WorkCover Authority of NSW (Inspector Mansell) v Ove Arup Consult Pty Limited and Ors

DEFENDANT: Ove Arup Consult Pty Limited _________________________________________________

MATTER NUMBERS 5472, 5474 AND 5476 OF 1999 _________________________________________________ PARTIES : PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell)

DEFENDANT: Arup Partner Pty Limited _________________________________________________

MATTER NUMBERS 5478, 5479 AND 5481 OF 1999 _________________________________________________

PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell)

DEFENDANT: Ove Arup Pty Limited FILE NUMBER: IRC 5468, 5469, 5471, 5472, 5474, 5476, 5478, 5479, 5481 of 1999 CORAM: Schmidt J CATCHWORDS : Costs - Prosecutions 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 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 (NSW) Latoudis v Casey (1990) 170 CLR 534 Higgins v Avoca Estate Agency Pty Ltd (unreported, (Wright J, President, Hungerford and Marks JJ) 3 December 1999)) WorkCover Authority of New South Wales (Inspector Mansell) v Ridge Consolidated Pty Ltd [2000] NSWIRComm 6 WorkCover Authority of New South Wales (Inspector Mansell) v Lucon (Australia) Pty Ltd (No 1) [2002] NSWIRComm 68 CASES CITED : WorkCover Authority of New South Wales (Inspector Mansell) v Lucon (Australia) Pty Ltd (No 2) [2003] NSWIRComm 40 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 108 IR 121 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110 HEARING DATES: 04/02/2003 DATE OF JUDGMENT: 12/04/2003

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Moray & Agnew

LEGAL REPRESENTATIVES: DEFENDANT: Mr J Sheller, solicitor SOLICITORS: Phillips Fox

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

MATTER NUMBER IRC 5468 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5469 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5471 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5472 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5474 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5476 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5478 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5479 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 5481 OF 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

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 defendants 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.) 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 (2000) 101 IR 271.

2 Those judgments were the subject of an appeal. The appeals in these matters were however, finally not pressed by the prosecution. The result was that these prosecutions stand dismissed. The defendants now seek an order of costs in their favour.

3 The hearing of the question of costs was listed earlier. By agreement, that consideration was adjourned, while the other prosecutions brought against the defendants were dealt with. The costs order was pressed by the defendants in September 2003, when an agreed timetable for the filing of written submissions was accepted.

4 The initial position of the defendant was that it was relevant that the appeals in these matters had not been pursued by the prosecution and that there was nothing before the Court, which would assist it in determining how, why, or when the prosecution first became aware that it had no reasonable prospects of securing convictions in respect of these s16 prosecutions. No evidence had been led as to what had occurred between the time of commencement of the prosecutions and the time of the decision to discontinue them.

5 This was relevant to the costs order sought, because of the investigation which had been conducted by the prosecution over a period of 4 years, prior to the initiation of the proceedings in October 1999. The prosecution had thus had ample time to consider the charges to be laid and there were no circumstances of urgency attending the prosecutions being laid. The prosecution had been assisted by senior legal minds, throughout the pursuit of the prosecutions, in circumstances where, by way of contrast, all that the defendant had ever been provided with was the initial brief of evidence. The proper inference was that nothing had changed since October 1999 and that the withdrawal of the charges amounted to a clear concession by the prosecution that there had never been sufficient evidence to commence the proceedings in the first place.

6 It was submitted that the defendants were clearly right to have protected their interests by the filing of the motions seeking the dismissal of the charges. The judgment in WorkCover Authority of New South Wales (Inspector Mansell) v Lucon (Australia) Pty Ltd (No 1) [2002] NSWIRComm 68, had made that clear. There it was found that the purported summons issued by the Registrar did not have the legal effect of requiring the defendants to appear before the Court.

7 It was argued that the High Court has clearly provided that a defendant against whom a prosecution has failed, is entitled to an order for costs. (See Latoudis v Casey (1990) 170 CLR 534 at 544, per Mason CJ, 565 per Toohey J and 569 per McHugh J.) This was more so the case where the prosecution was withdrawn, without any attempt to tender evidence of guilt and where there was no evidence of any misconduct by the defendant, as discussed by Mason CJ and McHugh J.

8 It was also relevant that it was the prosecutor's repeated failure to provide particulars sought by the defendants, which had led to the defendants filing the motion. This was persisted with, even when the prosecution was ordered to provide those particulars. The approach of this Court to the provision of particulars was also relied upon. (See Higgins v Avoca Estate Agency Pty Ltd (1999) 92 IR 286 and WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm 6, where even an unsuccessful defendant had costs awarded in its favour.)

9 The initial position of the prosecutor was that it consented to an order for costs against it, consequent upon the bringing of the s6 charges, except in relation to those costs consequent upon the motions dealt with in the two judgments given in these proceedings. It was argued that no order as to costs should be made in favour of the defendants in relation to the defendants' motion, or in the alternative, that no order should be considered, until the outcome of the proceedings brought against the defendants under s17 of the Act, before Haylen J, were known. The prosecution's submissions otherwise were in accordance with those pressed in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110. I do not further outline them here.

10 In the prosecution's further written submissions, it was noted that ordinarily the question between the parties would have been resolved by the judgment given in those other proceedings, where the same question had been decided. Namely, the judgment in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110.

11 Reliance was, however, placed upon a Full Court judgment in WorkCover Authority of New South Wales (Inspector Mansell) v Lucon (Australia) Pty Ltd (No 2) [2003] NSWIRComm 40 at [19], [22] and [23].

12 This judgment was argued to be relevant to the issues here lying between the parties. It had been given after the judgment in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110.

13 It was submitted that the Full Court had accepted submissions made by the prosecution in Lucon (No 2), 'in identical terms to those made in the written submissions in this application at 14(c) and 14(d)'. In the Lucon proceedings the defendant had essentially made the same attacks on the initiation of proceedings against them, as had been made by motion in these proceedings. It followed that what must weigh heavily in the deliberation in this matter was 'the fact that the defendant's (sic) central attack upon the process of the initiation of proceedings against them, which was the basis of their motions brought and which consumed the bulk of the court time spent in litigation of the motions, was found to be wholly unsuccessful by the Full Bench on appeal, in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128.'

14 It followed that the disputed aspect of the costs order should be rejected.

15 The defendants' further written submissions relied upon the judgment given in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110, where an order for indemnity costs had been rejected, but the usual costs order had been made in favour of the defendant.

16 It was argued that the effect of the submissions now pressed by the prosecution was to seek to go behind the judgment given in these matters in May 2001, when the s16 prosecutions were dismissed, as well as the costs judgment in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110. The analogies drawn by the prosecution with the defendant in Lucon were made, it was submitted, with a view to persuading the Court that it had fallen into error, in dismissing the s16 charges in these proceedings and in the costs orders made in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110. Such a course was not available, given the abandonment of the appeals in these proceedings and the fact that the judgment in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110 had not been appealed.

17 The result of that approach, if it succeeded, would be to relegate the defendant to the position of an unsuccessful party in these prosecutions, on the basis of an incomplete and overly simplistic analysis of what had occurred in this and other litigation.

18 It was submitted to be relevant that appeals in these matters initiated by the prosecution were abandoned. The reasons for that decision had not been revealed. The charges thus stood dismissed and no action taken by the prosecutor had disturbed that position. The irresistible inference was that the prosecutor had formed the view that it could not succeed on the s16 prosecutions. For that reason alone, the reliance placed on Lucon was misconceived, even if similar issues there arose for consideration.

19 It was further submitted that Lucon did not here assist the prosecution. In relation to costs, it merely showed that costs should follow the event. Where a defendant is successful in summary criminal proceedings, he or she should be entitled to costs, as the High Court decided in Latoudis. Lucon did not detract from this principle.

20 An order for costs in the usual terms was pressed for the costs of the motion, but an order on an indemnity basis, for the costs application itself.

21 The parties agreed that the prosecutor might file further short written submissions in relation to the question of indemnity costs. The submission opposing that order was filed on 28 November 2003.

22 It is relevant to note that judgment on the appeal from the two earlier judgments given in these matters, was given on 27 May 2002. The appeal was not concerned with these matters, in which I declined to issue orders under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) ('the Summary Jurisdiction Act'). The appeal in relation to other prosecutions pursued against the defendant under s17 of the OHS Act was upheld and those matters were remitted to Haylen J, for consideration as to whether orders should be issued under the Summary Jurisdiction Act. His Honour later issued those orders and listed for hearing the question of whether the proceedings were brought out of time, having regard to the provision of s49 of the OHS Act.

23 As earlier noted, the issues which here arise for consideration were dealt with, contrary to the case here argued for the prosecution, in relation to other defendants in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110. I do not repeat what I there concluded, but adhere to it.

24 There is to my mind, no question that a costs order would usually be made in 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. I am satisfied that the High Court's judgment in Latoudis does not leave that question open to doubt, in the circumstances of this case. The defendants' pursuit of its motion certainly cannot be regarded as 'misconduct', as discussed in Latoudis.

25 As to the reliance placed upon the Full Court's judgment in Lucon (No 2), I am unable to conclude that this judgment can lead to any conclusion in relation to costs, other than that the usual order should be made in favour of the defendants. The result in both cases will be consistent, costs having followed the event.

26 In this case, that outcome has resulted from the Court's refusal to issue summonses under the Summary Jurisdiction Act and the prosecutor's decision not to pursue that judgment further, when the appeal was not prosecuted. The reasons for that decision by the prosecution have not been revealed. The end result is the same as that discussed in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110. I can see no basis for reaching any different conclusion in relation to the making of a costs order in favour of the defendants in this case.

27 I finally note that I am not inclined to make the indemnity costs order sought. I am not satisfied that the circumstances are such, that such an order can properly follow, having in mind the approach to such orders referred to in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd [2003] NSWIRComm 110 at [58]. While I have rejected the prosecutor's submissions as to costs, I cannot conclude that merely advancing the argument, properly entitles the defendant to an indemnity costs order.

28 For all of the reasons given, I order the prosecution to pay the defendants' costs of the proceedings, as agreed or assessed in accordance with the Court's Rules. ------------------------

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