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Court of Criminal Appeal 22 June 2022

Orr v Hunter Quarries Pty Ltd (No 2)

[2022] NSWCCA 138

Public order & justice offences
COSTS COSTS ORDER MADE NO QUESTION OF PRINCIPLE

Citation: Orr v Hunter Quarries Pty Ltd (No 2) [2022] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 22 June 2022
Judges: Beech-Jones CJ at CL (with Walton J and Price J agreeing)

Background

This costs decision followed the principal judgment in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39, in which the Court of Criminal Appeal answered nine questions of law referred to it from the District Court sitting in its summary jurisdiction. The referral had been made under s 5AE(1) of the Criminal Appeal Act 1912, a procedure designed to allow courts of first instance to seek advice from the Court of Criminal Appeal on pure questions of law arising in summary proceedings.

The prosecutor at first instance, Steven James Orr, had applied to have seven of the nine questions referred. Following the Court's determination of those questions, Hunter Quarries Pty Ltd was acquitted. Hunter Quarries then applied for a costs order against Mr Orr under r 3.15 of the Supreme Court (Criminal Appeal) Rules 2021.

Mr Orr opposed the application, arguing that a stated case is not an appeal, that there is no winner or loser in such a procedure, and that some of his questions had produced answers of utility to other courts. Hunter Quarries countered that Mr Orr's questions and submissions had been directed overwhelmingly at attacking the primary judge's reasoning, and that Hunter Quarries had no practical choice but to appear and respond.

  • Whether the Court had power to award costs following the determination of questions referred under s 5AE(1) of the Criminal Appeal Act 1912
  • How the discretion to award costs under s 5AE(2) should be exercised in the circumstances of this referral
  • Whether the character of Mr Orr's questions and submissions was relevant to the costs discretion

Decision

The Court confirmed that s 5AE(2), which permits the Court to "make any such order or give any direction" following determination of referred questions, has previously been construed to authorise costs orders. That position was established in Taylor v Environment Protection Authority (2000) and affirmed in Mackenzie (2019). The discretion is broad and contains no presumptions, but should be exercised on grounds connected with the proceedings or the conduct of the parties.

Beech-Jones CJ at CL found that, while the relative success of each party on the questions was a relevant consideration, it was not the decisive one. The more significant factor was the character of the proceedings themselves. Since Orr v Cobar Management Pty Limited [2020] NSWCCA 220, it has been beyond serious doubt that s 5AE exists to obtain advice on pure questions of law, not to mount a disguised appeal against a primary judge's factual reasoning.

The Chief Judge at Common Law found that Mr Orr's submissions had been overwhelmingly directed at undermining the primary judge's application of the law to the facts, which is precisely what s 5AE does not permit. The questions referred did not raise any particular question of principle and did not meaningfully advance the existing case law on the Work Health and Safety Act 2011. In substance, the proceeding was an attempt to appeal the primary judge's judgment.

Given that Hunter Quarries had a vital interest in preserving the primary judge's verdict following 45 days of hard-fought litigation, and had no practical alternative but to engage fully with the proceedings, the Court concluded that costs should follow. Walton J and Price J both agreed with the Chief Judge at Common Law.

Orders Made

  • Steven James Orr is to pay the costs of Hunter Quarries Pty Ltd of and incidental to the referral to this Court of the questions determined in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.

Key Takeaways

  • The Court of Criminal Appeal confirmed it holds power to award costs under s 5AE(2) of the Criminal Appeal Act 1912 following determination of a stated case, consistent with Taylor and Mackenzie.
  • Under s 5AE, the costs discretion is broad, contains no presumptions, and should be exercised on grounds connected with the proceedings or the conduct of the parties, including the overall result of the questions argued.
  • Where a prosecutor frames questions of law under s 5AE in a manner that is, in substance, an attempt to appeal the primary judge's factual reasoning rather than to obtain advice on pure questions of law, that character is a weighty factor supporting a costs order against the prosecutor.
  • Since Orr v Cobar Management Pty Limited [2020] NSWCCA 220, it has been settled that s 5AE questions must be pure questions of law capable of recognition on the face of the question, and must not require analysis of whether the primary judge erred in applying the law to the facts found.
  • A respondent who had no practical choice but to appear and respond to a stated case referral, given a vital interest in preserving a verdict after lengthy litigation, is not to be denied costs on the basis that the stated case procedure does not produce a formal "winner" or "loser."

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AE(1) and 5AE(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.15
- Work Health and Safety Act 2011 (NSW), s 32

Cases:
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 (the principal judgment)
- Orr v Cobar Management Pty Limited [2020] NSWCCA 220
- Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71
- Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202