Woolworths Ltd v Dr K Chant and Anor

ASIC v Rich [2003] NSWSC 297 Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 Berwin v Donohoe [1915] HCA 79; (1915) 21 CLR 1 Director of Public Prosecution (NSW) v Zhang [2007] NSWSC 308 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 Mallard v The Queen [2005] HCA 104; (2005) 224 CLR 125 CASES CITED : Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; (2007) 168 Crim R 566 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission [2006] NSWCA 129; (2006) 153 IR 386 R v H; R v C [2004] UKHL 3; (2004) 1 ALL ER 1269 R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117 R v Petroulias (No 22) [2007] NSWSC 692 R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 R v Saleam (1999) NSWCCA 86; (1997) 96 A Crim R 421 Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1996) 186 CLR 62

Plaintiff - Woolworths Ltd PARTIES : First Defendant - Dr Kerry Chant, Acting Chief Health Officer, NSW Department of Health Second Defendant - His Honour Magistrate AE Townsden

COUNSEL : Plaintiff - Mr SJ Buchan, counsel Defendants - Ms B Baker, solicitor advocate

SOLICITORS : Plaintiff - JP Gould Solicitors Defendants - IV Knight

• 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LIST

11074/09 WOOLWORTHS LTD v DR KERRY CHANT (NSW DEPARTMENT OF HEALTH) AND ANOR

JUDGMENT 1 HER HONOUR: By summons of 25 February 2009, Woolworths Limited ('Woolworths') sought an order under s 54(1) and s 55(3)(a) of the Crimes (Appeal and Review) Act 2001, granting leave to appeal an order made by the Local Court on 29 January 2009, setting aside a subpoena for production of certain documents issued at its request. In the alternative, an order under s 69 of the Supreme Court Act 1970 was sought, quashing the order. 2 Both the proceedings before the Local Court and these proceedings have been disposed of, other than the question of the costs of these proceedings. 3 The Local Court proceedings concerned prosecutions brought under the Public Health Act 1991 and the Public Health (Tobacco) Regulation 1999, in respect of alleged breaches of tobacco advertising regulations at two Woolworths stores. They were listed for hearing before Magistrate Townsden in the Broken Hill Local Court in December 2008, but his Honour then dealt only with questions of jurisdiction, Woolworths arguing that the prosecution was not validly commenced and that the Local Court had no jurisdiction to hear the matter. 4 The decision was reserved and on 12 December, a subpoena was served on the New South Wales Department of Health, requiring production of an identified authority to prosecute, dated 6 July 2003 and all subsequent such prosecutions, as well as documents evidencing the prosecutor's appointment to identified positions. 5 On 17 December, documents were produced to the Court, but access to the documents was opposed. Reasons for the decision on jurisdiction were given on 18 December and on 29 January 2009, an application to set aside the subpoena was heard. That application succeeded. In these proceedings, Woolworths sought to challenge that decision. 6 It became unnecessary to hear the parties on the appeal, because on 6 March 2009, the disputed documents were provided to Woolworths, on a without prejudice, save as to costs, basis. On 30 March, the prosecution proceedings were heard in the Local Court. At that hearing Woolworths did not rely on the documents provided in these proceedings and the jurisdictional argument was not then re-agitated. Woolworths was convicted of one offence and acquitted of another.

Order of costs sought 7 Once the disputed documents were provided, the defendant proposed to Woolworths that the matter of the costs of these proceedings be resolved on the basis that each party bear its own costs. That offer was not accepted, but these proceedings were discontinued, save as to costs. 8 Woolworths accepted that once it had been provided with the disputed documents, 'there was no further utility in seeking to quash the Magistrate's decision to set aside the subpoena'. Nevertheless, it sought an order as to costs in its favour under Part 42 r 42.19 of the Uniform Civil Procedure Rules 2005, contending that the defendant always had a duty as prosecutor to disclose the documents to Woolworths, the validity of the commencement of the prosecution having become an issue in the proceedings below. The defendant had unreasonably resisted that production and had withheld the disputed documents, even when their production was sought by subpoena. Had the documents been disclosed in a timely manner, as they ought to have been, these proceedings and the costs incurred would have been avoided, as would costs incurred in the proceedings below, in relation to the issue of the authority to prosecute. It followed, it was argued, that an order as to the costs of these proceedings, should be made in its favour. 9 The defendant's case was that there would be no departure from the usual costs order, namely an order that Woolworths bear its costs of the proceedings, other than to order indemnity costs in its favour, given Woolworths unreasonable refusal of its offer in relation to costs. 10 The defendant argued that Woolworths had not shown that there was any error of law in the decision below and that the defence never had a prosecutorial obligation to disclose the documents sought by Woolworths, notwithstanding its request that it be provided with the documents, prior to the jurisdictional hearing. The Magistrate had correctly concluded that Woolworths was not entitled to the documents, under the subpoena served. That the defendant had later provided the documents, in order to resolve these proceedings, was not a basis on which a costs order could properly be made against it. To the contrary, the rejection of its offer as to costs, would result in an order in its favour, on an indemnity basis.

The Public Health Act provisions 11 Section 61L of the Public Health Act, in force at the relevant time, provided: 61L Consent required for prosecutions (1) Proceedings for an offence against this Division or any regulations made under this Division are not to be commenced without the consent in writing of the Director-General or a person authorised by the Director-General in writing for the purposes of this section. (2) In any such proceedings, a certificate: (a) purporting to be signed by the Director-General, or (b) stating that the person who signed it is authorised by the Director-General for the purposes of this section, is prima facie evidence of the matters stated in it, in so far as they bear on the requirements of this section. 12 The defendant served two certificates of consent to the proceedings on Woolworths in September 2008, on which it relied. The documents at issue between the parties were the instruments of authorisation, upon which those certificates rested and the documents of the prosecutor's appointment to the relevant positions.

The hearing below 13 The prosecutions were brought in the Local Court in September 2007. The defendant was then also prosecuting another supermarket chain, Coles. Woolworths became aware that in the Coles proceedings, an issue had arisen as to the validity of the commencement of the prosecution. Coles had been supplied with a copy of an instrument of authorisation relevant to its proceedings, dated 6 July 2003. Woolworths obtained a copy of that instrument and assumed that it also underpinned the certificates it had been provided with by the defendant, in relation to its prosecution. 14 There is no question that the parties were of a common mind, that the validity of the commencement of the prosecution was in issue between them. On 6 June 2008, the Crown Solicitor advised the Registrar of the Broken Hill Local Court that the two Woolworths prosecutions 'will raise similar issues to the Coles prosecution' which had been listed for argument on jurisdiction on 16 June. On that basis, the hearing of the Woolworths prosecution was adjourned. 15 The Coles hearing did not proceed and on 16 July the Crown solicitor wrote to Woolworths' solicitor, seeking confirmation of 'the nature of the jurisdictional argument your client is proposing to raise', so that the utility of adjourning until after the Coles hearing could be assessed further. Woolworths' solicitor confirmed that the jurisdictional issues raised in the Woolworths proceedings were similar to those raised by Coles. In August, further information was sought by the Crown Solicitor as to the nature of Woolworths' jurisdictional arguments. In September, the Crown Solicitor served the s 61 certificates. 16 On 1 December, the Crown Solicitor advised that the Coles prosecution had been withdrawn and that the jurisdictional argument had not proceeded. Woolworths' solicitor then confirmed that the jurisdictional argument was still alive. The Crown Solicitor replied, noting that Woolworths had failed to put on its written submissions as the Court had directed and sought their service. 17 On 3 December, Woolworths' solicitor advised that the question of jurisdiction rested on the necessary consent pursuant to s 61L not having been given, the prosecution having been approved by Dr K Chant 'Acting Chief Health Officer', a position not covered by the instrument of authorisation. In the absence of necessary consent, the prosecution had to fail: see Berwin v Donohoe [1915] HCA 79; (1915) 21 CLR 1. This advice rested on an understanding that the instrument of authorisation relevant to the Coles prosecution, was also relevant to the Woolworths prosecutions. 18 On 3 December, the Crown Solicitor advised that while s 61L certificates had been served, the underpinning authorisation had not and that '[a]ny single document going to appointment or authorisation cannot be read in isolation of other relevant documents'. What those documents were, was not revealed, nor were the documents supplied. 19 On 4 December, the Crown Solicitor advised that it proposed to seek an adjournment of the jurisdictional hearing. On 5 December, the Crown Solicitor wrote to the Court, enclosing that application and explaining that it was made in a context where another jurisdictional argument which Woolworths was raising, was an issue reserved in other proceedings before the Supreme Court. 20 On 5 December, Woolworths' solicitor advised the Crown Solicitor that:

'We refer to your letter dated 3 December 2008. The instrument of authorisation that we have referred to in previous correspondence is the authorisation by the Director-General (Robyn Kruk) dated 6 July 2003. We expect you to have a copy of that authorisation at court on Monday. It is a relevant and material document going to the question of jurisdiction that you should have discovered. If there are other documents that touch on the question of appointments or authorisations that you have not served you should do so immediately. You understand as a prosecuting authority you are obliged to serve all relevant material.' 21 That day, the Crown Solicitor replied: 'In your letters of 3 and 5 December 2008 you indicate that you intend to raise a jurisdictional argument relating to an instrument of authorisation dated 6 July 2003. This document has not been provided to you by my Office. I am instructed that this document has not been provided to you by the Department of Health. I do not know how you have obtained this document. I refer to my letter of 3 December 2008 and reiterate that the document you refer to cannot be read in isolation and any argument that assumes that this document is the only document that goes to authorisation would be misconceived.

I reiterate that the prosecutor relies on Certificates pursuant to s. 61L(2) of the Public Health Act 1991 . The Certificates were sent to you under cover of letter dated 1 September 2008. I do not agree that there is any obligation to serve any further material and in this regard I would invite you to consider the decision of Johnson J in Zhang v Director of Public Prosecutions [2007] NSWSC 308 particularly at [124] and [126].' 22 The instruments of authorisation were not produced and the jurisdictional argument advanced on 8 December in their absence. 23 When the documents were then sought by subpoena, they were produced, but access to them was resisted. The prosecutor's case was firstly, that it had no obligation to produce those documents; it only had a duty to provide the certificates issued under s 61L and its duty went no further than compliance with the section. Secondly, that Woolworths had to show that it was 'on the cards' that the documents sought would assist their case and that could not be established, because 'there's been no suggestion that there are no other documents of authorisation and in fact it's been said by myself from the bar table that there are'. The existence of an authorisation of another prosecution in relation to Coles, on a different date and by another officer, could not assist in the resolution of the matters arising in this prosecution. The third point was that there had been a ruling on the wording of the certificates relied on, in the proceedings and the matter had to move forward. 24 His Honour concluded that Woolworths had not established that the subpoenaed material would 'disclose any actual material that may shed any doubt in relation to the s 61L certificate', taking the view that concerns expressed from the bar table, as to whether another prosecution had been properly commenced, was not a basis on which conclusions about these prosecutions could rest. Woolworths' case was only assertion. It had not established that there was anything on the cards, that would suggest any concerns as to the legitimacy of the certificates in this case. In criminal prosecutions subpoenas could not be issued for the purpose of discovery.

The plaintiff's argument on costs 25 Woolworths contended that because consent to prosecute was known to be in issue between the parties, specifically, the terms of the instruments of authorisation on which the s 61L certificates rested, the prosecutor had a duty to disclose documents in its possession, relevant to that issue (R v Reardon (No 2) [2004] NSWCCA 86; (2004) 60 NSWLR 454). That included a duty to disclose the documents later provided in March 2009. 26 The prosecutor refused to provide those documents, its case below being that Woolworths was not entitled to challenge the certificates it relied on, although it was conceded in these proceedings, that given the terms of s 61L, such a challenge could be mounted and that the success or failure of that challenge would depend entirely upon the terms of the instruments of authority which Woolworths was seeking access to. 27 On the evidence, Woolworths had come to have a belief that the relevant instrument of authorisation did not support the certificates, it having obtained a copy of the instrument of authorisation provided by the prosecutor in the Coles litigation and believing that the same authority underpinned the prosecution brought against it. The prosecutor was aware, but did not disclose, that the instruments relevant to the Woolworths' prosecutions were different to that upon which the Coles prosecution rested. 28 In the Woolworths' prosecutions, the defendant insisted that it had no prosecutorial duty to serve the relevant instrument of authorisation, despite being aware of Woolworths' error and being asked to provide the relevant instruments. The prosecutor's attitude below was that it was entitled to rely on the certificates, which relieved it of any obligation to disclose further material relevant to the issue.

29 On 18 December, Woolworths' case on jurisdiction failed and the application to set aside the subpoena was listed for hearing on 29 January. The decision setting aside the subpoena, given that day, was the subject of these proceedings. The subsequent disclosure of the documents at issue in March, led to the discontinuation of these proceedings. Had these documents earlier been disclosed, as they ought to have been, the jurisdictional argument would have been shortened and the subpoena argument avoided entirely. The documents clearly established the necessary authority. 30 The duty of disclosure related to documents relevant, or possibly relevant to 'issues in the case', that term having a wide meaning, with a broad view being taken of what is relevant and what is in issue (see R v Reardon (No 2) at 468 and Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [17]. Here, the authority to prosecute and the valid commencement of the proceedings was indisputably at issue between the parties, as the Crown Solicitor had itself advised the Court. The prosecutor had documents in its possession relevant to that issue and thus, on the basis of these authorities, had an obligation to disclose them. No onus fell on Woolworths to establish a legitimate forensic purpose in respect of such documents, before disclosure was required. 31 Contrary to the position taken below, in these proceedings the defendant had accepted that the legislative scheme did not provide that the certificates it relied on, were conclusive proof of the matters stated therein, but only prima facie evidence. It was accepted that the certificates could be challenged, or rebutted by other evidence. Woolworths was entitled to put the consent to prosecute and the validity of the prosecution in issue (See Roads and Traffic Authority of NSW v Baldock [2004] NSWCCA 35; (2007) 168 Crim R 566 at 575, 577.) Having done so, the prosecutor was obliged to disclose the authorities underpinning the certificates. 32 Instead of giving such disclosure, the prosecutor then wrongly resisted the subpoena which sought production of the authorities. Despite succeeding below, as soon as these proceedings were commenced, access to the documents were given. 33 This practical outcome should lead to an order for costs in its favour, following the approach of Austin J in ASIC v Rich [2003] NSWSC 297 at [77] - [79], where it was held:

78 I have reached the conclusion that the defendants have been substantially successful in obtaining, by consent orders, the relief they sought in their application. Where an application is disposed of by consent, it is not normally appropriate to make an order for costs except as agreed between the parties. In particular, on any application for costs in such circumstances, the Court will take into account the desirability of encouraging and not penalising a party who responds to an application by negotiating a compromise: see, for example, Gambro Pty Ltd v Fresenius Medical Care of Australia Pty Ltd [2002] FCA 581 (10 May 2002), paragraph 26.

79 Nevertheless, there are cases, of which this is an example, where it is appropriate for the Court to make a costs order, in circumstances where the parties have reached agreement to dispose of the substance of the application but there is no agreement as to costs. My view is that in the present case, the plaintiff adopted an attitude to discovery of documents in the possession of third parties that left the defendants with no realistic option but to make the application. Although the plaintiff's attitude was adopted at an early stage, insistence upon that attitude brought disputed discovery issues between the parties to a head only in December 2002, specifically by virtue of the plaintiff's letter of 13 December 2002. The consent orders eventually agreed to by the plaintiff were inconsistent with the attitude of principle that it had previously adopted. The consent orders represented substantial success for the defendants on all issues, and did not embody the kind of "constructive compromise" to which Tamberlin J referred in the Gambro case.

The defendant's case on costs 34 For the defendant it was argued that the documents were provided in these proceedings on a without prejudice, save as to costs, basis 'in an attempt to save both this Court and the parties time and expense'. The defendant should not be penalised for having acted reasonably in this regard. It had no legal obligation to provide the instruments of authority and its actions should not be construed as a concession of the legality of Woolworths' claims. 35 The usual order in a case where proceedings are discontinued, was that the plaintiff pays the defendant's costs, an order displaced in a situation such as this, where an intervening circumstance renders the proceedings moot. In that event, usually each side pays its own costs (see Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission [2006] NSWCA 129; (2006) 153 IR 386). 36 An order for costs in a situation such as this will only rarely be made in favour of the plaintiff. (See Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1996) 186 CLR 62.)

37 It was the reasonableness of the parties maintaining these proceedings, which was to be considered, not the reasonableness of the attitude taken in the Local Court proceedings, although it was accepted that what there occurred, was not an entirely irrelevant consideration in this case. 38 In these proceedings, it was apparent that the defendant had acted reasonably at all times, producing the documents in question, shortly after the proceedings were commenced and also making a reasonable offer that each party bear their own costs. By way of contrast, Woolworths had not acted reasonably in these proceedings, defaulting on the Court's timetable for the filing of evidence and submissions and causing hearing dates to be vacated, yet still not complying with an amended timetable. 39 The order sought would only be made if the Court were able to conclude that Woolworths would necessarily have succeeded in these proceedings. That conclusion was not open. In the proceedings below, Woolworths had not provided particulars sought of the jurisdictional argument, which only became apparent at the hearing on 8 December, with Woolworths advising only on 1 December that '[a]ll issues are alive including jurisdiction, delegation and consenter as the informant'. At the hearing, Woolworths put the defendant to proof as to consent and the prosecutor relied on Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 at [126]:

126 Counsel for the Defendant informed the Local Court that the prosecution was being put to strict proof of the offence. It was, of course, open to the prosecution to seek to prove the elements of the offence against the Defendant utilising the evidentiary provisions contained in road transport legislation which were intended to facilitate the proof of formal matters, including the authority of a police officer to perform a particular function under statute. The declared intention of counsel for the Defendant to put the prosecution to strict proof did not, in some way, require the prosecution to establish these formal matters, irrespective of these statutory certificate provisions.

40 Woolworths acknowledged in the hearing below that it had no evidence to support its submissions that the certificates relied on were invalid, only making reference to documents relied on in other proceedings, which were not in evidence and were submitted for the defendant to be irrelevant to the question of authority in this case. Even those documents were not tendered. 41 Woolworths' case on jurisdiction thus failed and the subpoena was later set aside, his Honour finding that Woolworths had not demonstrated a legitimate forensic purpose for the issuing of the subpoena. The documents later provided confirmed that the certificate had been validly issued. 42 The duty of disclosure could not apply to the documents of authorisation, because they confirmed the certificates and thus could not have been relevant to an issue in the proceedings, because they could not have assisted the defence case. That was later confirmed when the documents were not used by Woolworths, once they had been supplied. In R v H; R v C [2004] UKHL 3; (2004) 1 ALL ER 1269 at [35], it was stated:

[35] If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in truly borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged (see [2003] 1 WLR 3006 at [31] and 33), be very exceptional indeed.

43 The Court would not, in any event, have had power to order disclosure on the grounds of prosecutorial disclosure. In R v Petroulias (No 22) [2007] NSWSC 692 at [64]:

64 The duty of disclosure operates so that the CDPP ought disclose to the defence all documents to which the duty attaches, irrespective of whether client legal privilege applies to the relevant documents. However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP's discharge of his duty during the course of the trial: Mallard v The Queen at 155-156 [81]-[84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. Apart from this question of principle, at a practical level, the CDPP and his officers, no doubt advised by prosecuting counsel, will be in a far better position than a trial judge to form a view as to whether documents ought be disclosed in the discharge of this duty. The trial judge will not usually be aware of the course of prior disclosure, the range of statements taken from Crown witnesses and the variety of other issues and factors bearing upon the duty of disclosure, especially in the context of a complex fraud case with a long litigious history, such as the present case. Even given the advantages which I have as the trial judge engaged in a range of interlocutory applications and trials since July 2006, I am not in a position to review, in some way, the Crown's discharge of its duty of disclosure.

44 The Criminal Procedure Act 1986 only required service of written statements of witnesses whom the defendant proposed to call to give evidence and copies of documents intended as an exhibit. 45 As to the subpoena power, that was only relevant, in so far as this Court was of the view that the Local Court had erred, as a matter of law, in setting aside the subpoena. Below, his Honour had applied Attorney General (NSW) v Chidgey [2008] NSWCCA 65 and R v Saleam (1999) NSWCCA 86; (1997) 96 A Crim R 421 at [11]. The tests were: 11 The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was. 46 There was no error of law, in the circumstances. Woolworths had the onus of demonstrating that 'it was on the cards' that the subpoenaed material would assist its case. It had not met that onus. 47 The order which should be made was an order against Woolworths because it had acted unreasonably, in refusing the defendant's offer on costs. Indeed, it would be appropriate to make such an order on an indemnity basis.

Consideration 48 The effect of Rule 42.19 is that unless the Court orders otherwise, the plaintiff must bear the defendant's costs if the proceedings are discontinued. The onus falls on the plaintiff to show that there should be a departure from the ordinary position. The reason for the discontinuation is a relevant, but not determinative matter. Where the discontinuance follows a plaintiff achieving practical success in the proceedings, that outcome may properly result in such a departure. 49 There is no question here that the plaintiff achieved practical success in the proceedings. The two single page authorities produced by the defendant, on which the certificates in issue rested, showed that there was no basis for the plaintiff further pursuing the jurisdictional argument. Had the documents been provided in the proceedings below, as they were in the Coles litigation, not only these proceedings, but the subpoena and its resistance, and part of the jurisdictional argument advanced below, would have been avoided. 50 The attitude taken by the defendant in relation to the production of the documents, rested in part on the argument put below that the certificates could not be challenged. In these proceedings, it was conceded that this was not the effect of s 61L. Plainly, that concession was properly made and helped explain the voluntary disclosure of the authorities, once these proceedings were commenced. 51 There is no question that it was known to the defendant that jurisdictional arguments similar to those taken in the Coles litigation would be taken in the Woolworths' prosecution. That is what the Crown Solicitor advised the Local Court in June. Presumably the prosecutor had provided the authority which underpinned the certificate in the Coles prosecution, because the view was there taken that it was relevant to the issue of the validity of the certificate in that case. Why a different view was taken in the Woolworths' prosecutions, was not apparent. How Woolworths came to be provided with the Coles authorisation was not clear. 52 The argument as to the validity of the certificates was not finally dealt with in the Coles litigation, because that prosecution was withdrawn in December, other difficulties with the certificate in that case having been identified by the prosecutor. Those difficulties apparently did not exist in relation to the certificates relied on in the Woolworths' prosecutions. 53 That the defendant was aware that Woolworths wrongly understood that the certificates relevant to its prosecution rested on the Coles authorisation, was also apparent on the face of the correspondence. The advice given by the defendant in December, that this understanding was wrong, could certainly have been expressed in less cryptic terms. Had it been clearly advised that there were other authorisations, in different terms, on which the certificates rested, the whole difficulty might have been avoided. Once the authorities were provided, the accuracy of the certificates was accepted. 54 Undoubtedly, the case put for Woolworths in the Local Court in relation to the subpoena, and for that matter, the jurisdictional argument, would have been strengthened, had any evidence been put forward to show that the authority on which the prosecution was understood to have rested, cast doubt on the accuracy of the certificates on which the defendant relied. That could easily have been done, by an affidavit being sworn, explaining how that understanding had been reached and annexing a copy of the document. 55 Had that occurred, it is difficult to see that it would not have been open to conclude that it was 'on the cards', that the production of that authority and any other upon which the certificates were said by the prosecutor to rest, might have assisted Woolworths' case. The defendant would have had difficulty, in those circumstances, it seems to me, in simply asserting from the bar table that the certificates rested on other authorities, which it declined to produce. As his Honour observed, however, no evidence was led to support Woolworths' case. Unsurprisingly, in those circumstances, Woolworths' case failed. 56 Woolworths now argues, however, that it ought never to have been put to the trouble of issuing a subpoena. The prosecutor had an obligation to disclose the underpinning authorities, once it understood that the question of the authority to prosecute was in issue. Woolworths had no obligation to establish any forensic purpose in the production of the authorities. 57 As I have observed, the defendant certainly understood in June that authority to prosecute was in issue. That was confirmed on 1 December, when the defendant was asked to provide the authorities at the jurisdictional hearing. There was no suggestion that there was any practical difficulty in doing so. The prosecutor's resistance appeared to rest on an understanding of s 61L, which was acknowledged in these proceedings to be wrong. 58 Did the defendant have an obligation to produce the authorities? It was common ground that the defendant's obligation was that discussed in R v Livingstone [2004] NSWCCA 407; 150 A Crim R 117, where Simpson J observed at [44]: 44 The extent of the prosecution's undoubted duty of disclosure has become something of a recurring theme in recent times: see, for example, Grey v The Queen [2001] HCA 65; 75 ALJR 1708; R v Reardon [2004] NSWCCA 32, unreported, 20 February 2004. In the last-mentioned case, I specifically agreed that a test, originally derived from a 1993 UK decision in a matter identified as Melvin and Dingle (20 December 1993) and adopted by the English Court of Appeal in R v Keane [1994] 2 All ER 478, ought also to be adopted by this Court. That test is in the following terms: "I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)." 59 What was at issue was whether the authorities fell into any such category. Given that the authorities were relevant to the question of the prosecutor's authority to prosecute, there can be no question that they fell within (1), that being known to be in issue between the parties. 60 What authorities underpinned the certificates and whether they supported what the certificates contained, was known only to the prosecutor. As a matter of fact, the authorities did not support Woolworths' challenge to the prosecutor's authority to prosecute, but that was not, and could not have been known to it or its legal advisers, who were acting on a misapprehension. When that misapprehension became apparent, in my view, the defendant was obliged to disclose the documents. There is no question that there was then an issue between the parties as to the authority to prosecute, even if the basis for it arising had no foundation. Provision of the documents would have resolved the issue. That cannot be a basis for a refusal to provide the documents. Nor can a concern that provision of the authorities might have led Woolworths to other reasons upon which the certificates might have been challenged. 61 This was not a situation such as that considered in R v H at [35], where the defence was making general and unspecific allegations and seeking far reaching disclosure, in the hope that something might turn up. Nor was it a situation such as that dealt with in DPP v Zhang, where a defendant was seeking to put the defendant to 'strict proof', of formal matters. Instead, there was a known issue lying between the parties as to the prosecutor's authority to bring the proceedings. The defendant had the documents which were relevant to a determination of that issue in its possession; it could easily have provided the documents and should, undoubtedly, have done so. 62 The failure to disclose would have been resolved, had an objection not then been taken to access to the documents being granted, when they were produced to the Local Court in response to the subpoena. Why that objection was maintained was difficult to see, but the reasonableness of the defendant's attitude was not the issue to be decided in determining whether access was to be granted. Nor did that question turn on whether the prosecutor had satisfied the obligations of disclosure. Any failure in that obligation, might, in a proper case, lead to a conviction being set aside, but was not open to review during the course of the trial. (See Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [81] - 84]). 63 Thus it was that what was advanced for Woolworths in relation to the subpoena which led, understandably, it seems to me, to its case failing. In these proceedings, had they not been resolved, Woolworths would have had to establish that his Honour erred on a question of law, in coming to the conclusions which he reached in relation to the subpoena. That was not established on the argument advanced by Woolworths. His Honour was not concerned with the question of whether the defendant had a prosecutorial obligation to disclose the documents, but rather with whether Woolworths had established that it should be given access to the documents. His Honour was bound to apply the approach adopted in the relevant authorities such as Chidgey and Saleam. Thereby Woolworths had to establish a legitimate forensic purpose for the access which it sought and that it was 'on the cards' that the documents would materially assist its case. 64 It is difficult to see that there was an error of law in the approach adopted by his Honour to the resolution of that issue. He could find no direct link between the documents to which access was sought and the material referred to in Woolworths' submissions, which concerned authorisations in other proceedings. Nor could he find it established to be 'on the cards', that the documents would assist Woolworths' case and so access was denied. 65 That view, it seems to me, was open on the case advanced below. That the defendant ought to have earlier provided the documents, as it did in the Coles prosecution, cannot show any error of law on his Honour's part in refusing to grant access to the documents sought on subpoena. 66 Undoubtedly, Woolworths later achieved practical success in these proceedings, when the documents were provided. That was a proper, if belated acceptance, it seems to me, that the documents should have been provided, albeit not a concession that the decision appealed against was wrong. Were practical success all that was to be considered, a costs order in favour of Woolworths would fairly follow. There are, however, other matters which must be considered. That Woolworths is unlikely to have succeeded in the appeal, is one. That the defendant's conduct, so far as these proceedings are concerned, may not be criticised is another. They are both reasons for refusing the course urged for Woolworths. (See Newcastle Wallsend Coal Co Pty Ltd at [23].) 67 For its part, the defendant also relied upon the refusal of its offer as to costs. The defendant had offered that each party bear its own costs. The usual order, if proceedings resolve without a hearing, is that the plaintiff bears the defendant's costs. Given the terms of the offer which was refused and the conclusions which I have reached on the question of whether Woolworths could have established an error of law, in the decision below, it seems to me that the offer was one which Woolworths ought to have accepted, notwithstanding the practical success it had achieved. Its refusal, together with the other matters I have mentioned, makes it inappropriate for there to be any departure from the usual order, that the plaintiff bear the defendant's costs. 68 I am not convinced, however, that the refusal of the offer may fairly result in an indemnity costs order in favour of the defendant, as it urged. Practical success in the proceedings is a basis for departure from the usual costs order, in circumstances such as this. I have concluded that a costs order may not be made in favour of Woolworths, in the circumstances, but its success may not be overlooked, in considering the defendant's argument that there should be an indemnity costs order in its favour. The parties' conduct in the proceedings must be considered. 69 For its part, the defendant accepted that all of the circumstances in which these proceedings came before the Court, were relevant to a consideration of whether there should be any departure from the usual order in its favour, but argued that the reasonableness of its conduct in the Local Court proceedings, could not be determinative of the question of the costs of these proceedings. 70 In my view, in considering whether an indemnity costs order should be made in favour of the defendant, some attention must be paid to what brought the parties here and the fact that the pursuit of a costs order in its favour and the rejection of the defendant's offer, flowed from Woolworths' practical success, once the documents in issue were provided. Undoubtedly, the defendant was the author of what was ultimately an unnecessary and costly exercise, which flowed from its refusal to provide the underlying authorisations, until these proceedings were commenced. That, it seems, flowed in part from an approach adopted to the interpretation of s 61L, resiled from in these proceedings. The defendant adopted an entirely different course in the Woolworths' prosecutions, to that adopted in the Coles prosecution, even in the face of a known misunderstanding about the authority underpinning the certificates on which it relied in the Woolworths prosecutions. That misunderstanding was entirely within its hands to resolve both quickly and cheaply. When the documents were provided in these proceedings, as they ought to have been, given what was in issue between the parties, namely the issue in relation to the authority to prosecute that issue, was resolved. 71 In all of those circumstances, I take the view that justice requires that there be no indemnity costs order made in favour of the defendant, notwithstanding the refusal of the defendant's offer. The fundamental principal underpinning costs orders is one of fairness, 'having regard to what the court considers to be the responsibility of each party for the incurring of the costs' (see Commonwealth v Gretton [2008] NSWCA 117 at [121]). In this case, there can be no question that the defendant had a large measure of responsibility for the costs incurred in bringing these proceedings. 72 The refusal of a costs order in favour of the plaintiff, notwithstanding its practical success and a refusal of an indemnity costs order in favour of the plaintiff, notwithstanding the refusal of the offer it made as to costs, in my view achieves a just balance between the parties' respective positions, so far as the costs of these proceedings are concerned.

Orders 73 For the reasons given, I order that the plaintiff bear the defendant's costs of the proceedings, as agreed or assessed. **********

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.