Citation: Charles Fountain (ComCare) v The Commonwealth of Australia; Charles Fountain (ComCare) v International Health and Medical Services Pty Ltd [2024] NSWLC 3
Court: NSW Local Court
Date: 29 February 2024
Judge: Shields LCM
Background
The proceedings arose from the death of an immigration detainee at the Villawood Immigration Detention Centre (VIDC) in New South Wales in March 2019. The detainee died in an apparent act of self-harm by hanging. The prosecutor (ComCare) commenced proceedings in March 2021 against two defendants: the Commonwealth of Australia as represented by the Department of Home Affairs (DHA), which manages and operates the VIDC, and International Health and Medical Services Pty Ltd (IHMS), which operated the medical centre within the facility under contract with the DHA. Each defendant was charged with breaches of section 19(2) of the Work Health and Safety Act 2011 (Cth).
Neither defendant had entered a plea. Both contended they could not do so without further and better particulars of the charges against them, arguing the existing pleadings were too broad and obscure to identify the case they needed to meet.
The applications before the court, filed in May and June 2022 respectively, sought orders compelling the prosecutor to provide proper particulars, a temporary stay of proceedings pending compliance, and costs.
Legal Issues
- Whether the Local Court has an implied power to grant a temporary stay of criminal proceedings where inadequate particulars have been provided.
- Whether, in exercising that implied power, the Local Court also has power to order costs.
- Whether costs were payable under section 216 of the Criminal Procedure Act 1986 (NSW) as a result of the adjournment of the applications, and if so, in what amount.
- Whether the particulars supplied by the prosecutor across multiple iterations were adequate to allow the defendants to understand and meet the case against them.
Decision
The court found that the Local Court possesses an implied power to grant a temporary stay of criminal proceedings. This power derives from the inherent or implied jurisdiction of courts to control their own processes and prevent abuse, a principle recognised in authorities including Grassby v R (1989) and DPP v Deeks (1994). The court held that this power extends to ordering costs when exercising it, as costs are properly incidental to the exercise of the implied jurisdiction.
On the substantive particulars dispute, the court found that the prosecutor's repeated and shifting iterations of the particulars were inadequate. Over more than two years, the prosecutor had provided multiple rounds of particulars that were found to be non-responsive, internally inconsistent, and in some instances combined the particulars for two separately charged defendants with different duties and different cases to answer. This left both IHMS and DHA unable to identify with precision what conduct was alleged against each of them.
In relation to costs, the court applied the principles governing costs on adjournment under section 216(1) of the Criminal Procedure Act 1986 (NSW). The court distinguished between costs that were wasted because of the adjournment itself and costs that would have been incurred regardless of the adjournment. Only costs directly caused by the vacation of the hearing dates qualified as "additional costs" under section 216. On that basis, the court awarded IHMS $259,271, being the costs identified under the headings "Adjournment Costs" and "Sundry Disbursements" in the certificates of assessment, together with the entirety of a second certificate.
For DHA, the court granted the stay and ordered costs under section 216(1), but deferred the quantification of those costs to the end of the proceedings under section 216(3), given that DHA's position on the particulars had been resolved by the case outlined in court on 2 May 2023.
Orders Made
In relation to IHMS:
- IHMS to inform the prosecutor of the further particulars required within 28 days.
- The prosecutor to provide proper particulars in response within a further 28 days.
- Proceedings stayed until the prosecutor properly particularises the allegations against IHMS.
- The prosecutor to pay IHMS costs of $259,271 pursuant to section 216(1) of the Criminal Procedure Act 1986 (NSW).
In relation to the DHA:
- The prosecutor to provide proper particulars conforming with the case outlined in court on 2 May 2023, within 28 days.
- Proceedings stayed until the prosecutor properly particularises the allegations against DHA.
- The prosecutor to pay DHA costs pursuant to section 216(1) of the Criminal Procedure Act 1986, in an amount to be determined at the end of the proceedings under section 216(3).
Proceedings adjourned for mention on 17 July 2024. Liberty granted to re-list on 14 days' written notice.
Key Takeaways
- The NSW Local Court confirmed it holds an implied power to grant a temporary stay of criminal proceedings where a defendant cannot identify the case it must meet due to inadequate particulars.
- Accompanying that implied power is a power to award costs. The court treated costs as properly incidental to the exercise of the implied jurisdiction, rather than an independent source of power being invoked separately.
- Under section 216 of the Criminal Procedure Act 1986, only costs that are causally connected to the adjournment itself qualify as "additional costs." Costs that would have been incurred regardless of the adjournment do not fall within this category, even if they were ultimately wasted.
- Providing combined particulars for separately charged defendants who owe different statutory duties and face different allegations was treated as a significant deficiency, contributing to the finding that the prosecutor had failed to properly particularise the charges.
- Repeated revision of particulars without addressing defendants' specific requests, and without identifying which earlier particulars were maintained, withdrawn, or replaced, was found to compound rather than remedy the inadequacy of the original pleadings.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (Cth), ss 19(2), 19(3)(c), 19(3)(f), 32
- Criminal Procedure Act 1986 (NSW), ss 216(1), 216(3)
- Legal Profession Uniform Law (NSW)
Cases:
- Caltex Refining Co Pty Limited v Maritime Services Board (NSW) (1995) 36 NSWLR 552
- Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56
- Director-General, Department of Environment and Climate Change v Gleeson & Ors (No 2) [2009] NSWLEC 200
- DPP v Boykin (Unreported) 21 June 1994
- DPP v Deeks (1994) 34 NSWLR 523
- Environment Protection Authority v McMurray [2024] NSWLEC 6
- GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157
- Grassby v R (1989) 87 ALR 618
- Grasso Consulting Engineers Pty Ltd v Safework NSW [2021] NSWCCA 288
- Hannes v Director of Public Prosecutions [2006] NSWCCA 373
- Johnson v Miller (1937) 59 CLR 467
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83
- La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201
- Macdonald v R; Maitland v R [2016] NSWCCA 306
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 189 FCR 189
- Regina v JS (No 2) [2007] NSWCCA 309
- R v Fleming (Costs) [2023] NSWSC 1258
- R v Mosley (1992) 28 NSWLR 735