WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Limited

Industrial Relations Commission (NSW)|1994-05-13|Before: Schmidt J, Cole J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Limited [2003] NSWIRComm 110 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) PARTIES : DEFENDANT: TMG International Pty Limited FILE NUMBER: IRC 5461, 5462, 5463 of 1999 CORAM: Schmidt J CATCHWORDS : Costs - Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 - prosecution partially consents to costs order, but resists an order in relation to costs of defendant's motion - defendant seeks indemnity costs - refused - prosecutor ordered to bear costs as agreed or assessed by the Court Industrial Relations Act 1996 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Hairman v FileNET Corporation Pty Limited [2002] NSWIRComm 76 Knudsen v Kara Kar Holdings Pty Ltd and Ors (No 2) (2000) 52 NSWLR 254 Mansell v TMG International Pty Ltd [2002] NSWIRComm 112 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425 CASES CITED : NRMA Insurance Limited v FRL Coyle Pty Limited (NSWSC, 13 May 1994, Cole J, unreported) Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 WorkCover Authority of New South Wales (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited and Luis Bustamante [2003] NSWIRComm 35 WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 28 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited, Leighton Contractors Pty Limited and Lurgi (Australia) Pty Limited [2002] NSWIRComm 68 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 101 IR 271 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 108 IR 121 HEARING DATES: 04/02/2003 DATE OF JUDGMENT: 04/11/2003

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr JP Phillips of counsel SOLICITORS: Graham Molloy & Associates

JUDGMENT: - 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

1 This judgment deals with the question of costs. Judgment was given on 31 May 2001, dismissing each prosecution and a number of other prosecutions brought against the defendant under s17 of the Occupational Health and Safety Act 1983 ('the OHS Act'), as well as prosecutions brought against a number of other defendants, under both ss16 and 17 of the OHS Act. (See WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 108 IR 121.) The question of costs was reserved. That judgment followed an earlier judgment given on 29 August 2000 in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 101 IR 271.

2 Those judgments were the subject of an appeal. The appeals in these matters were, however, not pressed by the prosecution with the result that these prosecutions stand dismissed. The defendant now seeks an order of costs in its favour.

3 The position of the prosecutor was that it consented to an order for costs against it, consequent upon the bringing of the section 16 charges, except those costs relating to the defendant's motions, dealt with in the two judgments first mentioned. It was argued that no order as to costs should be made in favour of the defendants in relation to the motion, or in the alternative, that no order should be considered, until the outcome of the proceedings brought against the defendant under s17 of the Act, now before Haylen J, were known.

4 It is relevant to note that judgment on the appeal from the two judgments referred to at the outset, was given by the Full Court on 27 May 2002. (See Mansell v TMG International Pty Ltd [2002] NSWIRComm 112.) The appeal was upheld and the prosecutions in question remitted to Haylen J, for consideration as to whether orders should be issued under s4 of the Supreme Court (Summary Jurisdiction Act) 1967 ('the Summary Jurisdiction Act'). His Honour later issued those orders in the s17 prosecutions brought against the defendant and has listed for hearing the question of whether the proceedings were brought out of time, having regard to the provisions of s49 of the OHS Act.

5 That question had already been heard and determined in the earlier proceedings before me. The Full Court, however, took the view that consideration had been given prematurely to that question. It could not properly arise for determination, prior to the issuing of orders under s4 of the Summary Jurisdiction Act.

6 It is also relevant to note that other defendants in proceedings also dealt with in my original judgment, Ove Arup Consult Pty Limited, Arup Partner Pty Limited and Ove Arup Pty Limited, which found themselves in a similar position to the defendant in these proceedings, recently consented to costs orders being made in their favour, other than in relation to the motion they had brought, on a similar basis to that brought by the defendant in these proceedings. The costs in relation to that aspect have been stood over, pending determination of the s17 prosecutions against it before Haylen J. The defendant in these proceedings did not consent to such an approach, but pressed for a costs order in its favour.

7 Section 14 of the Summary Jurisdiction Act gives the Court a discretion to make an order as to costs which 'to the Judge seem just and reasonable'. Section 168(2) of the Industrial Relations Act 1996 ('the Act'), makes this provision relevant to these proceedings.

8 That question must be determined in light of the circumstances in which the motion was brought. These prosecutions concerned events in 1995. They were commenced in October 1999, by the filing of an application for summons brought by the prosecutor, Inspector Mansell, an inspector of the WorkCover Authority appointed under the OHS Act.

9 A summons was issued on 12 October 1999, requiring the defendant to appear before the Court to answer the charge specified. The summons warned that if the defendant did not appear at the time specified, 'a warrant may be issued for your arrest'. The defendant appeared before the Registrar in answer to the summons, on 25 November, 7 February and 6 March.

10 On 17 March 2000, the defendant filed a motion, seeking that the prosecution be dismissed, it having been commenced after the limitation period specified in s49(1) of the OHS Act. The motion was supported by an affidavit of Mark Charles Whowell, the defendant's solicitor, of the same date. It was there noted that (a) the defendant pleaded not guilty to all summonses; (b) its request for particulars remained unanswered by the prosecutor and (c); the prosecutions were brought out of time, having regard to what appeared on the face of the Coroner's report and the proceedings before the Coroner. Section 49 of the OHS Act provides: 49. Time for instituting proceedings for offences

(1) Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence.

(2) Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred, whichever provides the longer time for proceedings to be instituted.

(3) Proceedings for an offence against section 27 (Notification of accidents and other matters) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after the WorkCover Authority first becomes aware of the act or omission alleged to constitute the offence, whichever provides the longer time for proceedings to be instituted.

(4) If a Coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

11 The motion was dealt with in the first judgment, given in August 2000, together with the motions brought by other defendants, who had been charged with other offences said to have arisen in 1995 out of the matters dealt with by the Coroner. The motions had been later amended, to raise questions as to how the proceedings had been commenced, it being argued that the proceedings were a nullity.

12 The defendant's motion thus raised the proper construction of s49 of the OHS Act and the way in which the proceedings had been instituted, having regard to the relevant provisions of the Act, the Court's rules and the provision of the Summary Jurisdiction Act. The Full Court dealt with the latter questions in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. There it was decided that any failure to comply with the Court's Rules in initiating the prosecutions was an irregularity, which could be cured by order of the Court. It was not to make the proceedings a nullity. That judgment was given on 18 August 2000.

13 When the matter came on for hearing, the prosecutor had persisted in the refusal to provide the defendant with the particulars sought, in relation to s49 of the OHS Act. This was dealt with at para [57] to [61] of the first judgment. At [69], the view taken was that the question before the Court was whether orders should be made under s4 of the Summary Jurisdiction Act and that 'until satisfied that these prosecutions were brought within time, it is not appropriate for such orders to be made.' The prosector was ordered to provide the relevant particulars within 28 days, it having expressly sought that opportunity.

14 The judgment of 31 May recorded that at the further hearing on 23 and 24 April the defendant pursued its application that these prosecutions be dismissed. The judgment recorded that the arguments advanced went to: 'The arguments advanced for the various defendants fell into a number of broad categories. They went to the prosecutors' failure to provide the particulars within the time ordered; to the prosecutors' failure to comply with the requirements of the Rules when initiating the proceedings; the failure to call any evidence from either of the two prosecutors, as to what was in their minds when the prosecutions were launched; to alleged inadequacies of the particulars provided and the failure of the particulars provided to demonstrate either that the defendants had been charged with offences which they appeared to have committed, having regard to the material relied upon, or that such offences otherwise appeared from the material relied upon.'

15 The prosecutor's submissions were recorded as going to: 'The prosecution submitted that some of the arguments advanced had already been decided against the defendants in the earlier judgment and could not be further argued in these proceedings. While it was conceded that the particulars had been provided one day late, it was submitted that an order extending time would here be granted. It was also submitted that whether the prosecution was within time did not depend upon the views formed by the prosecutors. It was further argued to be unnecessary for evidence to be adduced as to what was in the prosecutors' minds when the prosecutions were launched. The requirements of s49(4) of the OH&S Act were either satisfied or not, which could be objectively determined from the coronial material relied upon. It was also argued that while the particulars provided were voluminous, this reflected the material from the coronial proceedings which demonstrated that it there appeared that the offences with which the defendants had been charged had been committed. It followed that the defendants' motions would be dismissed, the orders required under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 would now be issued in each case and the hearing of each of the charges would proceed.'

16 The prosecutor also sought an extension of time in the orders made in the earlier judgment. In the case of this defendant, when the particulars were in fact provided, was unclear on the material before the Court (see para [21] of the second judgment).

17 After the hearing had concluded the prosecutor filed the orders sought under s4 of the Summary Jurisdiction Act. In the final judgment, I came to a number of conclusions. Firstly, that the extension of time to provide particulars would not be granted (at [73]). Secondly, that in any event, the prosecutions had been commenced out of time, having regard to the provisions of s49 of the OHS Act, because the Coronial material relied upon by the prosecutor did not make it appear that the offences with which the defendant had been charged had been committed (at [107]) and thirdly, that there had been an abuse of process, in respect of which the defendant was entitled to relief (also at [107]). For those reasons, I declined to issue the orders sought under s4 of the Summary Jurisdiction Act.

18 As earlier noted, the appeal was not pressed in these cases. As a result, no orders have ever been made against the defendant under s4 of the Summary Jurisdiction Act. The defendant appeared in the proceedings in answer to the Registrar's summons, which it challenged as having been brought out of time, having regard to the provisions of s49(4) of the Act. A complaint that the proceedings were a nullity was raised unsuccessfully, the decision of the Full Court in Ridge having been followed in the first judgment.

19 The prosecutor did not explain why the appeal in these proceedings was not pressed. Whether it was accepted that the conclusion that the proceedings had been brought out of time was correct, or whether the view was taken that the prosecutor could not prove the offences in any event, or whether the prosecutions were not persisted with for some other reason, is entirely unknown.

20 In the appeal judgment, the Full Court noted that the appeals in these and other matters were not pressed ([15]). The grounds of appeal pressed were: '3. Her Honour erred in her exercise of her discretion to not grant an extension of time to the appellant to comply with order 1 made by her on 29 August 2000. 4. Her Honour erred in holding that she had a discretion to decline to issue orders under section 4 of the Supreme Court (Summary Jurisdiction) Act , 1967. 5. In the alternative to 4, her Honour erred in her exercise of her discretion under section 4 of the Supreme Court (Summary Jurisdiction) Act , 1967 to decline to issue orders. 6. Her Honour erred in holding she had a discretion under s 170 of the Industrial Relations Act , 1996 to dismiss each proceeding. 7. In the alternative to 6, her Honour erred in her exercise of her discretion to dismiss the proceedings. 8. Her Honour erred in holding that the opinion of the appellant as to whether each of the prosecutions was in time or not was a matter justiciable by her. 9. Her Honour erred in holding it was for the appellant to satisfy her that the prosecutions were all commenced within the time provided by section 49(4) of the Occupational Health and Safety Act , 1983 rather than for the respondents to satisfy her they were out of time. 10. Her Honour erred in holding that all aspects of the charges in each of the prosecutions must appear from the coroner's report or proceedings at the inquest or inquiry.

21 After considering whether the challenged orders were final, or interlocutory, in nature, the Full Court held that the dismissal did not amount to an acquittal and that no questions of double jeopardy arose ([62]). The orders I had made dismissing the prosecutions were held to be interlocutory and the appeal was competent ([68] to [72]).

22 The Full Court also adopted what had been earlier said by two other Full Courts. Firstly, that in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited, Leighton Contractors Pty Limited and Lurgi (Australia) Pty Limited [2002] NSWIRComm 68. There it was held that a person may only be ordered to appear before the Court to answer a charge under the OHS Act, by an order made under s4 of the Summary Jurisdiction Act and that the purported summons of the Registrar did not have the legal effect of requiring the defendant to appear before the Court. (See [49] to [53] of the judgment in Lucon). Secondly, that in Ridge, where it was held that the application for summons used by the prosecutor to initiate these proceedings, was not invalid, by virtue of the fact that they were not issued by a judge. (See [82] of the appeal judgment.)

23 It was also concluded in Lucon that I had erred in concluding that the application for summons and accompanying affidavit, must identify that s49(4) of the OHS Act was relied upon. The Full Court also agreed with this in the appeal judgment. (See [85] to [88].) The Full Court in the appeal judgment also concluded that the applications for summonses before it on appeal were not invalid and that the proceedings had been properly commenced ([90]). It was also concluded that the question of whether the proceedings had each been brought out of time had been considered prematurely and on a wrong premise ([93]). The matters were thereupon remitted to Haylen J, to consider whether orders under s4 of the Summary Jurisdiction Act should be made.

24 The Full Court observed in the appeal judgment at [94]: 'Whilst it might be that ultimately when this question again comes before the primary judge, it would be in the context of the respondents being properly before the Court to answer the charges laid against them. Prior to that occurring, the prosecutor will need to decide whether he wishes to continue to press for orders pursuant to s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act and it is possible that the respondents may have the opportunity, as referred to in Lucon, and subject to the observation in paragraph [92] above, to consider whether they might seek a permanent stay or dismissal of the proceedings on the grounds that the issuing of an order would be inappropriate or an abuse of process. If the matter does proceed past the point where orders are made pursuant to s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act, only then would it be necessary for the trial judge to consider questions such as to whether there is a defence or bar having regard to the provisions of s 49(4) of the Occupational Health and Safety Act . It is not a matter for the Full Bench to consider whether orders should issue and whether a defence, bar or the like, exists.'

25 Given the views which it reached, the Full Court did not need to consider the correctness of the conclusions I had reached, that the prosecutions had been commenced out of time.

26 In these cases, of course, the prosecutor had already decided that it did not wish to press for orders pursuant to s4 of the Summary Jurisdiction Act and s168 of the Act.

27 The case pressed by Mr Phillips of counsel was that the defendant was entitled to an order for costs. The appeal decision had made clear that there was never any valid order which required the defendant to appear before the Court in these proceedings. Nevertheless, the defendant had responded to the order of the Registrar served upon it, as was entirely proper, given the documents upon which the prosecution had relied to initiate the proceedings. The defendant was entitled to assume that it had been properly brought before the Court to answer the charges so laid by the prosecutor.

28 The defendant then took the appropriate steps to challenge the summonses as having been brought out of time. The prosecutor met that case and failed to demonstrate that they were brought within time. The fact that as a result of the appeal judgment, it later transpired that while these proceedings had been validly commenced, the summonses upon which the prosecutor had moved, were all defective and the defendant had not ever been properly brought before the Court, was not a basis upon which the defendant should now be deprived of a costs order in its favour.

29 That these prosecutions had gone astray was not attributable to the defendant. There was a public interest in prosecutors taking the necessary steps to ensure that the prosecutions which they brought were properly commenced, before the prosecution was embarked upon. The circumstances here were such that an indemnity costs order should flow to the defendant. (See Multicon Engineering Pty Limited v Federal Airports Corporation (1996) 138 ALR 425 at pp435-6 per Rolfe J and NRMA Insurance Limited v FRL Coyle Pty Limited (13 May 1994, unreported).)

30 It was further submitted that relevant to a consideration of such a costs order, was the circumstance that in October 2001, the prosecution had advised the defendant that it would not press the s16 charges. The result was that the first instance judgment dismissing the matters stood, which, of itself, warranted the order sought. What had transpired, after all, was that after the first instance hearings, the prosecutor had belatedly come to the conclusion that there was no case against the defendant under s16. This showed that the prosecution should not have been brought, nor persisted with. This circumstance too warranted the order sought.

31 It was also relevant that the second set of proceedings at first instance were necessitated by the prosecutor's failure to provide particulars in relation to why it was said that the proceedings had been brought within time. The result of the appeal judgment was that all of the proceedings at first instance were unnecessary, because the defendant had not ever properly been brought before the Court.

32 The prosecutor was an inspector of the WorkCover Authority, the main body in the State charged with bringing prosecutions under the Act. The defendant was entitled to proceed on the understanding that it had taken the necessary steps to ensure that the proceedings were properly commenced.

33 As to the prosecution's alternative proposals, that either each party should bear its own costs of the motion, or that the costs of the motion be reserved, pending determination of the s17 prosecutions, it was submitted that they must both be rejected. The usual rule was that when a new trial was ordered, the costs of the first trial became costs in the rehearing, although there may be special circumstances for a departure from that general rule. (See the discussion of Austin J in Knudsen v Kara Kar Holdings Pty Ltd and Ors (No2) (2000) 52 NSWLR 254 at pp258 to 260). If the new trial results principally from a party's error in the conduct of the original hearing, that party may be ordered to pay the costs of the hearing, irrespective of the outcome of the rehearing. (See Monaco v Arnedo Pty Ltd (1994) 13 WAR 522.)

34 Here, there would be no new trial on the question of whether the proceedings were brought out of time, because the appeal against the judgment dismissing these prosecutions had not been pressed and no orders under s4 of the Summary Jurisdiction Act, were ultimately pursued by the prosecution.

35 For the prosecutor it was submitted by Mr Skinner of counsel, that while an appeal was lodged in all matters dealt with in the two first instance judgments, in the case of this defendant, only proceedings brought under s17 of the OHS Act were finally pressed. Those matters were still on foot. The question of costs in those s17 proceedings were not before the Court as presently constituted. Unless the s17 proceedings were discontinued by the prosecutor, they would in due course be dealt with as contemplated by s14 of the Summary Jurisdiction Act. At that time, the costs of the litigation at first instance in relation to the motion, would also arise for consideration. That question might even have to be referred back to me for determination.

36 It was not just and reasonable in those circumstances, that the prosecutor be ordered to pay the costs in relation to the hearing of the defendant's motions in these matters. This followed, because the basis of the dismissal of the charges had been held to be in error, in the appeal judgment. It was the case that the defendants had not appeared before the Court as the result of invalid summonses issued by the Registrar, but as the result of their own motions. While the summonses were invalid, the defendants did not just attack the summonses per se, they pressed an argument as to the invalidity of the application for summons, as a means of commencement of the proceedings and hence the summonses themselves. Abuse of process was also alleged. The defendants were wholly unsuccessful upon these complaints, upon appeal. The appeal judgment comprehensively and clearly established that the motions were unfounded as to validity and abuse of process.

37 The appeal showed that the proceedings were validly commenced. As the result of the appeal, the costs of the motions in the s17 matters were reserved. The prosecution in these matters, if successful, would result in the defendants being ordered to bear the costs of the motions. Even if unsuccessful, the prosecution was still likely to be awarded its costs referable to the motion.

38 It followed that it was inappropriate, in the circumstances, to attempt to assess any part of the costs of these proceedings, which were referable to the motion. It was, in any event, not possible to 'unbundle' the costs referable to each motion. It followed that no order would be made as to those costs, or in the alternative, these costs would not be considered, not until the s17 prosecutions had been determined.

39 There is to my mind no question that a costs order would usually be made in criminal proceedings such as this, in favour of a defendant, when a prosecutor determines not to proceed with a prosecution it has instituted, after the defendant has been brought before the Court and has incurred costs in resisting the prosecution. The question which here arises is whether there should be any departure from that approach, having in mind the motion in question.

40 I am satisfied that the circumstances which arise in these cases are not such that it would be just, or reasonable, to deprive the defendant of a costs order in its favour. An order for costs is designed to indemnify or partly compensate the person in whose favour it is made, not to punish the party against whom it is made. Any difficulties which might arise in relation to assessing the appropriate costs in these matters, are not a proper basis for refusing to make any costs order at all. The usual order is that costs, as agreed or assessed by the Court, are to be paid. In the absence of agreement, an assessment will be made, on the basis of the material which the parties then advance.

41 It is relevant to a determination of what here lies between the parties, that they have agreed that the defendant should have an order for costs in its favour, consequent upon being brought before the Court by the prosecutor, to answer the summons issued for the Registrar. There is obviously a proper basis for that concession. The defendant was thereby obliged to appear before the Court to answer the charge so laid. That it later transpired that the defendant was not legally obliged to have done so, that necessity only arising if an order under s4 of the Summary Jurisdiction Act was issued, does not properly detract from that conclusion. The prosecutor accepts that consequence of the way in which these proceedings were commenced, it having later decided not to further press these charges.

42 As to the defendant's motion, I cannot conclude that the costs associated with the motion flow from the defendant's acts, so as to deprive it of a costs order in its favour. It was the prosecution which sought the issue of the summonses which brought the defendant before the Court. No criticism can be directed towards the defendant, as to how it then approached these prosecutions. The motion originally filed raised the question of whether the prosecutions had been brought within time. That was an obvious question, given the provisions of s49 of the OHS Act. Had the summonses issued for the Registrar been the proper way of bringing the defendant before the Court to answer the charges brought under s16 of the Act, that was the appropriate time and way for that question to be raised by the defendant.

43 The issue was, in fact, first raised by another defendant before the Registrar in November 1999, on the first occasion the matters came into the list. The Registrar then made directions as to the service of the prosecution brief, fixed a date for return of subpoenas and the parties were given an opportunity to further discuss other timetabling matters. The Coroner's file was produced to the Court in December and the parties given access.

44 In February, the prosecutor proposed a timetable of 6 weeks for particulars to be requested and then 8 weeks for answers to be provided. That was refused by the Registrar. Particulars were ordered to be sought by 6 March and the matter to be mentioned again on that day, for a timetable for a reply to the particulars to be fixed. The request for particulars was provided by the defendant, as directed.

45 On 6 March, the prosecutor sought 14 weeks to reply to the request for particulars. On that occasion the defendant announced that it too, would file a motion alleging that the prosecution had been brought out of time. The defendant was directed to file and serve the motion, with an affidavit in support, within 7 days, so that the motions could be referred together to a judge for hearing.

46 In accordance with those directions, the motions came on for hearing. At the hearing on 21 June, it was put for the prosecutor that the essential question for determination was the proper construction of s49 (4) of the OHS Act. The matters raised by the defendant included the failure to refer to that provision in the initiating process, it being argued that this was an essential element of the charges laid. Complaints as to the prosecution's refusal to answer particulars about the reliance on s49(4), were also pressed.

47 On 22 June, the prosecutor called Mr Correy to give evidence as to the circumstances in which it had been revealed to a court officer that the prosecutor relied upon s 49(4) of the OHS Act and how the summonses were issued. It was then also revealed that the summonses had not been signed by the Registrar, as required by the Act and Rules. The prosecutor noted that this was not an issue raised by any of the defendants on their motions, but did not object to the issue being ventilated.

48 The defendant indicated that it would amend its motion to deal with that question and thereupon, the prosecution was granted an adjournment. At a mention on 26 July the prosecution accepted that the summons had not been issued by a Registrar, or Deputy Registrar, but sought the opportunity to put submissions in relation to whether the summonses had been validly issued or not.

49 By the time of the further hearing on 21 August, the decision in Ridge had been given and the prosecutor relied upon it to establish that the proceedings had been validly commenced. The defendant thereupon did not press the question of invalidity further. It was the prosecutor's case following Ridge, that the failure to issue an order under s4 of the Summary Jurisdiction Act was of no consequence in these proceedings, as the parties were before the Court. In any event, the Court could still make such an order. The proper construction of s49 of the OHS Act was then addressed, it being submitted that the Court would not dismiss the proceedings, because they were brought within time. As to the failure to supply particulars, leave was sought to supply such particulars if it were considered necessary to do so, having regard to the proper construction of s49(4). The defendant repeated its complaints as to the prosecutor's failure to provide particulars as to what was relied upon, to establish that the prosecution had been brought within time under s49(4) of the OHS Act. The defendant opposed such leave being granted to the prosecution to then provide particulars and opposed the issue of a summons under s4 of the Summary Jurisdiction Act, given that the proceedings had been commenced out of time.

50 In the first judgment, the questions of construction raised were dealt with and the prosecution ordered to supply particulars.

51 It is pertinent to note that the prosecutor did not argue at any point in these proceedings, that the defendant's motion had been brought prematurely, because no order under s4 of the Summary Jurisdiction Act had been sought, nor made. To the contrary, during the course of the hearing, a question arose as to whether the proceedings had been validly commenced, given that the summons issued had not been signed by the Registrar, as the Court's Rules required. That question was decided by the Full Court in Ridge. It was in those circumstances that the question which the parties then addressed at the second hearing, was whether an order under s4 of the Summary Jurisdiction Act should issue, given the arguments that the proceedings, having being validly commenced, were, nevertheless, brought out of time.

52 Prior to the first hearing, the prosecutor had still refused to answer the defendant's particulars about that issue. During the hearing the prosecutor sought a further opportunity to provide such particulars. That opportunity was granted in the first judgment. The particulars were not provided in accordance with the Court's orders. That matter, the allegation that the proceedings amounted to an abuse of process and the question of whether the prosecutions had been brought within time, thus arose for consideration at the second hearing. The prosecution sought an extension of time to provide the particulars and the parties addressed the question of whether the coronial material, in fact, established that the offences charged had been committed at the further hearing in April. Further submissions were also advanced by the parties as to the proper construction of s49 of the Act. Ultimately, it was determined in the second judgment, that these prosecutions had been commenced out of time.

53 After the second judgment the prosecutor advised the defendant that it would not proceed with these prosecutions. Accordingly, the appeal against the two judgments was not pressed in these cases.

54 In my view, in all of these circumstances, the future disposition of the prosecutions brought against the defendant under s17 of the Act and any costs orders made in those proceedings, can have no proper bearing upon what costs order it is just and reasonable to make in these proceedings. The further hearing of those s17 matters has plainly resulted from arguments not advanced in these cases, either at first instance, or on appeal. Indeed, even in the appeal judgment, the Full Court found it unnecessary to consider whether the conclusion that the s17 proceedings had been brought out of time, was correct.

55 Those circumstances do not, in my view, leave open the conclusion that it would now be just either to deprive the defendant of a costs order, or to delay consideration of that order, pending the outcome of the s17 prosecution. I am conscious that another group of defendants, in a similar position to this defendant, has consented to such an order being made. That agreement, in my view, does not provide a sound basis for the orders here pressed by the prosecution, against this defendant.

56 It is also relevant to this conclusion, that in other prosecutions brought under the Act, which arose out of the same circumstances in 1995, the prosecution voluntarily provided other defendants with particulars of the kind finally provided to the defendant in this case. This followed the conclusions reached in the first judgment in these proceedings. (See WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited [2003] NSWIRComm 28 and WorkCover Authority of New South Wales (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited and Luis Bustamante [2003] NSWIRComm 35.)

57 The question of whether the prosecutions in those cases had been brought out of time, were determined after the s4 summonses were issued, following upon the approach of the Full Court in the appeal judgment. Nevertheless, the basis upon which consideration of that question went forward, was consistent with the conclusions reached in this case, as to the proper construction of s49 of the Act. Indeed, in AGL, it was the express submission of the prosecutor, another inspector of the WorkCover Authority, that the approach adopted to that question in this case was correct and should there be followed. That submission was accepted. These developments but confirm the conclusion which I have reached, that this defendant could not justly or reasonably be deprived of a costs order in its favour in these proceedings.

58 Despite the conclusions I have reached, that the defendant is entitled to a costs order, I have not, however, been convinced that an indemnity costs order should be made. The law as to the circumstances in which such an order will be made is well settled. (See for example, the discussion of these authorities in Hairman v FileNET Corporation Pty Limited [2002] NSWIRComm 76 at [20].) I am unable to conclude that these circumstances bring this case into the class of cases there discussed. While the appeal was not pressed in these matters, I accept that some note must be taken of the views reached in the appeal judgment, particularly that there was no abuse of process in the approach adopted by the prosecutor. While the refusal to supply the particulars sought was plainly unfortunate, necessitating as it did the second hearing, I do no accept that there were such special or unusual features of an unmeritorious nature surrounding the prosecution case, so as to make it unreasonable or unfair for the defendant to be out of pocket, as a result of the proceedings.

Order 59 For all of these reasons, I have concluded that the just and reasonable order in these circumstances is the usual order made when a prosecution is dismissed, namely that the prosecutor is to bear the defendant's costs, as agreed or assessed by the Court. I so order. The parties have liberty to approach, in the event that an assessment is necessary. ------------------------

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