ("T & M Industries"), the order for costs of the appeal up to and including 27 July 2005 should be made against the appellants jointly and severally and thereafter solely against Mr Tisdale. The respondent contended that Mr Tisdale should be solely liable for all costs incurred after the date of de-registration of T & M Industries. 17 This issue arises because the first appellant, T&M Industries, was de-registered by the Australian Securities and Investments Commission on 21 February 2005 following this appeal being instituted by both Mr Tisdale and T&M Industries. T&M Industries was de-registered for reasons unrelated to the subject matter of these proceedings. Even though T&M Industries had been de-registered, both appellants continued to be named in these proceedings and the Court made a number of orders requiring Mr Tisdale to seek re-registration of T&M Industries. These orders were not complied with. On 31 October 2005, the Full Bench made orders in Matter No IRC 4298 of 2005, including the following: 6(c) In the event that re-registration is not effected prior to 23 September 2005, then the appeal will proceed on the basis that the first appellant is no longer participating in it, subject to any further order of the court. 18 T & M Industries was not re-registered prior to 23 September 2005 and these proceedings were narrowed to the matters concerning Mr Tisdale. 19 We do not accept Mr Tisdale's submission that both appellants should be jointly and severally liable for costs up to and including 27 July 2005. As already mentioned, on 27 July 2005, Kavanagh J made orders dismissing the appeal and those orders were subsequently set aside on appeal (in Matter No 4298 of 2005). No orders were made on 27 July 2005 relating to the status of T & M Industries. 20 Based on the material before us, it was at all times within the power of Mr Tisdale to obtain re-registration of T & M Industries and Mr Tisdale continually failed to comply with orders of this Court to obtain such re-registration. Accordingly, we do not consider it appropriate that we make a costs order against T & M Industries which would, in part, relate to a period in which T & M Industries was de-registered. Accordingly, we agree with the respondent's submission that Mr Tisdale should be solely responsible for costs for the period following the de-registration of T & M Industries namely after 21 February 2005.

21 We also note that in a related issue the respondent sought an order that Mr Tisdale be required to pay the respondent's actual costs for the hearing on 13 July 2005. By way of background, the hearing on 13 July 2005 related to an application by Mr Tisdale to vary the orders of the Full Bench of 16 May 2005 relating to the timetable for the matter. The respondent submitted that it was appropriate that Mr Tisdale pay the respondent's actual costs as the Full Bench, in its interlocutory judgment of 16 May 2005, ordered that any application to vary the timetable must be accompanied by an undertaking to pay the respondent's actual costs.

22 The second appellant has not challenged this submission and, in his submission, has accepted that: Orders made by the previously constituted Full Bench in the appeal as to costs where the Appellants sought extension of time by way of motion should stand and should be borne by he and the corporate Appellant jointly. 23 The only issue in contention in this respect is thus whether the order should be made against Mr Tisdale or against Mr Tisdale and T & M Industries jointly. 24 For the reasons already given, we do not consider that an order for these costs should be made against T & M Industries as it was, at that time, de-registered and, as such, should be made only against the Mr Tisdale. Matters of clarification

25 Finally, the respondent has sought that we clarify the proposed orders in two respects. First, the respondent has sought an order that its submissions as to costs form part of the appeal and that the respondent is entitled to recoup the costs of preparing those submissions. 26 Second, the respondent submitted that we certify the following costs as being appropriately incurred:

(a) the costs of preparing submissions on legal issues concerning the availability of a stay of local court orders as appropriately incurred notwithstanding that the legal question of the availability of a stay was not resolved; and

(b) the costs of the affidavit of Paul Thompson that was prepared for the hearing of the appellants' application to stay the appeal held on 15 March 2005 in circumstances where the affidavit was not formally marked as an Exhibit. 27 The appellant has not made any submissions regarding these issues. We shall consider each issue in turn. 28 We consider the respondent should receive its costs for the proceedings of this appeal to determine the costs issue. This is so because for the most part we have accepted the respondent's submissions on costs. 29 Second, while our certification of these costs overlaps with the work that would be undertaken by a costs assessor in the event of a dispute between the parties as to quantum of costs, given the long drawn-out history of this matter and our desire to make our orders clear, we are prepared to express our view that the costs referred to in paragraph 26 above were appropriately incurred and form part of the respondent's costs in this matter. 30 Finally, we note that since the date of judgment in these proceedings, one of the members of the Full Bench has received an improper communication from Mr Tisdale that has not been taken account of in making these orders. It is sufficient for the present purposes to observe that while we considered another course of action, we have resolved to take the course of returning the letter to Mr Tisdale's legal representatives without taking any action against him. Orders

1 T & M Industries (Aust) Pty Ltd and Mr Terence Roland Tisdale shall pay, and be jointly and severally liable for, the costs of the respondent for this appeal up to and including 21 February 2005.

2 Subject to orders 3 and 4, Mr Terence Roland Tisdale shall pay the costs of the respondent for this appeal (including the applications as to costs) after 21 February 2005.

3 In accordance with order 2(iv) made by a Full Bench on 15 May 2005, Mr Terence Roland Tisdale shall pay the respondent's actual costs of the hearing on 13 July 2005.

4 Each party shall bear their own costs of the hearing on 27 July 2005.

5 The sum of $10,000 paid to the Commission registry on or about 21 July 2005 as security for costs is: (a) to be released forthwith to the solicitors for the respondent; and

(b) to be deducted from the final amount of costs agreed or assessed as payable by the second appellant to the respondent.

6 The amount of costs shall be as agreed between the parties or, failing agreement, as assessed.

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Cases Cited (5)