Citation: SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334
Court: District Court of New South Wales
Date: 19 July 2019
Judge: Russell SC DCJ
Background
This decision dealt solely with costs following an earlier interlocutory judgment (SafeWork NSW v AKA Civil Australia Pty Ltd [2019] NSWDC 257). The underlying proceedings are a prosecution brought by SafeWork NSW against a civil construction company under the Work Health and Safety Act 2011 (NSW).
The defendant had filed a Notice of Motion in March 2019 seeking to have the prosecution quashed, permanently stayed, or dismissed. That motion was dismissed in June 2019, and the court then invited written submissions on costs.
Both parties provided submissions on the papers, with the prosecutor arguing that any costs order should be deferred to the end of the proceedings, and the defendant arguing that costs should be resolved immediately.
Legal Issues
- Whether the prosecutor should bear any costs arising from its mid-hearing amendment to the summons, including earlier costs thrown away in the particulars process
- Whether the defendant should bear the prosecutor's costs on the ground of the motion it lost
- Whether the court should defer making a costs order until the conclusion of the prosecution
- What the net costs outcome should be where each party succeeded on different aspects of the same motion
Decision
First ground (standard of care pleading): The prosecutor had initially conceded that the summons imposed a higher standard on the defendant than the Act required. That concession was later withdrawn, and the prosecutor sought leave to amend the summons during the hearing itself. The court found that a party seeking an indulgence from the court ordinarily bears the opposing party's thrown-away costs. This principle applied to the amendment application and also to the defendant's earlier requests for particulars (by letters dated October and December 2018), which had been necessary because of the way the original summons was drafted.
Second ground (identification of persons at risk): The defendant failed on its argument that the prosecutor was obliged to identify the specific persons put at risk by the alleged breach. On that ground, costs ordinarily follow the event, meaning the defendant would bear the prosecutor's costs.
Balancing the two grounds: The court found that the costs consequences of each ground effectively cancelled each other out. Rather than making cross-orders, the court determined that each party should bear its own costs of the motion overall, subject to a specific carve-out requiring the prosecutor to pay the costs associated with the two earlier particulars requests.
Timing of the costs order: The court rejected the prosecutor's submission that costs should be deferred until the conclusion of the proceedings. It accepted the defendant's argument that no utility was served by forming a concluded view on costs now but then postponing the formal order until the case ended.
Orders Made
- The prosecutor is to pay the defendant's costs associated with the requests for further and better particulars made by letters dated 16 October 2018 and 6 December 2018.
- Subject to the above, each party is to pay its own costs of and incidental to the defendant's Notice of Motion filed 11 March 2019.
- Each party is to pay its own costs of determining the costs issue on the motion.
Key Takeaways
- A party seeking an indulgence from the court, such as leave to amend a document mid-hearing, will ordinarily be expected to bear the opposing party's costs thrown away as a result of that amendment.
- Where a motion raises multiple discrete grounds and each party succeeds on different grounds, the costs consequences can offset each other, making an order that each party bear its own costs the appropriate outcome.
- The District Court declined to defer its costs order until the end of the prosecution, finding no practical utility in forming a concluded view on costs while withholding the formal order.
- Costs associated with requests for particulars that were made necessary by a deficiency in the original pleading may be awarded against the party responsible for that deficiency, even where the pleading is later amended to cure the problem.
- Under s 21 of the Criminal Procedure Act 1986 (NSW), the court's power to allow amendment of an indictment carries with it a wide discretion to make such cost orders as the circumstances require.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW)
- Criminal Procedure Act 1986 (NSW), s 21
Cases:
- SafeWork NSW v AKA Civil Australia Pty Ltd [2019] NSWDC 257 (the earlier interlocutory judgment to which this costs decision relates)