WorkCover Authority of New South Wales (Inspector Carmody) v Develco Project Pty Ltd

PROSECUTOR Mr W G Roser of counsel Solicitor: Ms M Lagana WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr P M Hall QC and Mr A B Gotting of counsel Solicitor: Mr D Cross Allen Allen & Hemsley

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Friday, 11 May 2001 Matter No IRC 2636 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MARTIN CARMODY) v DEVELCO PROJECT PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 97 1 The application before me by the defendant, Develco Project Pty Limited, is that I disqualify myself from the further hearing of this matter on the ground of reasonable apprehension of pre-judgment. I propose to accede to the application, albeit with extreme reluctance and not without some hesitation, and will state as succinctly as I can my reasons for so deciding. 2 The substantive matter before the Court is a prosecution filed on 28 May 1999 by Martin Carmody, as an inspector of the WorkCover Authority of New South Wales, of the defendant for a breach of s 16(1) of the Occupational Health and Safety Act 1983 in that between 16 June 1997 and 15 December 1997 it failed to make arrangements for ensuring safety and absence of risks to health in connection with excavation work carried out adjacent to a free-standing brick wall on a construction site at Kent Road, Mascot; as a result of the said failure, two persons not in the defendant's employment sustained fatal injuries when the wall collapsed onto them on 15 December 1997. 3 The defendant was the developer of the site for the construction of a purpose-built development being an office/factory complex. It engaged Consolidated Constructions Pty Limited as the principal contractor for the construction work who in turn sub-contracted the excavation works to Byrne Civil Engineering Constructions Pty Limited. The defendant pleaded not guilty to the charge and it was scheduled to proceed before me as a defended hearing commencing on 9 October 2000. However, on the matter being called that day, the prosecutor offered no evidence and accepted the appropriate course as being the dismissal of the charge; the defendant then made an application for costs which was opposed by the prosecutor. It is as to the question of costs that the present application for disqualification relates. 4 It is necessary so as to properly understand the basis for the disqualification application to trace how this matter developed. Similar prosecutions were instituted against both Consolidated Constructions and Byrne Civil Engineering Constructions relating to the subject incident at Kent Road, Mascot on 15 December 1997 when the brick wall collapsed. Originally, in all three prosecutions the respective defendants pleaded not guilty and, by agreement of the parties, they were scheduled to proceed as a joint defended hearing to commence on 9 October 2000 for a period of 21 days. As I have said, on 9 October 2000 the prosecutor withdrew the charge against the present defendant. As to Consolidated Constructions, a plea of guilty was entered and the issue of penalty was heard on 10 May 2001 to be continued on 13 June 2001. As to Byrne Civil Engineering Constructions, it continued its plea of not guilty and, after a hearing on 9, 16-19 October 2000, on 9 March 2001 I found the offence proven; on 7 May 2001 I heard submissions on penalty and the decision was reserved. 5 As it happened, on 9 March 2001, after publishing judgment in Byrne Civil Engineering Constructions ([2001] NSWIRComm 33), I heard the costs application by the present defendant and reserved, subject to leave to the parties to file further written submissions within 14 days. The opportunity for those further submissions was sought by counsel for the defendant, Mr A B Gotting, as he said, "given the reasons for judgment handed down this morning in the matter of Byrne Civil Engineering … , particularly the distinction between the immediate cause and the effective cause (of the collapse of the brick wall)". 6 In earlier written submissions by Mr P M Hall QC and Mr Gotting for the defendant, in support of its costs application, the precise basis for such relief was stated as : (i) the existence from the outset of a fundamental flaw in the case brought by the Prosecutor, namely, the non-application of the provisions of s 16 to the defendant and the absence (on Mr Leavy's report) of the requisite causal nexus;

(ii) the existence of the flaw in the case was readily ascertainable and should, in the course of prosecutorial decision-making, have been checked and if necessary cross-checked, both in the public interest and as a matter of fairness to the defendant;

(iii) the attempts that were made on behalf of the defendant to have the Prosecutor revisit and reconsider the prosecution and the grounds upon which it had been brought; and

(iv) the failure by the Prosecutor to identify the matters that led to him not offering any evidence until immediately prior to the hearing. 7 The written submissions, which were amplified by Mr Gotting during the hearing, identified two essential elements to establish the s 16(1) offence and which were said to be absent so as to support a costs order in favour of the defendant on the charge not being continued by the prosecutor: first, that the defendant was not an "employer"; and, second, the causation question which concerned the report by Daniel Joseph Leavy, a senior professional engineer with the WorkCover Authority's construction industry team. It was that second element, having in mind that Mr Leavy's report was relied upon by the prosecutor in Byrne Civil Engineering Constructions, that the potential for pre-judgment arose. 8 In the judgment in Byrne Civil Engineering Constructions (from [13] to [22]), I dealt in detail with Mr Leavy's report, including a supplementary statement made by him, and his oral evidence as to the causes of the collapse of the brick wall. The report covered in that respect the conduct of the defendant, van der Meer Bonser Pty Limited (the design engineer for the project), Consolidated Contractions and Byrne Civil Engineering Constructions. In relation to Mr Leavy's evidence, I concluded (in [22]) : As a general proposition, I found Mr Leavy's evidence to be credible. It was clearly and forcefully presented and in a manner consistent with the supporting technical details referred to by him. Of importance to me, he outlined an objective analysis of the history and condition of the site, the free-standing brick wall's foundations and construction, modifications made to the wall, excavations near the wall, digging at the footings of the wall, work done on the adjacent driveway (including the saw cuts), on-site activities and mechanisms of the failure of walls by reference to the brick wall here concerned; his conclusions were cogent. In particular, his comment that a visit to the site would have raised his concern about the brick wall because, as he said, "one of the fundamental rules of engineering is beware of freestanding structures", I found to be quite telling and meaningful in my consideration of the task in determining the liability of the defendant for the present offence. I accept his evidence. 9 The defendant's submission here made it plain that it challenged Mr Leavy's final report and, hence, and necessarily, the findings made by me in Byrne Civil Engineering Constructions. It is to be noted, however, that the contest arose not in relation to Mr Leavy's initial report but in the supplementary statement made by him on or about 14 September 2000 which apparently qualified the opinion first expressed by him in relation to the cause of the collapse of the brick wall by reference to its then condition as it might involve the defendant but about which there was no issue in Byrne Civil Engineering Constructions. In moving the disqualification application, Mr Hall made clear that insofar as the defendant was concerned the difficulty did not relate to Mr Leavy's first report but to his supplementary statement which, relevantly for the costs application, raised the question whether "the prosecution ever had evidence against the defendant which would have established necessarily to the required standard of causation or not". 10 In the written submission later filed for the defendant on the disqualification aspect, it was stated : 14. The issue as to how, why, in what circumstances and upon what basis Mr Leavy altered his opinion in the way earlier referred to a few weeks prior to the scheduled hearing, against a background when it had been pointed out by the defendant's solicitors that there were problems on causation, raises directly the question which the Commission, it is submitted would need to be satisfied about: was the revision of his opinion made in circumstances where the Commission could be satisfied for itself that the "supplementary statement" was made in fact upon a reliable and sound basis? The Commission would necessarily be concerned and entitled to know whether or not the underlying validity and integrity of his first report was legitimately altered so as to strengthen the case against the defendant in particular.

15. In Byrne Civil Engineering Constructions , there was, of course, no issue about the supplementary statement nor, having regard to the interests of Byrne Civil Engineering Constructions in that case would it be likely to see any challenge being made to it. In those circumstances the Commission was required to evaluate and rely upon Mr Leavy's work and so assess his position as a witness in terms of both reliability and accuracy. It was therefore, in those circumstances, that the Commission, with respect, quite properly identified matters upon which it would accept Mr Leavy for there was no reason presented in that case which would tell against accepting what he had to say in the circumstances in which the Commission was then concerned with the issues touching or concerning Byrne Civil Engineering . Therefore the Commission, in paragraph 22 stated that as a general proposition the Commission found Mr Leavy's evidence to be credible. Further in paragraph 19, based upon what he had said, the Commission adverted to the fact that Mr Leavy had identified contributing causes by persons other than the defendant in that case. Even more importantly the Commission in paragraph 51, picking up on the "supplementary statement" adverted to the fact that the earlier work had given rise to a causal chain of events with fatalities that occurred later in the year in December 1997. In particular the Commission there stated: "The excavation work actually performed along the wall exacerbated its already unstable condition". That conclusion, quite obviously, was relying upon the accuracy and validity of what has been referred in these submissions to the "supplementary statement" of Mr Leavy. 11 Senior counsel relied upon the decision of the Court of Appeal (Kirby P, Mahoney JA and Meagher JA, Gleeson CJ and Samuels JA dissenting) in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411 for the proposition : … that for the Commission now to deal with, an assessment as to whether or not the prosecution had evidence which would properly support a prosecution on causation would now be required to determine the very same issue that it has already determined adversely to the defendant in the Byrne Civil Engineering Constructions case for the finding in that respect stands as a critical finding in the judgment the Commission delivered in dealing with that prosecution. Senior counsel sought to distinguish in this respect the decision of the Court of Criminal Appeal (Hunt CJ at CL, Allen J and Badgery-Parker J) in R v Masters (1992) 26 NSWLR 450 on the basis that that case concerned an application for the revocation of bail and the judge concerned was said to have no function or role in terms of credit findings, findings of fact and ultimate conclusions concerning liability which were peculiarly and exclusively the prerogative and functions of the jury. 12 Mr W G Roser of counsel appeared for the prosecutor and opposed the disqualification application. Counsel relied upon the decision in R v Masters as stating the correct approach to apply in criminal matters and distinguished the decision in Australian National Industries v Spedley Securities as being applicable to the civil jurisdiction. Mr Roser submitted that "if the defendant's application was found to have substance it would cause a total disruption to criminal proceedings when those proceedings involved more than one defendant … would not only make the proceedings a mockery but also bring the whole judicial process into disrepute". Counsel emphasised that, as here, "judges determining criminal matters in all jurisdictions can and do determine issues of law and fact in the same proceedings". 13 The question of disqualification arises where the circumstances here involve an issue decided in a previous proceeding against a separate defendant but as concerning a factual finding made in that earlier proceeding adverse to the defendant in the present proceeding. The manner in which claims for disqualification of a trial judge on the ground of apprehended bias (or, more accurately for present purposes, pre-judgment) are to be considered, in my view, must be in light of the recent authorities and how they have been applied by judges in practice. I think I should so approach the present task in resolving the defendant's disqualification application; in doing so, however, I state at the outset that I see no reason to distinguish between civil and criminal cases as to the proper approach to follow. 14 Notwithstanding what may be thought to be the earlier and less stringent position, as stated in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at p 116, the later authorities accept the legal principle as being that stated by the unanimous decision of the High Court (Mason, Murphy, Brennan, Deane and Dawson JJ) in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at pp 293-294, as follows: It was common ground between the parties to the present appeal that the principle to be applied in a case such as the present is that laid down in the majority judgment in Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248 at pp 258-263. The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court (see, eg, Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at p 158; Reg v Shaw; Ex parte Shaw (1980) 55 ALJR 12 at pp 14, 16) and in the Supreme Court of New South Wales (see, eg, Barton v Walker [1979] 2 NSWLR 740 at pp 748-749). Although statements of the principle commonly speak of "suspicion of bias", we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning. (emphasis added) 15 The correctness of the principle so stated in Livesey v New South Wales Bar Association was accepted as correct by the High Court (Brennan, Gaudron and McHugh JJ) in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at pp 85-87. However, their Honours issued a caveat in applying the test by reference to the following observations by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at p 352 : It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at pp 553-554; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14; 32 ALR 47 at pp 50-51. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 16 It will be apparent that some tension arises in the statement of principle as between Livesey v New South Wales Bar Association and Re JRL; Ex parte CJL, as acknowledged in the later case of Re Polites; Ex parte Hoyts Corporation. The distinction was referred to by the Court of Criminal Appeal in R v Masters, in declining to accept the interpretation of apprehended bias as adopted by the Court of Appeal in Australian National Industries v Spedley Securities, in the following way (26 NSWLR at p 472) : In Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, the Court of Appeal held by a majority of three to two that a judge who had in one case determined an issue of fact and the credit of an important witness contrary to one party should disqualify himself from hearing a related case in which the same issue and the credit of the same witness would arise for determination. Kirby P (at 416) said that the possibility that a member of the public would apprehend that the judge had effectively pre-judged a number of issues central to the related proceedings was enough to require his disqualification in relation to those proceedings and to require them to be heard by a judge "who had reached no similar conclusions and had given voice to no like opinions about the credit of the main dramatis personae …". Mahoney JA (at 437) said that the requirement that the judge be impartial applied to both bias and pre-judgment in issues of fact and credibility. Meagher JA agreed with Mahoney JA. None of the three judges in the majority in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) referred to the distinction drawn by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342, which had been accepted by the High Court in its unanimous judgment in Re Polites; Ex parte Hoyts Corporation Pty Ltd . On the other hand, Samuels JA (with whose reasons Gleeson CJ agreed) based his dissent specifically upon that distinction. In the result, the Court of Criminal Appeal held (26 NSWLR at pp 472-473) that a judge would not be obliged to disqualify himself from continuing a criminal trial because on a voir dire "he had expressed views critical of the accused's credit and because it was likely that he may have to determine later in the case another issue involving the credit of the accused on either a further voir dire examination or when imposing sentence"; in distinguishing Australian National Industries v Spedley Securities, their Honours added (26 NSWLR at p 472) : It was concerned with the situation where the judge was to hear a different (albeit, related) action in which there arose the same issue of fact and the credit of the same witness which he had already decided against one party. That is not the present situation. Dunford DCJ heard the application to revoke the appellant's bail because he was the judge who was to hear the trial in which the appellant was involved. This was an appropriate pre-trial motion to be heard by the trial judge. 17 In the present case, Mr Hall relied on the views expressed in Australian National Industries v Spedley Securities whereas Mr Roser urged me to follow the reasoning in R v Masters in which it was concluded (26 NSWLR at p 473) that for the judge in the circumstances of that case to have disqualified himself "makes nonsense of the judicial system". Here, of course, in dealing with the present defendant's case as to costs I am concerned with a different, albeit related, matter in which the same issues of fact (as to causation of the collapse of the brick wall) and the credit of the same witness (Mr Leavy) were decided already by me in the judgment in Byrne Civil Engineering Constructions in a manner contrary to that argued by the defendant here. That is precisely, it seems to me, the context in which Australian National Industries v Spedley Securities was decided whereas R v Masters was considered in the circumstance of a pre-trial motion by the trial judge in the same proceeding. Therefore, I consider the reasoning in R v Masters to be relevantly distinguishable in a decisive respect. It is appropriate, in my view, to follow the reasoning of the majority in Australian National Industries v Spedley Securities as it was similarly concerned not with apprehended bias but rather pre-judgment and occurring not in the same but in related proceedings. 18 The extract I have cited above from R v Masters (26 NSWLR at p 472) summarises the essence of the approach to this question adopted by the three judges in the majority in Australian National Industries v Spedley Securities. In any event, and given my acceptance in Byrne Civil Engineering Constructions of the evidence and credibility of Mr Leavy, it would be difficult for a reasonable member of the public, using the words of Kirby P in Australian National Industries v Spedley Securities (26 NSWLR at p 416), adapted to the case before me, to see how the defendant "could possibly succeed in his defence on that point … unless (I) could be persuaded (contrary to (my) earlier strongly expressed findings) to change (my) opinion concerning (Mr Leavy's) credit and about the evidence earlier (accepted) by me". In such a situation, which I think to be the case here, Kirby P considered it enough for disqualification to occur. 19 The majority in Australian National Industries v Spedley Securities held that a judge should disqualify himself from hearing a related matter involving the same factual issues and the credit of the same witness on the ground of reasonable apprehension of possible bias by pre-judgment; their Honours concluded that a fair-minded observer would conclude that the judge had formed opinions which might affect his determination of outstanding matters. Mahoney JA, with whom Meagher JA agreed, expressly held that a previous decision of the same fact or upon the credibility of a relevant witness would create such an apprehension, normally, if not inevitably. 20 A review of the pre-judgment principle was undertaken by Mahoney JA in Australian National Industries v Spedley Securities (26 NSWLR at pp 437-442) and, in putting aside the issue of bias, his Honour emphasised that the real question was one of pre-judgment so that the appearance and apprehension in relation to impartiality, the basis of the decision in Livesey v New South Wales Bar Association, was the relevant approach to apply. For myself, that seems to me to be precisely the situation in the present case and, indeed, was the way in which Mr Hall put the point. I would respectfully adopt the observation of Mahoney JA (26 NSWLR at p 438) that "it is important to have in mind that what is in question in the present case is, and is only, the appearance and consequently the apprehension of impartiality". His Honour then dealt with what was required by the pre-judgment principle, as follows (26 NSWLR at p 438) : In my opinion, four things emerge from the decision in Livesey and the cases which have succeeded it: (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood, but according to possibility; (c) it is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person who does not know the facts; and (d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case. His Honour then dealt with each of those four matters by reference to the case there concerned and concluded (26 NSWLR at p 442) : … it is, in my opinion, proper to approach a question of this kind upon the basis that, where decisions of fact or credibility have been made, the pre-judgment principle will apply unless it appears that there is a "necessity" for the judge to sit or that the case is "an extraordinary case" or one which involves "special circumstances". 21 In the present case, I am not satisfied that it is extraordinary or as involving special circumstances which would sufficiently bring it within the exceptions to the pre-judgment principle. Indeed, I did not understand Mr Roser to suggest otherwise. 22 In agreeing with Mahoney JA in Australian National Industries v Spedley Securities, Meagher JA did so with "great reluctance" and, in a manner which I think apt in the circumstances of the case before me, explained his reluctance in the following way (26 NSWLR at pp 447-448) : From those facts it will be observed that nobody suggested the existence of actual bias in Cole J. From those facts it will also be observed that no reasonable man would apprehend any probable bias in his Honour. It is therefore unpalatable to find, as Mahoney JA does (and I respectfully think, correctly) that he should have disqualified himself. It is doubly unpalatable to do so when such a finding will undoubtedly cause a scandalous waste of judicial resources, as the Chief Justice points out. Nevertheless I am of the opinion that an adherence to the principles expressed by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288, compels such a result. In light of the circumstances of the present case and the way in which the difficulty of alleged pre-judgment arose, as detailed earlier in these reasons, I have to express sympathy with the following comments by Meagher JA in Australian National Industries v Spedley Securities (26 NSWLR at pp 448-449) : This principle ( Livesey v New South Wales Bar Association (1983) 151 CLR 288 at pp 293-294) has been analysed by Mahoney JA. The most significant difference is that the former (as in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at p 116) required at least a probability, and perhaps a high probability, of distrust to arise in the mind of a reasonable observer, whereas the latter requires nothing more than a mere possibility. To make things more difficult, the High Court, differently constituted, in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, seemed to treat the two cases as if there were no inconsistency between them and as if the test propounded in the earlier case was still good law. However, I should have thought it clear enough that if in Livesey's case itself the earlier law had been applied a different result would have ensued.

The novel doctrine for which Livesey's case is responsible is that where a judge determines either an issue or the credibility of a witness in one case and the same issue or the credibility of the same witness arises in a later case, he disqualifies himself from hearing that later case if a hypothetical observer might possibly suspect that he will be biased in embarking on the later case. It is a Spartan doctrine. It has been rendered increasingly so both by constant judicial narrowing of the scope of "necessity" as an exception to the rule, and by the developing law on the attributes of the hypothetical observer. The High Court has decided several times that the knowledge of the individual does not extend to the knowledge that a judge is capable of putting aside evidence heard and findings made in a previous case and deciding the case before him only on the evidence led in that case: Vakauta v Kelly (1989) 167 CLR 568 at 573 and 585, Livesey (at 298), Grassby v The Queen (1989) 168 CLR 1 at 21, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-88, and Re JRL; Ex parte CJL (1986) 161 CLR 342 at 357 and 370. With the greatest respect for the authorities which undoubtedly bind me, I should have thought than any reasonable observer who was acquainted with the idea of a judge at all would assume that a judge had precisely that capability, whatever other virtues or defects he might have.

The upshot is that, judged from this austere and unrealistic standpoint, Cole J should have disqualified himself and the appeal must be upheld. 23 I have to say that I find myself in the same position as Meagher JA identified Cole J found himself. The application that I disqualify myself on the ground of a reasonable apprehension of pre-judgment must, therefore, be upheld. 24 However, I cannot part with this matter without referring to the consequent and regrettable position in which the prosecutor, without any fault on his part, has been placed. As Mr Roser put in his written submissions : 10. No application was made from the 9 October 2000 until the 22 March 2001 although the defendant knew that your Honour would be considering and making factual findings in the cases of Byrnes Civil Engineering Construction Pty Ltd and Consolidated Constructions.

11. This is an application, it is submitted, that has been brought at the "eleventh hour" although the circumstances have not changed from when all the defendants were before your Honour on 9 October 2000.

12. Further, this application has only been made after full argument had been made on the cost application and after your Honour had reserved your determination of the matter.

13. Thus, it is submitted the application of the defendant that you disqualify yourself is totally without merit and has all the hallmarks of a "judge shopping" exercise by the defendant (see R v Perry (1993) 29 NSWLR 589). Even if all that were so, I must accept, on the authorities, the force of the following submission by Mr Hall : 21. In the defendants' respectful submission, the Commission having been required to deliver judgment as it did in Byrne Civil Engineering Constructions Pty Ltd , (on 9 March 2001) the issues that are fundamental on the causation point here were specifically and for the purposes of final judgment decided in that case. The evidence accepted for the purposes of so deciding required and involved a complete acceptance of Mr Leavy's evidence. The causation point was throughout the history of this matter, as the correspondence reveals, a highly contentious one. In those circumstances on a costs application such as this, although the Commission does not embark on a full trial of issues, it is required to make an assessment as to whether the prosecution had a proper evidentiary basis on the causation point upon which to bring and proceed with a prosecution. As the prosecution is relying on a contention that the prosecution was properly brought and founded on an evidentiary basis on causation it had the evidentiary onus in relation to the supplementary statement.

22. In the defendants' respectful submission it is appropriate in the very unusual and unique circumstances of this case for the member who presently constitutes the Commission to disqualify himself and thereby preserve and give effect to fair trial principles and avoid inconsistency in Commission judgments.

23. The transfer of the application to another judge to decide would essentially entail the passing over of the parties' affidavits and submissions for decision by another member of the Commission. 25 For the foregoing reasons, I formally disqualify myself from determining the defendant's costs application. Arrangements will be advised to the parties in due course for another judge to deal with this matter. ______________ 26

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