WorkCover Authority of New South Wales (Inspector Keenan) v Lucon

Ridge Consolidated Propriety Limited v WorkCover Authority of New South Wales (Inspector Maugher) (2000) 100 IR 156 CASES CITED : WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 232

HEARING DATES: DATE OF JUDGMENT: 05/09/2003

PROSECUTOR: Mr P M Skinner of counsel WorkCover Authority of New South Wales (Ms R Parmegiani)

DEFENDANTS: Leighton Contractors LEGAL REPRESENTATIVES: Mr A R Moses of counsel Solicitors: Corrs Chambers Westgarth (Mr J Whitaker)

Lurgi (Australia) Pty Limited Solicitors: Mallesons Stephen Jaques (Mr A G Gooch and Mr A Gray)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Staunton J

Matter Nos IRC 230, 231, 237 and 238 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KEENAN) v LUCON (AUSTRALIA) PTY LIMITED AND LURGI (AUSTRALIA) PTY LIMITED Prosecutions under ss 17(1), 17(1)(B) and 49(4) of the Occupational Health and Safety Act 1983

Matter Nos IRC 232, 233, 234, 235 and 236 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LTD Prosecutions under ss 15(1), 16(1) and 49(4) of the Occupational Health and Safety Act 1983

Matter No IRC 5148 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KEENAN) v LUCON (AUSTRALIA) PTY LIMITED, LEIGHTON CONTRACTORS PTY LIMITED AND LURGI (AUSTRALIA) PTY LIMITED Reference to the Full Bench of the Industrial Relations Commission in Court Session of questions pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE(1) of the Criminal Appeal Act 1912 in Matter Nos 230 to 238 of 2000

JUDGMENT OF THE COURT [2003] NSWIRComm 40

1 On 19 April 2002 a Full Bench gave judgment in Matter No IRC 5148 of 2000: WorkCover Authority of New South Wales (Inspector Kennan) v Lucon (Australia) Pty Limited (2002) 112 IR 332. In doing so, the Court made the following orders:

2. The proceedings are remitted to Walton J, Vice-President, to be dealt with in accordance with these reasons and the answers provided to the questions referred and to consider whether orders should be made in these proceedings pursuant to s 168 of the Industrial Relations Act 1996 and s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967.

3. The defendants shall pay the prosecutor's costs of the reference.

2 For the purposes of this judgment we shall refer to the defendants as Leighton and the Lurgi defendants respectively. As well, we shall refer to the proceedings in Matter No IRC 5148 of 2000 as the reference matter.

3 Following the making of the order in the reference matter that the defendants pay the prosecutor's costs of the reference, the Lurgi defendants raised certain objections on the basis that such order had been made without providing the defendants an opportunity to be heard on the question of costs. They requested an opportunity to be heard on that issue and the matter was accordingly listed for directions. Subsequently, at the directions hearing it was determined that the parties should make written submissions for the Full Bench to further consider the question of costs. Leighton did not seek to make submissions on the question of the costs order made in the reference matter. Their submissions went to the issue of the motion and the costs associated with that matter.

4 Since the judgment of the Full Bench in the reference matter was handed down, a member of the Full Bench, Hungerford J, has retired. The Full Bench of the Court has therefore been reconstituted.

5 Before dealing with the issue of costs in the reference matter, it is necessary to put that matter, as well as Matter Nos IRC 230 to 238 of 2000, into context, given the interrelationship between these matters and the reference.

6 The reference matter had its beginnings in the prosecutions brought by WorkCover against the defendants. They were prosecutions alleging breaches of ss 15, 16 and 17 of the Occupational Health and Safety Act 1983. The offences alleged in respect of the Leighton defendants were embodied within Matter Nos IRC 232 to 236 of 2000 and, in respect of the Lurgi defendants, in Matter Nos IRC 230, 231, 237 and 238 of 2000. The matters were originally listed to be dealt with before Walton J, Vice-President in 2000.

7 When the matters came before the Vice-President, the defendants filed notices of motion seeking to have the summonses against them struck out or permanently stayed (Leighton) or dismissed (Lurgi). At the hearing on the notices of motion, all parties submitted that questions arising from the motions be referred to a Full Bench of the Court Session for its consideration. Accordingly, his Honour referred four of the five questions proposed by the parties to the Full Bench pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912.

8 The questions referred were dealt with in the judgment of the Full Bench in the reference matter. The terms of questions referred and of the answers given to those questions are also set out in the judgment.

9 As ordered by the Full Bench, the proceedings were remitted to the Vice-President to be dealt with and for directions and consideration as to their future progress. As a consequence, Matter No IRC 5148 of 2000 as well as the originating summonses and the associated notices of motion have been before the Vice-President on a number of occasions since the Full Bench decision.

10 As a result of those directions hearings before his Honour, general agreement was reached between the parties as to the procedure to be adopted to deal effectively with all outstanding issues in these proceedings to date, including the disposition of the notices of motion giving rise to the reference matter and costs in those proceedings as well as in the Full Bench reference matter. The general procedural agreement is evident in the transcript of proceedings before the Vice-President on 21 August 2002. The parties acquiesced in the following approach: 1. As the Full Bench is to consider the costs issue in respect to the reference and there are issues concerning costs of the motions in Matter Nos 230 to 238 of 2000, it seemed logical that the Full Bench consider the entirety of the matters on the question of costs and in doing so would deal with the disposition of the motions.

2. As Leighton had made submissions as to the disposition of the notice of motion, to the extent the Full Bench makes a decision relating to that disposition, those submissions were relied on. If the prosecution made any further submission on that issue Leighton reserved its right to reply. 3. Orders were also made for the exchange of written submissions by the parties. 11 Having noted the agreement of the parties set out above, we propose to deal with the disposition of the notices of motion and costs arising therein, as well as the costs of the reference.

12 The Lurgi defendants essentially submitted that: 4. [No] order for costs should have been made in respect of the reference. An order for costs in respect of a reference made under Section 5AE of the Criminal Appeal Act 1912 should only be made where there are "special reasons" for awarding costs - see the decision of the Court of Criminal Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [37] - [47] (" Taylor "). 5. In Taylor the court declined to make an order for costs on the basis that: "the Defendant had a cogent point, which was properly argued. There is no special reason for awarding costs in favour of the prosecuting authority in this case". 6. The Lurgi Defendants submit that a similar position applies in respect of the reference in these proceedings. The reference questions raised significant questions as to: (a) the validity of summonses issued by a Registrar of the Commission in light of section 168 of the Industrial Relations Act 1996 (NSW) ("IR Act") and section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) ("SJA"); and (b) the commencement of prosecutions pursuant to section 49(4) of the Occupational Health and Safety Act 1983 (NSW) ("OH&S Act"). The submissions put by the Lurgi Defendants were cogent and were made in respect of issues that had not (in most cases) been authoritatively determined. The cogency arguments in respect of the Rules of the Commission and the deficiencies in the process for commencing prosecutions under the OH&S Act (raised as part of question 1 of the reference) was recognised by the introduction of Part 27A to the Industrial Relations Commission Rules .

13 The amended notice of motion filed by the Lurgi defendants in Matter No IRC 230 of 2000 which, in part, precipitated the reference sought that: A. 1. The Respondent's Summons herein be dismissed. 2. The Respondent pay the Applicant's cost on an indemnity basis. B. Grounds and reasons: 1. The Respondent's Summons is statute barred; 2. Further, and/or in the alternative, the Respondent's Summons is a nullity and one which should never have been issued, as the application for the issue of the Summons made to the Commission on 20 January 2000 disclosed no basis for it to be accepted; 3. Further, and or in the alternative, the Respondent's Summons is a nullity because the Summons was not issued by a Judge as required by section 168 of the Industrial Relations Act and section 4 of the Supreme Court (Summary Jurisdiction) Act 1967; and 4. Alternatively, the Summons was not signed by the Registrar or on his behalf and is therefore a nullity.

14 Central to the Lurgi defendants' argument before the Full Bench in the reference matter was the ultimate validity of the summonses such that they be dismissed. In particular, the Lurgi defendants emphasised the finding of the Full Bench in para [53] of its judgment which relevantly reads as follows: We therefore accept the defendants' submission that a person may only be required to appear before the Commission in Court Session to answer a charge under the Occupational Health and Safety Act by an order made by a Judge in accordance with s 4(1) of the Summary Jurisdiction Act . The purported summonses issued by the Registrar in the present matters, therefore, did not have the legal effect of requiring the defendants to appear before the Court. The Lurgi defendants' submissions also refer to paras [115], [118] and [125] of the Full Bench judgment in support of their submissions on this issue.

15 This approach, we consider, does not place the paragraphs relied upon in the complete context of the whole of the judgment and the ultimate conclusions of the Full Bench. In other words, notwithstanding that the summonses did not have the legal effect of requiring the defendants to appear before the Court, that did not mean that the proceedings were not validly commenced. The conclusion and reasons for it are set out in detail in paras [116] to [125] inclusive of the reference judgment.

16 We agree with the prosecutor that the ultimate outcome sought and the general thrust of the defendants' submissions in the original notice of motion and questions raised on the reference is as expressed in paras [16] and [17] of the prosecutor's submissions as follows: 16. [T]he question of the validity of the summonses per se issued by the Registrar was a peripheral issue to the cases each party advanced to the Court on the reference … The defendants pressed the invalidity of the application commencing the proceedings and hence the proceedings themselves … and the inapplicability of the statutory remedial provisions … 17. On these central arguments the defendants wholly failed.

17 For reasons already elaborated in the judgment of the Full Bench, as well as our observations herein, we are not prepared to alter the original order in this matter on the question of costs of the reference, that is, that the defendants shall pay the prosecutor's costs of the reference. The legal basis for such orders is that costs in relation to appeals and references under s 196 are not dealt with under the Criminal Appeal Act but, because of the terms of s 196(4), are dealt with in accordance with the normal costs provisions applicable to this Court under, for example, s 181 of the Industrial Relations Act.

18 We also emphasise the observations in para [7] of the reference judgment as follows: We consider that the questions were appropriately referred to the Full Bench under s 196(1) of the Industrial Relations Act and s 5AE of the Criminal Appeal Act . Section 196(1) cannot sensibly be construed as excluding appeals and references which challenge the validity of the initiating process of criminal proceedings before the Commission in Court Session.

19 Accordingly, since the Full Bench decided the issues argued by the defendants, to the extent they needed to be determined, against the primary thrust of their submissions, costs should follow the event. To the extent that "special reasons" may be necessary for the award of costs (Taylor v Environment Protection Authority (2000) 50 NSWLR 48) we refer to what is said subsequently in these reasons at paras [23] and [24]. Reference is there made to the significance of the earlier judgment in Ridge for the decision in the reference proceedings and also to the particular basis on which leave to re-argue Ridge was granted. The costs awarded should be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares.

Disposition of the notices of motion and costs of the motions

20 On this matter submissions have been received from all parties. In the reference matter, the defendants' primary argument was encapsulated at para [47] of the judgment in this way: The defendants' central argument in these proceedings is that the procedure in s 4(1) of the Summary Jurisdiction Act , applied by s 168 of the Industrial Relations Act , is the only legal procedure for requiring persons to appear before the Court to answer the offences charged. The defendants argue this proposition has these consequences: (1) the Registrar has no power to summons persons to appear in Court to answer charges; the purported summonses issued by the Registrar were, therefore, of no legal effect; and (2) an application under r 219(1) must be made to a judge. Since the applications in these matters were made to the Registrar they were invalid.

21 As well, the argument raised by the defendants was a challenge to the principle or approach that had already been decided by the Full Bench of this Court in Ridge Consolidated Propriety Limited v WorkCover Authority of New South Wales (Inspector Maugher) (2000) 100 IR 156. On that issue, we refer in the first instance to the judgment in the reference matter particularly at paras [37] and [38] - the latter incorporating relevant conclusions from the Full Bench judgment in Ridge Consolidated - specifically paras [27] to [33] of that judgment. We repeat para [33] of Ridge by way of emphasis in this matter: We consider that the same distinction is relevant in relation to the present statutory and regulatory scheme. Once the relevant requirements under Rule 219(1) have been complied with, the proceedings have been properly and validly instituted and any subsequent non-compliance with the requirements are, at most, irregularities which either may not be relevant or are capable of being cured . (emphasis added)

22 The findings in the reference matter relevant to the motions at paras [116], [117] and [118] have already been referred to at para [15] above. Those findings go to the core of the defendant's submissions in the notices of motion. As such, the Court found against them. The motions have no further utility. Accordingly, the notices of motion should be dismissed.

23 On the question of costs of the motions we consider that the defendants should pay the prosecutor's costs. We say that for the same reasons that we would dismiss the motions. That is, that the substantive issues sought to be canvassed by the defendants in the notices of motion and the subsequent reference were directed to arguing the validity of the initiating process such that the summonses should be dismissed, struck out or permanently stayed. On those issues the Court has found against the defendants and in doing so has affirmed the conclusions in Ridge. We do not accept the thrust of the defendants' submissions that the matters raised and the questions posed arising from the notices of motion raised novel questions or matters of significant importance that had not already been decisively determined such as to warrant consideration by a Full Bench and that they therefore should not be liable for the relevant costs.

24 Although a reference was appropriate it is going too far, as seems to be implied in the defendants' submissions, to say that there were major public interest considerations in seeking the reference. The points raised are to be considered to have been raised essentially to assist, or to vindicate, the defendants' forensic situation in the litigation in circumstances where a single judge would have been bound to follow and apply the decision of the Full Bench in Ridge. Indeed, the defendants relied on the last consideration as a significant factor in their application for the reference. There is no basis for departure from the usual approach to costs. As the Full Bench said in the reference judgment at 346: [45] It is the practice of the Full Bench of this Court and of it predecessors to require parties to seek leave to re-argue the correctness of previous judgments at the Full Bench level: Lynch v GC Schmidt Pty Ltd [(1995) 59 IR 205] (at 208 - 209); Oswald v NSW Police Service (1999) 90 IR 42 at 43; cf Clutha Developments Pty Ltd v Barry [(1989) 18 NSWLR 86] (at 99 - 100). The significance of the issues in this matter do not, of themselves, in our view warrant the grant of leave to re-argue the correctness of a recently delivered judgment. However, we have decided to grant leave in this matter because not all of the issues arising here were determined finally in Ridge . Although not all of the issues were determined finally in Ridge , the Full Bench judgment in the present proceedings largely involved an application of the earlier Full Bench judgment in Ridge , with the approach therein being taken to its logical conclusion.

25 We therefore order that the defendants pay the prosecutor's costs of the motions. In accordance with our decision on the costs of the reference, such costs should also be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares. 26 In Matter Nos IRC 230 to 238 of 2000 we make the following orders: 1. the notices of motion are dismissed; 2. the defendants are to pay the prosecutor's costs of the motions to be assessed in the absence of agreement; such costs should also be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares.

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