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Supreme Court 20 September 2019

Nash v Resource Pacific Pty Ltd (No 4)

[2019] NSWSC 1253

Other
COSTS PRINCIPLES FROM LATOUDIS V CASEY WHERE PROSECUTION DISMISSED COSTS TO DEFENDANT

Citation: Nash v Resource Pacific Pty Ltd (No 4) [2019] NSWSC 1253
Court: Supreme Court of New South Wales
Date: 20 September 2019
Judge: Walton J

Background

A prosecution was instituted in 2011 against Resource Pacific Pty Ltd ("the defendant"), the operator of the Ravensworth Underground Mine near Singleton, NSW. The charges alleged breaches of s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 (NSW) arising from a February 2009 incident in which workers drove trucks beneath a large loading hopper and were said to be at risk from falling material. The substantive trial concluded on 2 February 2018, when the Court delivered its verdict in Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45.

At trial, the Court found that the prosecutor had failed to prove the charged contraventions of s 8(2) across most particulars, and had failed entirely to prove the s 10(2) charge. For two remaining particulars (particulars 9 and 11 of the s 8(2) charge), the defendant successfully established the statutory defence under s 28(a) of the OHS Act, proving it was not reasonably practicable to have complied with the provision in the manner charged. Both charges were dismissed.

Following dismissal, the defendant applied for an order that the prosecutor pay its costs of the proceedings. This judgment (No 4) deals solely with that costs application.

  • Whether s 257C of the Criminal Procedure Act 1986 (NSW) permitted a costs order in favour of the defendant following dismissal of summary OHS proceedings.
  • Whether the principles in Latoudis v Casey (1990) 170 CLR 534 applied to OHS prosecutions dismissed after a successful statutory defence, or whether that mode of dismissal was materially distinguishable.
  • Whether the version of s 257D of the Criminal Procedure Act in force before the Work Health and Safety Act 2011 (NSW) imposed any additional threshold for a costs award, and how transitional provisions affected that question.
  • How the conduct of the parties and the nature of the charges bore on the exercise of the Court's discretion to award costs.

Decision

The Court confirmed that the costs of these proceedings were governed by Division 4 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (NSW), following Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125. Because the offences pre-dated the commencement of the Work Health and Safety Act 2011 on 1 January 2012, the pre-2012 version of s 257D applied by operation of transitional provisions in Schedule 4, clause 13 of that Act. The Court noted that the pre-WHS Act form of s 257D imposed limitations on awarding professional costs against a public prosecutor, but proceeded to consider whether those limitations were satisfied alongside the broader discretionary principles.

The Court applied the reasoning in Latoudis v Casey, in which the High Court held that a successful defendant in summary criminal proceedings ordinarily has a reasonable expectation of a costs order, because it is just and reasonable to indemnify defendants for costs incurred in defending an unsuccessful prosecution. The prosecutor argued that a dismissal arising from a successful statutory defence was materially different from an outright acquittal on the merits, because the defendant bore the onus of proving that defence. The Court rejected that distinction as having limited force on the facts.

The Court identified three reasons why the distinction lacked substance in this case. First, when confronted with a statutory defence, the prosecutor retains the option to contest or accept the viability of particular charges. Second, a considerable portion of the time and costs incurred related to the prosecutor's own case on liability, not merely the defendant's defence. Third, the structure of summary proceedings does not generally require a defendant to reveal its case before it opens, so the prosecutor's position was not materially different from ordinary summary criminal proceedings considered in Latoudis.

In all the circumstances, the Court exercised its discretion in favour of the defendant and ordered that the prosecutor pay the defendant's costs of the proceedings on an ordinary basis.

Orders Made

  • The defendant was ordered to bring in short minutes of order reflecting the costs judgment within 7 days of publication.
  • The substantive costs order directed the prosecutor to pay the defendant's costs of the proceedings on an ordinary basis.

(Note: The procedural consent orders reproduced in the extracted text relate to the timetable for costs submissions and do not form the substantive orders of this judgment.)

Key Takeaways

  • The Supreme Court confirmed that costs in OHS summary proceedings determined under Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (NSW) are governed by Division 4 of that Part, including s 257C, following EPA v Truegain.
  • Transitional provisions in Schedule 4 of the Work Health and Safety Act 2011 mean that the pre-2012 version of s 257D of the Criminal Procedure Act continues to apply to proceedings for offences committed before 1 January 2012, affecting the threshold a defendant must meet to obtain a costs order against a public prosecutor.
  • Under Latoudis v Casey, a successful defendant in summary criminal proceedings ordinarily has a reasonable expectation of a costs order; this decision confirmed that principle extends to OHS prosecutions dismissed following a successful statutory defence, not only to outright acquittals on the merits.
  • A dismissal achieved partly through a statutory defence (where the defendant bore the onus of proof) does not automatically deprive a defendant of a costs order, particularly where substantial costs were incurred responding to the prosecution's case on liability.
  • Where a prosecutor has the opportunity to contest or accept the viability of a statutory defence and elects to contest it, that choice is a relevant factor in the exercise of the costs discretion.

Legislation and Cases Referenced

Legislation
- Occupational Health and Safety Act 2000 (NSW), ss 8(2), 10(2), 28
- Criminal Procedure Act 1986 (NSW), ss 257C, 257D, 257G, Pt 5, Ch 4
- Work Health and Safety Act 2011 (NSW), Sch 4, cl 13
- Coal Mine Health and Safety Act 2002 (NSW)

Cases
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280