The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales

Submissions for the appellant 4The appellant's primary submissions may be summarised as follows: (a) The costs order made by the CIM be set aside. The issue of costs at first instance should be considered by his Honour at the conclusion of the remitted sentencing hearing. (b) There is authority to support the proposition that a court may make orders for the apportionment of costs payable to the successful party on appeal when considered appropriate: see Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17; Toll Transport Pty Ltd v Transport Workers' Union of New South Wales (No 2) [2010] NSWIRComm 97; and Newcastle Wallsend Coal Co Pty Ltd v McMartin (No 2) [2007] NSWIRComm 125; (2007) 164 IR 326. (c) As the appellant had a measure of success by succeeding in parts of the appeal it should be entitled to a portion of the costs of the appeal. The appellant had partial success on its "Invalidity Ground" and on the "Sentence Ground". These matters consumed the most time on appeal. Whilst the appellant did not succeed on the Liability and Defence Grounds, these grounds did not impact on the result of the appeal and did not consume any substantial time during the course of the appeal. (d) An appropriate apportionment would be for the appellant to be entitled to 70 per cent of its costs of the appeal.

Submissions for the respondent 5The respondent's submissions may be summarised as follows: (a) In cases where one party has not been wholly successful, there is authority for an issues based approach to the exercise of the discretion to award costs in summary criminal matters and receiving guidance from the approach that applies in civil cases: WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd [2001] NSWIRComm 244; (2001) 110 IR 351 at [58]. (b) By parity of reasoning with the decision of the majority in Daly Smith Corp (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) [2006] NSWIRComm 111; (2006) 151 IR 173 at [83], [85] and [86] there should be no disturbance on appeal of the order as to costs made by the Chief Industrial Magistrate because, despite two of the particulars not being sustainable after the decision in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 , there has been no disturbance on appeal of his finding that the charge had been proved. (c) Any success that the appellant had on appeal was due to the argument that the particulars were inadequate. This was an argument not raised in the proceedings at first instance. Further, although there will be a further consideration by the Chief Industrial Magistrate of the penalty, the findings as to liability and the penalty imposed by the Chief Industrial Magistrate have not been disturbed by the judgment of this Court on appeal. Moreover, the decision of the Chief Industrial Magistrate was reached on the basis of reasons that were not disturbed on appeal. Nor did the appellant in the appeal submit that there was any aspect of the decision of the Chief Industrial Magistrate in relation to costs that was erroneous. (d) There should be no order for costs of the appeal in favour of the appellant. Rather there should be an order that the appellant pay the respondent's costs of the appeal. (e) Any objective assessment of the appeal would come to the conclusion that it was the respondent that had overall success; the appellant was not acquitted of the charge. (f) The appellant only had success on appeal in relation to two of the particulars being inadequate and, in relation to those particulars, the argument of the appellant was not contested by the respondent. Further, that argument did not affect the liability of the appellant. In relation to all the other arguments raised by the appellant, other than the question of reduction of penalty, which is still to be decided by the Chief Industrial Magistrate, the appellant failed. (g) In Inspector James v Ryan (No 4) [2010] NSWIRComm 155, where the appellant in an appeal had been successful in one of its arguments on appeal and was granted leave to appeal, the Full Bench awarded costs in full to the respondent to the appeal. (h) The original or amended grounds of appeal did not challenge the adequacy of the particulars. Although the respondent knew in advance that there was to be a challenge to the adequacy of the particulars, a further amendment to the notice of appeal raising this challenge, was only added by the Court's leave at the commencement of the hearing of the appeal. The position in this case where the appellant has had success, albeit uncontested, on a point not argued before a lower court is similar to that in the case of Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 where the High Court ordered the successful appellant to pay the respondent's costs in relation to a point not raised at first instance. (i) Although the issue of whether there should be a reduction in penalty is to be decided by the Chief Industrial Magistrate, the question of whether the appellant should receive any costs as a result of any further hearing on penalty is a matter that should be left to be considered by the Chief Industrial Magistrate in the same way that the question of whether the penalty should be reduced has been left to the Chief Industrial Magistrate. (j) I n relation to the appeal proceedings, because the argument about the two particulars found to be inadequate was uncontested, this issue occupied negligible time and resources in the case. Similarly, the question of whether the penalty should be remitted to the Chief Industrial Magistrate occupied negligible time and resources. (k) The argument that occupied most of the time at the hearing in relation to the "Invalidity Ground" was about the particular on which the respondent was successful. The appellant took up most of the rest of its time at the hearing in pursuing the "Liability Ground" and the "Defence Ground", despite conceding at the end of its oral submissions on these grounds that they were not applicable to the particular relied on by the respondent in the appeal. Submissions of the appellant in relation to the "Manifestly Excessive Sentencing" Ground raised arguments which did not succeed at all.

Appellant's submission in reply 6The following points were made in reply: (1) the principles relating to costs (including costs on appeal) relied upon by the appellants are not "materially affected" by the fact that the present proceedings are criminal proceedings; (2) there are two primary reasons why the Respondent's contentions as to the costs at first instance should be rejected: (a)this was not a case in which the Prosecutor merely failed to " make out " certain of the particulars. The appellant was put to considerable time and expense in defending the charge in relation to the two invalid particulars, which could have never supported any valid charge known to the law; (b)the Full Bench has remitted the question of sentencing and ipso facto the findings made by the Chief Industrial Magistrate as to sentencing and his Honour's orders as to the penalty to be imposed have been disturbed and are to be reconsidered. Therefore, the costs of the proceedings below are to be equally re-considered in light of the orders of the Full Bench as presently constituted. (3) the appellant did have overall success in the appeal. It succeeded on the Invalidity Ground in part and the Sentencing Ground in whole. In accordance with the ordinary/usual rule, it is entitled to its costs as the successful party. (4) The decision in Miller v Miller (1978) 141 CLR 269 does not give rise to a principle of universal application that costs are not to be awarded in an appeal if a new ground is raised; (5) it is indisputable that whatever time was spent on the Invalidity Ground was ultimately directed to setting aside both the Conviction Order and the Sentencing Order. The appellant succeeded in the latter. Therefore, the costs order sought by the appellant (as to an apportionment of its costs as to 70%) properly and fairly reflects the time spent in the appeal and the outcome of the proceedings; (6) the appellant accepts that it should not be entitled to its costs in relation to the application to set aside the Conviction Order before it had been sentenced and that the costs order of that stay motion should not be disturbed.

Respondent's response 7In its response to the appellant's reply the respondent made two points: (1) the appellant was not put to considerable time and expense, over and above the time and expense in defending the "valid" particular; (2) the "Sentencing Ground" of the appeal was that the Chief Industrial Magistrate "erred in law in his exercise of discretion upon sentencing which fundamentally miscarried". The appellant did not succeed in this Sentencing Ground at all. Further, the Court has not disturbed any orders of the Chief Industrial Magistrate, including the "Sentencing Order".

Consideration 8In relation to costs at first instance, we propose to adopt the appellant's submission that the costs order of his Honour Chief Industrial Magistrate Hart on 11 August 2009 be set aside and the matter of costs of the first instance proceedings be remitted to his Honour for determination. 9In Cretney, the Full Bench summarised the principles applicable to the awarding of costs. In doing so the Full Bench stated at [8]: ... (g) Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 , citing New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed) (see also Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304 at [38]; Bonic v Pacific General Securities Ltd [2009] NSWSC 1221 at [12]). (h) Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite Protective Personnel , citing Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported) (see also Bostik and Bonic ). However, in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Finkelstein and Gordon JJ stated that: Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. ... (k) If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Elite Protective Personnel, citing Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27] (see also Bostik and Bonic ). (l) Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296, which in turn cited Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272 (see also Bostik and Bonic ). ... 10In relation to the costs of the appeal, the usual order is that costs follow the event: Cretney at [8(e)]. In the present case, the ultimate result was that there was no acquittal of the appellant, but because two particulars going to essential factual elements of the charge were held to be invalid, the matter was remitted to the CIM for his consideration as to what should be an appropriate penalty given that the singular failure by the appellant was a failure to " maintain adequate guarding of the Press in that the guarding was removed and not replaced on the Press". 11In other words, the appellant was not successful in having the conviction overturned, but was successful in having the sentence reconsidered in circumstances where two of the three particulars of the charge, which would have been taken into account by the CIM in sentencing, are no longer to be taken into account. The respondent was successful in resisting the overturning of the conviction. 12We consider the appropriate order in relation to the costs of the appeal is that each party should pay its own costs.

Orders 13The Full Bench makes the following orders: (1) Each party shall bear its own costs of the appeal. (2) The costs order of his Honour Chief Industrial Magistrate Hart made on 11 August 2009 is set aside and the matter of costs of the first instance proceedings is remitted to his Honour for determination.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2011