Citation: SafeWork NSW v BSA Limited (No. 4) [2023] NSWDC 544
Court: District Court of New South Wales
Date: 6 December 2023
Judge(s): Russell SC DCJ
Background
SafeWork NSW prosecuted BSA Limited (the defendant employer) for offences under the Work Health and Safety Act 2011 (NSW), arising from the death of a worker in December 2018. Proceedings commenced in December 2020 and the matter was initially listed for a four-week contested hearing.
In December 2022, BSA entered a guilty plea on a limited basis, admitting one of two pleaded risks and two of several pleaded reasonably practicable measures it should have taken. A Disputed Facts Hearing followed over thirteen days, after which the court found BSA guilty. At sentencing, the court accepted that BSA's failure substantially caused the worker's death.
This fourth judgment dealt solely with the costs of the prosecution, with the parties filing written submissions and agreeing the question be resolved on the papers.
Legal Issues
- What proportion of the prosecutor's costs should BSA pay, given SafeWork succeeded on some issues but failed on others?
- Whether pre-trial negotiations between the parties, disclosed by the defendant, were admissible and relevant to the costs determination.
- Whether a proposed costs cap of $200,000 was an appropriate limit on any costs order.
Decision
Issue 1: Relevance of pre-trial negotiations
The defendant annexed seven items of correspondence between the parties' solicitors and senior counsel concerning plea negotiations, arguing the material revealed unreasonable and disentitling conduct by the prosecutor (at [15]-[16]). The court declined to consider this correspondence entirely (at [17]). Russell SC DCJ reasoned that plea negotiations must be conducted on a frank and confidential basis, and that exposing such communications to judicial scrutiny would inhibit future negotiations. The court also observed that admitting such material would risk creating a "trial after a trial" on costs, substantially increasing the burden on the court and public resources (at [17]-[18]).
Issue 2: Proposed costs cap
The court rejected the defendant's submission that costs be capped at $200,000, accepting the prosecutor's characterisation that this figure was chosen "out of the air" and bore no demonstrated relationship to the actual quantum of costs (at [19]).
Issue 3: Apportionment of costs
Applying the principles from Bulga Underground Operations Pty Ltd v Nash, the court exercised its discretion to apportion costs rather than award the full amount (at [20]-[24]). The court noted that the prosecutor failed to establish one of the two pleaded risks, which involved expert evidence, and also failed on several of the pleaded reasonably practicable measures. However, the court found that none of the failed pleaded matters were hopeless or unarguable, and that the overlap between the measures meant the analysis often depended on the legal characterisation of steps rather than discrete bodies of evidence (at [22]-[23]). Taking a "broad brush" approach, the court ordered BSA to pay 85% of the prosecutor's costs (at [24]).
Orders Made
- BSA Limited is ordered to pay 85% of the prosecutor's costs.
- The exhibits are returned.
Key Takeaways
- The District Court refused to consider pre-trial plea negotiations placed before it on a costs application, holding that such communications should remain entirely confidential and that judicial scrutiny of them would inhibit frank negotiations and risk a costly "trial after a trial" (at [17]-[18]).
- Under section 257B of the Criminal Procedure Act 1986 (NSW), costs in criminal proceedings are discretionary, and a court may apportion them where a party has succeeded on some issues and failed on others, consistent with the approach in Bulga Underground Operations Pty Ltd v Nash (at [11]-[13]).
- A proposed costs cap advanced without any demonstrated connection to the actual costs incurred carries little weight; the court rejected a $200,000 ceiling as an arbitrary figure (at [19]).
- Where a prosecutor fails on some pleaded matters, that failure does not necessarily disentitle it to a substantial costs order, particularly where the failed matters were legally arguable and formed part of a legitimate exercise of the prosecutor's public duty to put all material issues before the court (at [23]).
- Mathematical precision is not required in apportioning costs; a broad-brush percentage reduction is a recognised and appropriate method where isolating discrete costs by issue is impractical (at [21]-[24]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW) , ss 257B, 257G
- Work Health and Safety Act 2011 (NSW)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73
- SafeWork NSW v BSA Ltd (No. 3) [2023] NSWDC 417