Charles Fountain (ComCare) v The Commonwealth of Australia; Charles Fountain (ComCare) v International Health and Medical Services Pty Ltd

[2024] NSWLC 3

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Charles Fountain (ComCare) v The Commonwealth of Australia; ; Charles Fountain (ComCare) v International Health and Medical Services Pty Ltd [2024] NSWLC 3

Hearing dates:

7 November 2022, 1, 2 & 3 May 2023

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Civil

Before:

Shields LCM

Decision:

(1) Temporary Stay of proceedings granted.

(2) Costs of adjournment ordered.

Catchwords:

Courts-Local Court-Jurisdiction-Implied Power to grant Temporary Stay.

Courts-Local Court-Jurisdiction-Power to order costs when exercising Implied to grant Temporary Stay.

Costs- Costs on Adjournment-Additional costs under s 216 Criminal Procedure Act

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Legal Profession Uniform Law (NSW)

Cases Cited:

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, BC 940514

DPP vDeeks (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 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; 268 ALR 362

Regina v JS (No 2) [2007] NSWCCA 309

R v Fleming (Costs) [2023] NSWSC 1258

R v Mosley (1992) 28 NSWLR 735

R v Seller; R v McCarthy [2015] NSWCCA 76

S v R (1989) 168 CLR 226

Safework NSW v Edstein Creative Pty Ltd [2022] NSWDC 117

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited(No. 2) [2020] NSWDC 668

SafeWork v Poletti Corporation Pty Ltd [2019] NSWDC 791

Sims v Wran [1984] 1 NSWLR 317

Sutherland Shire Council v Benedict Industries Pty Ltd (No. 6) [2015] NSWLEC 106

Undershaft (No 1) Ltd v Federal Commissioner of Taxation (2009) 175 FCR 150; 253 ALR 280

Valentine v EID (1992) 27 NSWLR 615

Wash v Tattersall (1996) 188 CLR 77

Whittaker v Delmina Pty Ltd (1998) 87 IR 268 SC (VIC)

Category:

Procedural rulings

Parties:

Commonwealth of Australia as represented by the Commonwealth Director of Public Prosecutions.
Commonwealth of Australia as represented by the Department of Home Affairs.
International Health and Medical Services Pty Ltd.

Representation:

Counsel:

Mr. J. Hunter KC, with Mr. A Williams and Mr. B. Narula, for the Commonwealth Director.

Mr. T. Game SC, with Mr. C. Magee and Ms. L. Hutchinson, for the Department of Home Affairs.

Ms. K. Nomchong SC, with Mr. M. Shume, for International Health and Medical Services.

Solicitors:

Office of the Commonwealth Director of Public Prosecutions.

Australian Government Solicitor, for the Department of Home Affairs.

Seyfarth Shaw, for International Health and Medical Services.

File Number(s):

2021/00062122
2021/00062182

Publication restriction:

Nil

Judgment

1. These proceedings were commenced by the Prosecutor on 3 March 2021 by the filing of Court Attendance Notices (‘CAN’) against:

1. International Health and Medical Services Pty Ltd (‘IHMS’); and

2. The Commonwealth of Australia as represented by the Department of Home Affairs (‘DHA’).

2. In each case the CAN alleges breaches of the Work Health and Safety Act 2011 (Cth) (‘WHS Act’) in the operation of, and services provided within, the Villawood Immigration Detention Centre (‘VIDC’) in New South Wales, in February and March 2019 concerning the death of a detainee, Mr. Milad Aljaberi, in an apparent act of self-harm.

3. The proceedings against DHA and IHMS are to be heard and determined concurrently. Neither DHA nor IHMS has entered a plea, and both contend that it is not able to enter a plea knowing the parameters of the case it must meet until the Prosecutor provides certain further and better particulars, and, therefore, the continuation of the proceedings on the current pleadings results in substantial unfairness and will cause a significant waste of time, resources and costs by the parties and the Court.

Applications

4. By a Notice of Motion filed on 13 May 2022 IHMS seeks orders that:

1. The Prosecutor provide proper responses to specified requests for further and better particulars of the CAN and consequential orders; and

2. A stay of the proceedings against it until the particulars are provided; and

3. Costs of the Motion, including costs thrown away following the adjournment of the Motion when it was first listed for hearing.

5. By a Notice of Motion filed on 9 June 2022 the DHA seeks orders in substantially similar terms.

6. Each motion is supported by extensive affidavit evidence deposing to the history of the proceedings, the dealings between the Prosecutor, IHMS and DHA concerning provision of the requested particulars, and the related matters relevant to the applications now before the Court.

Background

7. The Villawood Immigration Detention Centre (‘VIDC’) is operated by the Commonwealth Government through the DHA. The DHA manages and controls the VIDC and employs a Superintendent and other DHA staff who are present on site. IHMS operates a medical centre within the VIDC pursuant to a contract with the DHA. The DHA also contracts with other entities to provide services within the VIDC, including Serco, which provides guarding, sentry and other services including rehabilitation services. In 2019, the VIDC could accommodate approximately 590 immigration detainees, although the numbers fluctuated daily.

8. Within the VIDC, the detainees are housed in various buildings within the housing compounds, where they are guarded, supervised, and monitored by Serco employees. The Medical Centre run by IHMS is located inside the VIDC and provides primary health care services through General Practitioners and Nurses. Detainees within the VIDC voluntarily attend the Medical Centre, and IHMS cannot compel attendance by the detainees or impose medical treatment on detainees.

9. Mr. Milad Aljaberi was a detainee at the VIDC from 12 February to 4 March 2019, where he appears to have ended his own life in an act of self-harm by hanging in the compound where he was accommodated.

10. Following the death of Mr. Milad Aljaberi, the Prosecutor commenced these proceedings against IHMS and the DHA pursuant to section 19(2) WHS Act.

History of the Proceedings

11. The Prosecutor commenced the proceedings against IHMS and the DHA by the filing and service of CANs in March 2021.

12. As originally commenced the proceedings each contained two sequences alleging breaches of section 19(2) based upon ss. 19(3)(c), (f) and 32 of the WHS Act. In each case the pleaded risk was that of suicide or serious self-harm to all the detainees within the VIDC between 12 February 2019 and 4 March 2019.

IHMS

13. In the original CAN, the Prosecutor alleged that there were five measures which were reasonably practicable, which IHMS should have taken to address that risk in Sequence 1, and a further four measures in Sequence 2.

14. IHMS took the view that the formulation of the measures pleaded in the CAN was both broad and obscure, and, in consequence, made multiple requests for further and better particulars.

15. The first request by IHMS was made on 15 December 2021. This request was not answered by the Prosecutor until 7 March 2022 having sought and been granted multiple extensions of time to respond.

16. IHMS took the view that the particulars provided by the Prosecutor were both ‘insufficient’ and ‘non-responsive’, and in consequence, on 16 March 2022, made a further request for particulars. On 31 March 2022, the Prosecutor responded that the particulars were adequate and that no further particulars would be provided.

17. On 5 April 2022, IHMS wrote to the Prosecutor again asserting that the particulars provided were inadequate and setting out the basis of that contention. The letter also set out the questions that IHMS contended should be answered by the Prosecutor. The Prosecutor did not respond to the latter request, which was in substance the third request for adequate particularisation of the charges against IHMS.

18. Consequent upon the failure of the Prosecutor to respond to IHMS, on 26 April 2022 the Solicitor for IHMS wrote to the Prosecutor and stated that an Application for a stay of these proceedings would be made if proper particulars were not forthcoming. IHMS relied upon the decision in Safework NSW v Edstein Creative Pty Ltd [2022] NSWDC 117.

19. The Prosecutor, again, did not respond and on 13 May 2022 IHMS filed the application now before the Court, which seeks orders for proper responses to the extent request for particulars and a temporary stay of the proceedings until those particulars are provided.

20. Between the filing of the Application and September 2022, IHMS took various steps in support of the Application including the preparation and filing of evidence and written submissions.

21. On 2 September 2022, the Prosecutor served:

1. A proposed Amended CAN that contained only one sequence that amalgamated all the pleaded measures from the former Sequence 2 into Sequence 1 and recast them as measures concerning performed work rather than matters of information, training, instruction or supervision, which had been the focus of the now omitted Sequence 2;

2. A document entitled ‘Further Particulars 2 September 2022’ that contained combined particulars addressed to both IHMS and DHA, and without any reference to the three requests for particulars made by IHMS; and

3. Written submissions that referred to the existing CAN, not the proposed Amended CAN, and apparently in reliance upon the September Particulars.

22. IHMS contend that the Prosecutor had therefore fundamentally changed its position concerning the particularisation of the charge or charges against IHMS in the following ways:

1. Rolling up the particulars for IHMS and DHA, even though they are separate defendants subject to different charges and who owed different duties, and therefore effectively treating them as co-defendants, when they are not;

2. The September Particulars stated its content supplemented the previously supplied particulars and the ‘Referenced Prosecution Summary’;

3. The September Particulars:

1. Did not state which particulars related to the case against IHMS and which particulars related to the case against DHA, and therefore effectively left both parties to guess at which parts of the particulars would be relied upon in the case against them;

2. Gave bare cross-references to identified documents in the Brief of Evidence, without any internal references to those documents, which again effectively left IHMS in the position of guessing at the part or parts of those documents upon which the Prosecutor would rely;

3. Did not state which parts of the March Particulars had either changed, been omitted or otherwise recast, again effectively leaving IHMS and DHA to try to identify the extent to which the March Particulars were relied upon by the Prosecutor.

23. In apparent recognition of the matters set out above, on 14 October 2022, IHMS wrote to the Prosecutor seeking to clarify the above matters, effectively making its fourth request to the Prosecutor for proper particulars.

24. By this time the applications now before the court were listed for hearing for three days commencing on 7 November 2022. On 18 October 2022 the Applications were listed before the Court for directions and the Prosecutor stated that it was ready to proceed.

25. Both IHMS and DHA, acting upon the Prosecutor’s statement of readiness, took further steps in preparation for the hearing including by the preparation of written submissions, which, in the case of IHMS, were filed on 28 October 2022.

26. On 28 October 2022, the Prosecutor served a further document entitled ‘Consolidated Particulars 13 October 2022’ and a letter containing further responses to the matters raised by IHMS in its letter dated 14 October 2022.

27. The October Particulars differed from the September Particulars in the following ways:

1. The document continued the previous practice of referring to the existing CAN and not the proposed Amended CAN;

2. The document was expressed to be a ‘consolidation’ of all previous responses; however, it included a ‘summary’ of the Prosecutor’s previous replies. Although those replies were not identified, which, IHMS contends, meant that it could not know whether the Prosecutor now relied upon the summary of the previous replies, or the previous replies themselves, or both;

3. The document, again, did not identify which particulars were relied upon in its case against IHMS and which particulars were relied upon in its case against DHA, and therefore effectively rolling up all particulars against both;

4. The document contained references to ‘evidence’, which is presumably a reference to items in the Brief of Evidence, and, again, those references referred to other documents without internal references.

28. On 2 November 2022, IHMS again wrote to the Prosecutor raising the above matters and seeking clarification, and thereby effectively made its fifth request for proper particulars of the charge or charges against it.

29. On 4 November 2022, the Prosecutor served a further document entitled ‘Amended Consolidated Particulars on 4 November 2022’.

30. The November Amended Consolidated Particulars differed from the September Particulars and the October Particulars in the following ways:

1. The document referred the proposed Amended CAN;

2. The document was expressed to be a consolidation of all prior responses; however, it also contained a ‘summary’ of previous replies (mis-identified as to date) which, IHMS contends, meant that it could not know whether the Prosecutor now relied upon the consolidation alone, or the summary of the previous replies, or the previous replies themselves, or all of them;

3. The document continued the Prosecutor’s approach of not identifying which particulars were relied upon in its case against IHMS and which particulars were relied upon in its case against DHA, and therefore effectively rolling up all particulars against both;

4. The document continued the Prosecutor’s approach of giving references to ‘evidence’, which is, again, presumably a reference to items in the Brief of Evidence, and, again, those references referred to other documents without internal references.

31. On 4 November 2022, IHMS wrote to the Prosecutor seeking confirmation that the November Amended Consolidated Particulars replaced all the previous particulars, and thereby made its sixth request for proper particulars of the charge or charges against it. The Prosecutor did not respond.

32. On Saturday 5 November 2022, IHMS wrote to the Prosecutor and stated that it should seek an adjournment of the hearing of the Applications, in conformity with the Prosecutor’s obligations to be fair to the accused and to assist the Court. At 23.32 on that day, the Prosecutor declined to make that application.

33. On 7 November 2022, the Applications were listed for hearing, and both IHMS and DHA sought an adjournment, which was granted. Orders were made:

1. Granting leave to the Prosecutor to file Amended CANs against IHMS and DHA;

2. Vacating the final hearing over four weeks listed to commence on 17 April 2023; and

3. For the provision of further particulars of the charges and consequential matters in preparation for the hearing of the Applications.

34. On 16 November 2022, IHMS again wrote to the Prosecutor stating the issues contended should be addressed in the further particulars ordered by the Court.

35. On 16 December 2022, the Prosecutor served a further version of the particulars, which abandoned large tracts of the many iterations of the previously supplied particulars.

36. At the hearing of the Application, IHMS maintained its contention that the particulars provided by the Prosecutor, in the form of the December Particulars, remained inadequate. IHMS now presses for an amended form of relief, being:

1. The Prosecutor to provide proper particulars of the alleged criminal conduct in the Amended CAN including responses to the particulars sought in schedule 1 to its written submissions dated 9 February 2022;

2. The Prosecutor, after compliance with (1) above, are to file and serve:

1. A marked up and clean copy of a proposed Third Amended CAN engrossing all the further and better particulars; and

2. An updated Prosecution Summary of Facts reflecting the proposed Third Amended CAN;

3. The proceedings against IHMS be stayed until the Prosecutor complies with the above orders;

4. The Prosecutor pay IHMS’ costs of the Application.

DHA

37. The proceedings against DHA have taken a broadly similar course to the proceedings against IHMS outlined above, although perhaps not as complex.

38. After service of the original CAN on DHA, the Prosecutor served a Brief of Evidence containing 637 items totalling 7776 pages. This brief included a copy of the Immigration Detention Health Services Contract for the management and provision of health services to the detainees at VIDC between the Commonwealth and IHMS.

39. On 20 September 2021, DHA made a request for further and better particulars of the charges against it. Between October 2021 and February 2022, DHA made five further separate enquiries of the Prosecutor concerning the provision of those particulars, to which it received no substantive response.

40. On 11 February 2022, DHA made an application in substantially similar terms to that brought by IHMS.

41. The first substantive response to the DHA by the Prosecutor concerning the requested particulars is dated 25 February 2022.

42. On 1 April 2022, the DHA wrote to the Prosecutor stating that, in its view, the prosecutor’s response was not a serious attempt to particularise the case against the DHA.

43. On 16 May 2022 the Prosecutor declined to provide any further particulars.

44. The DHA now seeks relief in substantially the same terms as the relief sought by IHMS.

Principles – Requirement for Adequate Particulars

45. In Johnson v Miller (1937) 59 CLR 467, the High Court considered the issue of uncertainty in criminal charges and held that a defendant has the right to know, and consequently the prosecutor is required to identify, not only the legal nature of the offence charged but also the particular act, matter or thing alleged as the foundation of the charge, so that the Court may know what is to be tried, and the defendant may exercise its fundamental rights; per Dixon J, at 489, Evatt J, at 497-8. The ratio and reasoning in Johnson v Miller were approved by the High Court in S v R (1989) 168 CLR 226, per Toohey J, at 282, and Gaudron and McHugh JJ, at 284-285.

46. In S v R, Gaudron and McHugh JJ said, at 286-287:

“Prejudice is the focus of the consideration when the question is whether some order should be made as to conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. … when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice …”.

47. Similarly, in Wash v Tattersall (1996) 188 CLR 77, Kirby J held, at 110 – 111, that the above principles oblige prosecutors, at the outset of criminal proceedings, to accurately define each offence to be prosecuted and to identify the elements of the offence necessary for conviction. It was held that strict compliance was required for a fair trial, citing Johnson v Miller and S v R.

48. The High Court returned to the issue in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, in the context of particulars in a work, health and safety prosecution, where the majority said, at [26]:

“In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identify the essential factual ingredients of the actual offence.”

49. Concerning the requirement for particulars in a work, health and safety prosecution the majority in Kirk held the following, at [28] to [30]:

1. The statements of the offences were deficient because the particulars did not identify what measures the defendant could have taken, but did not take, nor did they identify an act or omission which constituted a contravention of the relevant duty provisions, at [28];

2. Section 11 of the Criminal Procedure Act 1986 (NSW) relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions, citing Dixon J in Johnson v Miller, at [29]; and

3. The matter should not have proceeded without further particularisation of the acts and omissions said to found the charges, at [30].

50. The approach in Kirk has been interpreted and applied as requiring the prosecutor to identify, with clarity and precision, particulars of the breach alleged to give rise to a failure to comply with the health and safety duty; Grasso Consulting Engineers Pty Ltd v Safework NSW [2021] NSW CCA 288, at [33].

51. Shortly after Kirk, the NSW Court of Appeal summarised the effect of the decision in GPI (General) Pty Ltd v Industrial Court (NSW) [2011] NSWCA 157 in the following way, at [32] to [35]:

“[32] The High Court decision in Kirk does establish that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the measures that should have been taken to address the relevant risks.

[33] However, it did not decide that this requirement displaced ss 11 and 16(2) of the CP Act, which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of “indictment” given by s 15 of the CP Act. Rather, the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26]-[30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation.

[34] It is true that in John L, a majority of the High Court held that a lack of particularity in a charge as originally brought was fatal, but it also held that provisions of the nature of ss 11 and 16(2) of the CP Act did not apply. In Johnson v Miller (1937) 59 CLR 467, it was plainly contemplated that the common law requirement of particularisation could be satisfied by various means, not limited to full particularisation in the complaint or charge itself: see at 490 per Dixon J, at 497-498 per Evatt J, and at 501 per McTiernan J.

[35] Accordingly, in the present case, if the particulars of the charges as given in the original charges were deficient, particulars could be provided in other ways.”

52. The decision in Kirk has been applied in a way which means that identification of the particulars of the breach, with clarity and precision, is essential, to specify the particulars of the acts or omissions which are alleged to give rise to a failure to comply with the health and safety duty; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288, at [33], citing to Kirk, at [16].

53. Section 175(3)(b) of the Criminal Procedure Act 1986, requires the originating process to ‘briefly state the particulars of the alleged offence’. The nature of that obligation was considered by the Court of Appeal in Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83, at [46], where Campbell J said:

“ …the particulars of an offence are a statement of the way in which, in the circumstances of the particular case, the prosecutor alleges that the general standard of conduct imposed by the provision of the law that creates the offence has been breached. Because particulars are dependent on the circumstances of the individual case in this way, the particulars of an offence are not formulaic, and are likely to differ from one CAN to another, even where one is comparing CANs that all charge the same offence. Another consequence of particulars being dependent on the circumstances of the individual case is that there can be legitimate differences of opinion about whether proper particulars have been provided. It is possible to state the manner in which a case is proposed to be put at higher, or lower, degrees of particularity. It is ultimately a matter of judgment, not a simple matter of fact, as to whether adequate particulars have been supplied of the allegation that a CAN makes of commission of an identified offence. That judgment is one that must be formed bearing in mind the purpose of particulars, as well as the specific offence that is alleged”.

54. The Court in Knaggs went to approve the approach in Sims v Wran [1984] 1 NSWLR 317, at 321-322, to the effect that the fundamental principle concerning particulars is that a party must be made aware of the nature of the case he is called upon to meet, and the question is whether that party has adequate knowledge of what the other party alleges are the facts.

55. Other examples of the application of the above principles include Hannes v Director Public Prosecutions [2006] NSWCCA 373, at [392] to [393].

56. The principles that emerge from the above authorities concerning precision and particularity in the pleading of criminal offences, may be summarised as:

1. The Prosecutor must plead its case with sufficient particularity, or the charge will be duplicitous or uncertain;

2. A defendant is entitled to know the particular acts relied upon as the foundation of the charge as a fundamental matter of fairness; and

3. If a trial proceeds when there is uncertainty as to the charge, the question is whether “there has been a blemish on the trial amounting to a substantial miscarriage of justice”, with the focus on prejudice suffered by the defendant.

Principles – Stay

57. The Prosecutor accepts that this Court has an implied power to grant a temporary or conditional stay of a criminal prosecution within its jurisdiction; Grassby v R (1989) 87 ALR 618, at 628 to 629.

58. The principles concerning the power to grant a temporary or conditional stay are summarised in MacDonald v R; Maitland v R [2016] NSWCCA 306, at [140], per Bathurst CJ (Hulme and Bellew JJ agreeing):

“It is well-established that the court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 47. However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences: at [91]-[92], [114]; see also Redacted Judgment [2015] NSWCCA 281 at [108]-[110]”.

59. A temporary or conditional stay can be ordered where the court is of the view that it is inappropriate to grant a permanent stay but notwithstanding relief it is necessary to ensure a fair trial; R v Seller; R v McCarthy [2015] NSWCCA 76, at [128], per Bathurst CJ. Fullerton and Bellew JJ agreeing.

60. In Marwan v Director of Public Prosecutions [2019] NSWCCA 161, at [22] to [26], Leeming JA discussed the apparently differing formulations in the jurisprudence concerning the circumstances in which a temporary stay might be ordered:

“The formulation of the test to be applied when seeking a temporary stay

[22] There is arguably some divergence in the authorities which formulate the test to be applied in such a case.

[23] On the one hand, the applicant relied upon the formulation of principle in R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128], and applied in Leiper v R [2018] NSWCCA 117 at [42]:

‘The question of whether a temporary stay should be imposed arises if the Court is of the view that it is inappropriate to grant a permanent stay but, notwithstanding, some relief is necessary to ensure a fair trial.’

[24] On the other hand, the Crown relied upon a potentially lower threshold, namely, whether there was “a tangible risk that the trial would be unfair”, which was treated in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 359 ALR 142 as being a lower standard. That seems to derive from Re K [2002] NSWCCA 374 at [9]–[10]. This was the formulation employed by the primary judge.

[25] However, in Gould v Director of Public Prosecutions (Cth) at [63]–[64], Basten JA (with the agreement of Johnson and Adamson JJ) applied a test formulated by reference to whether it had been shown that “the trial is likely to be unfair”: at [63]-[64], using language drawn from Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57.

[26] No submissions were made as to whether these were merely verbal differences, or went to the substance of the test. It is quite possible that there is no material difference between them, although Gould suggests that the “tangible risk” formulation is a lower standard which is more readily satisfied. However, it is neither necessary nor appropriate to resolve that question in this urgent appeal.”

61. SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 is a recent case which considered an application by a defendant for the stay of proceedings on the basis that the prosecutor had not provided adequate particulars of the charges under the identical provisions of the Work Health and Safety Act 2011 (NSW). In Edstein, Russell DCJ said, at [49] to [50], that a prosecutor is obliged to provide proper particulars, so the defendant knows the case which it has to meet, even where the offence is properly classified as a continuing offence. His Honour found, at [49], that the facts, matters, and circumstances relied upon by the prosecutor were clouded in doubt and accordingly it was appropriate to order a temporary stay of the proceedings until proper particulars were provided.

The Hearing

62. At the hearing of the Applications, the relevant material is contained in a Court Book (‘CB’), which was tendered with the consent of all parties and marked as Exhibit 1. The argument proceeded based on the December Particulars; part of annexure NPN-38, at CB 22G.

63. IHMS and the DHA both contended that the December Particulars, including the internal reference to supplemental reliance on the Prosecution Summary dated 30 July 2021, remain inadequate and a temporary stay is necessary. Concerning the Prosecution Summary, both parties contended that it is unfair and inappropriate that they should have to guess at which parts of that document are relied upon by the Prosecutor as particulars, noting that much of its contents have no application to the current version of the particularised charges.

64. The Prosecutor’s position is that the particulars provided are sufficient and consistent with satisfaction of its obligation in conformity with the principles outlined above.

65. All parties filed written submissions concerning the substance of the Applications, and orally addressed. The written submissions for IHMS include a Schedule that sets out requests for particulars that remain outstanding and which it contends are necessary for it to understand the case that it must meet at trial.

IHMS

66. IHMS’ written submissions raise many issues concerning the December Particulars, including:

1. The use of the formulation ‘any one or more’ in the pleadings gives rise to significant unfairness and prejudice;

2. The particulars are internally inconsistent concerning the time and date of the alleged offence;

3. The continued use of terms such as ‘mental health care’, ‘risk of serious self-harm’, ‘deliver’, ‘provision of’ and references to pleaded measures as ‘including’ certain matters without further definition of the entire content of the measure;

4. The use of the term ‘Mental health Clinicians’, which the December Particulars define as stated professions and the ‘Mental Health Team’, which a referenced document in the Brief of Evidence describes as “a mix of mental health care professionals appropriate to the mental heath needs of each facility”;

5. The use of the terms ‘adequate mental health care’ and ‘sufficient clinical skills and expertise’ with no definition or explanation;

6. Unanswered requests for particulars of the allegation that IHMS was required to maintain daily ‘Supportive Monitoring and Engagement’ meetings including where and when such meetings should have been held and whether any circumstance or information necessitated the holding of such a meeting, and whether such meetings require the attendance of all stakeholders or could proceed in the absence of some stakeholders;

7. The lack of any definition or explanation of the allegation that IHMS was required to provide “information necessary for the management and reintegration of detainees after determination or discontinuance of a level of Supportive Monitoring and Engagement”, including:

1. The nature of the ‘information’ and when, to whom and how it should be provided;

2. The strategies and content of a ‘reintegration plan’; and

3. How those matters related to Mr. Aljaberi;

8. What constitutes “adequate provision and assessment of in-service review and training of mental health clinicians”.

67. IHMS submits that, in the absence of proper particulars, it cannot address the issue of what is or is not reasonably practicable, or consequently enter a plea.

‘Any one or more’

68. At various places, including at paragraphs [21], [27], [32], [36], [39], [42], [45], [49] and [52], the December Particulars allege that IHMS should have taken ‘any one or more’ of the alleged measures. IHMS contend that it is not clear whether the Prosecutor is alleging that any one of the pleaded measures would discharge the duty, or whether Prosecutor is alleging that a combination of the diffusely pleaded measures is necessary to discharge the duty.

69. The Prosecutor relies on the decision of Russell DCJ in SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSW DC 668, at [53] – [54], to support the submission that the use of the phrase ‘any one or more’ in the Particulars is a regular and permissible form of pleading or particular.

70. It is well established that an inferior court is not bound by the decision of an inferior court of higher curial gradation and that the doctrine of stare decisis does not apply as between two inferior courts; Valentine v EID (1992) 27 NSWLR 615, at 620-622, per Grove J; Whittaker v Delmina Pty Ltd (1998) 87 IR 268 SC(VIC), at [17] to [18]. It follows that a decision of the District Court is not binding in this Court; and that the principle of judicial comity does not require an inferior court to follow a decision of an equal ranking court when convinced that the latter decision is wrong; Rawson Finances Pty Ltd v Deputy Cmr of Taxation (2010) 189 FCR 189; 268 ALR 362; at [56]; Undershaft (No 1) Ltd v Cmr of Taxation (2009) 175 FCR 150; 253 ALR 280, at [68]-[88] ; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, at 204.

71. The difficulty with the decision in SafeWork NSW v McConnell Dowell Constructors is the absence of any articulation of principle or reference to authority. While it is true that the formulation may be understood in the way set out by his Honour, it is also capable of being properly understood in other ways and is, therefore, latently ambiguous. Another difficulty is that the number of potential outcomes, by combination of elements within a closed class, exponentially rises with the number of elements, which means that a defendant is confronted by a myriad of ways, in different combinations, in which the case might be put, and it is therefore required to answer. Uncertainty, and consequent unfairness, is inherent in those circumstances. For those reasons, and with the greatest respect to his Honour Russell SC DCJ, I do not propose to adopt or follow his decision in SafeWork NSW v McConnell Dowell Constructors.

72. In argument, Senior Counsel for the Prosecutor stated that the case against IHMS is that any one of the measures would have adequately minimised the risk, each of the measures were reasonably practicable, and IHMS could take any of them. If that is the case to be put then the use of the formulation, and particularly the words ‘or more’ is misleading because it expressly introduces the possibility of combinations in circumstances where the Prosecutor’s case is that any one of the stated measures would be sufficient, and, therefore, a combination is not necessary to discharge the duty. It is difficult to understand why, in those circumstances, the particular is not expressed as Senior Counsel put it.

73. For those reasons, the use of the phrase ‘any one or more’ of the pleaded measures lacks clarity and precision, and introduces a level of uncertainty, that is inconsistent with the principles of pleading set out above.

Time and Date of the Alleged Offence

74. IHMS contends that the particulars are internally inconsistent concerning the time and date of the alleged offence, and it is not clear whether the Prosecutor is alleging a single breach for the Charge Period (as defined in the particulars) or two or more separate breaches. On any reading of the December Particulars, there are patent inconsistencies within the particulars concerning when it is alleged pleaded measures should have been taken; for example, Particulars 6(i) and 6(ii) contain clearly contradictory statements about date and time.

75. Other particulars use the phrase “Prior to about …” and “at or around” a stated time and date without any explanation of the temporal proximity the Prosecutor alleges is required to discharge the duty; for example, Particulars 6(iii) – (ix). Formulations of that kind are inherently uncertain and lacking in the precision of pleading required by the authorities.

76. IHMS’ complaints concerning the inherent ambiguity and consequent uncertainty that attends the use in the particulars of the various terms, words and phrases set out above is both well-made and valid. None of the terms, words and phrases have a sufficiently precise meaning to satisfy the requirement for clarity and precision in pleadings as prescribed in the authorities.

DHA

77. The DHA in its written submissions raised issues that were broadly like the kinds of matters about IHMS complaints, however because of the events in Court during argument on 2 May 2023, it is not now necessary to deal with those issues.

78. On 2 May 2023, Senior Counsel for the Prosecutor outlined the case to be put against the DHA in which a principal element was one identified document. In reply, Senior Counsel for the DHA said the case as outlined in Court was not contained within any previous version of the Prosecutor’s particulars and the document referred to was not one contained within the Brief of Evidence. After some uncertainty, and obtaining instructions, Senior Counsel for the Prosecutor agreed that the document central to the case as outlined in Court was one upon which the Prosecutor had previously disavowed any reliance.

79. After further consideration, Senior Counsel for the DHA informed the Court that if the case as outlined in Court was reduced to an appropriate set of particulars that it would be a satisfactory and sufficient basis on which his client could proceed.

Conclusion – Adequacy of Particulars

80. It follows from the reasons above, that I am not satisfied that the Prosecutor has discharged its essential obligation to identify the particulars of the breach, with clarity and precision, and to sufficiently specify the particulars of the acts or omissions which are alleged to give rise to a failure to comply with the health and safety duty; see Kirk, at [16] and Grasso Consulting Engineers Pty Ltd v SafeWork NSW, at [33]. In each case, the Prosecutor should further and proper particulars.

Should Temporary Stays be Granted?

81. As a result of the conclusions set out above, the question arises whether this Court should exercise its implied power to grant a temporary or conditional stay of the proceedings to avoid further unfairness to IHMS and DHA arising from the absence of proper particulars of the charges and to ensure a fair trial; MacDonald v R; Maitland v R, at [140]; Marwan v Director of Public Prosecutions, at [22]. That consideration is informed by the matters discussed in Kirk, at [28] to [30], and its ultimate conclusion that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges, at [30].

82. In this context, the history of the proceedings is significant. The proceedings were commenced in March 2021, nearly three years ago, and the parties have been in dispute concerning the adequacy of the particulars ever since, and in consequence no pleas have been entered. IHMS has made at least six separate requests for proper particulars and have gone to considerable lengths to explain why, in its view, those particulars are essential. The Prosecutor has now given and then approbated or reprobated many versions of the Particulars that finally culminated in the December Particulars upon which argument proceeded. The same pattern has occurred concerning the DHA, save that the current case that the Prosecutor now intends to put against the DHA was first articulated orally in Court at the hearing of the Applications, and principally by reference a document upon which the Prosecutor had previously disavowed any reliance.

83. It is also significant that during the events described above, frankly extraordinary amounts of costs have been incurred by the parties, much of which has been effectively wasted by the constantly shifting basis of the Prosecutor’s case as set out in the multiple iterations of the particulars.

84. In that context, this is a clear case of the kind discussed in Kirk: the matter should proceed no further until proper particulars are given by the Prosecutor, and where a temporary or conditional stay is justified and necessary to avoid further unfairness to the defendants and ensure a fair trial.

Costs of the Adjourned Hearing – Section 216 Criminal Procedure Act 1986 (NSW)

85. Both IHMS and the DHA seek an order for costs of the adjourned hearing of the Applications on 7 November 2022, and the consequently vacated final hearing over four weeks commencing on 17 April 2023, pursuant to section 216 of the Criminal Procedure Act1986.

R v Fleming (Costs) [2023] NSWSC 1258

86. While these matters were reserved for decision, the Supreme Court delivered a decision in R v Fleming (Costs) [2023] NSWSC 1258. That case involved a prosecution on indictment for four offences contrary to Commonwealth and State charges which concluded by a directed verdict of not guilty concerning the Commonwealth charge and other verdicts concerning the State charges. Wilson J then dealt with the question of costs and Her Honour concluded that there is no power for a court in this State in exercising federal criminal jurisdiction to award costs against the Commonwealth Director, at [70], because while section 68 of the Judiciary Act 1903 (Cth) permitted State laws to be picked up and applied by State courts exercising federal jurisdiction, there was nothing in section 68 or any other provision in the legislation that referred to a power to award costs against the Crown in criminal matters and, therefore, State cost legislation was not picked up by section 68 and thus could not be applied to federal offences prosecuted in State courts, at [72].

87. On 31 October 2023, this Court gave leave to all parties to make written submissions on the effect of the decision in Fleming on the extant applications for stays of the respective proceedings and the associated applications for costs against the Commonwealth Director. All parties filed written submissions contending, for slightly different reasons, that this Court has power to make an award of costs under section 216 against the Commonwealth Director.

88. The position of the Commonwealth Director may be summarised as follows:

1. This Court does, and is empowered to, exercise Federal jurisdiction concerning summary offences contrary to Commonwealth law;

2. The offences prosecuted against IHMS and the DHA are summary offences as they are not punishable by imprisonment;

3. This Court exercises summary jurisdiction concerning people charged with summary offences contrary to the law of New South Wales and, by section 68 (2) of the Judiciary Act1903 exercises like jurisdiction concerning people who are charged with offences against the laws of the Commonwealth;

4. Section 68 (2) of the Judiciary Act 1903 is the exercise of legislative power conferred on the Commonwealth by section 77 (iii) of the Constitution and it invests State courts with Federal jurisdiction in the class of matters set out in section 76 (ii) which comprises matters arising under Commonwealth laws which create offences;

5. Section 216 Criminal Procedure Act is not inconsistent with the Constitution or any Commonwealth law that provides for the circumstances in which costs may be awarded by this Court exercising Federal jurisdiction concerning a summary offence;

6. The decision in Fleming did not concern the exercise of Federal jurisdiction for a federal summary offence, it makes no reference to the provisions of the Criminal Procedure Act 1986 nor does it appear that there was any argument about whether the costs provisions in the Criminal Procedure Act that apply to summary proceedings applied in the Federal jurisdiction. Accordingly, the ratio decidendi in Fleming does not apply in the Federal jurisdiction where this court exercises jurisdiction concerning persons charged with Federal summary offences;

7. At common law the Crown neither received nor paid costs, however, in all States and Territories in Australia the common law rule concerning summary proceedings has been displaced by statute;

8. Although, in principle, it may be possible for section 216 to operate of its own force to Federal summary proceedings, and, it is open to be argued that section 216 is a law that is determinative of the right of persons, as opposed to governing the manner of exercise of the Court’s jurisdiction, it is unlikely that section 216, properly construed in its context, was intended by the New South Wales Parliament to apply to Commonwealth summary offences;

9. Section 216 is better characterised as a law that governs or regulates the Court’s exercise of Federal jurisdiction concerning federal summary offences, and, accordingly, is picked up and applied in federal jurisdiction by either section 68, or alternatively section 79 of the Judiciary Act1903 (Cth).

89. It is, therefore, the common position of all parties that the decision in Fleming does not prevent this Court making an order for costs under section 216 Criminal Procedure Act.

90. The material upon which IHMS relies in seeking the costs of the adjournment is:

1. Tabs 1 to 22C inclusive of the Court Book (‘CB’);

2. The affidavits of:

1. Nicholas Peter Neill, dated 27 March 2023, at CB 22K;

2. Gabrielle Marie Wilson, dated 27 April 2023, at CB 35;

3. Christopher John Grisenti, dated 27 April 2023, at CB 36;

4. Written submissions on costs, at CB 22J.

91. The DHA relies on the same material as IHMS, supplemented by the affidavit of Daniel Whitten, affirmed on 28 April 2023, at CB 38.

92. The Prosecutor relies upon:

1. Affidavit of Rachel Wang affirmed on 26 April, at CB 34

2. Further affidavit of Rachel Wang, affirmed on 28 April, at CB 37; and

3. Written submissions, at CB 22H and 22I.

93. The Prosecutor conceded that IHMS and the DHA are entitled to an order for costs of the adjournment under section 216 Criminal Procedure Act 1986. The issues argued were the quantum and whether the costs claimed by IHMS and the DHA have the required causal connection to the adjournment of the hearing of the Applications on 7 November 2022 to be properly characterised as ‘additional costs’ and the quantum of those costs, based on the Report of Gillespie Whelan Legal Cost dated 27 April 2023, annexed to the affidavit of Rachel Wang dated 28 April 2023 (’the Costs Report’).

94. Section 216 of the Criminal Procedure Act 1986 provides:

216   Costs on adjournment 

(1)    A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.

(2)    An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

(3)    The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.

(4)    An order may be made whatever the result of the proceedings.

Principles – Section 216

95. The meaning of ‘additional costs’ was considered by Preston J in Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56, at [105] – [142], in the context of section 257F of the Criminal Procedure Act 1986, which is identical to section 216.

96. The hearing of the Applications on 7 November 2022 was adjourned on the application of IHMS and the DHA, after the Prosecutor declined to seek the adjournment, and the precondition in section 216 (1) is satisfied; Trico, at [106].

97. Section 216 (2) is an express limitation on the power under subs (1). An order may only be made under subs (1) if the court is satisfied of the matters specified in subs (2); Trico, at [107]. Here, as in Trico, the parties are at issue concerning the interpretation of the words ‘additional costs’ in subs (2).

98. The issue of construction in Trico was whether section 257F(2) required a causal connection between the ‘additional costs’ and the adjournment, or, alternatively, the reference to ‘additional costs’ was simpliciter a reference to costs incurred because of the unreasonable conduct or delay.

99. The facts in Trico were broadly like the circumstances of this case; the Council had commenced a prosecution against the defendant that ultimately required amendment, on the second day of the trial, because of factual errors. Trico contended that this unreasonable conduct and delay of the Council, in delaying making application for leave to amend the summons to the second day of the trial, caused it to incur costs that it would not have had to incur if the Council had not acted or delayed unreasonably. The costs claimed included those of qualifying and retaining an expert whose evidence was no longer required after the amendment and the costs of the delay of the hearing and a contested application for amendment.

100. The Council accepted that the pre-condition in section 257F (1) was satisfied but argued that none of the categories of costs claimed by Trico fell within the limitation in section 257F (2), as none of them were ‘additional costs’ incurred by reason of the adjournment of the proceedings.

101. The Court ultimately concluded, at [136], that section 257F (2) requires the costs to have two causal relationships:

1. The cost must be incurred by the matter being adjourned, making them ‘additional costs’; and

2. The ‘additional costs’ must be incurred because of the unreasonable conduct or delays of the party against whom the order is made.

102. The Court explained the required casual connection, at [133] to [135]:

“[133] The reference point for determining whether costs are “additional costs” is the adjournment of the matter, not the unreasonable conduct or delays of a party. A cost is anadditional cost if it will be incurred if the matter is adjourned but will not be incurred if the matter is not adjourned. It is an “additional” cost in the sense that it is additional to the costs incurred if there is no adjournment.

[134] It is only these “additional costs” that the court can order a party to pay. If the costs incurred are not “additional costs” they do not fall within subs (2) and cannot be the subject of an order for costs under subs (1).

[135] However, there is a further limitation in subs (2) - the additional costs must have been incurred “because of the unreasonable conduct or delays of the party against whom the order is made”. An order under s 257F(1) cannot be made with respect to every cost that is an additional cost, only those additional costs that are incurred because of the unreasonable conduct or delays of the party against whom the order is made. If the court is satisfied that the additional costs are incurred because of some other cause than the conduct or delay of the party against whom the order is made, or because the conduct or delay of that party falls short of being unreasonable conduct or delay, then the required causal nexus in subs (2) will not be met and the court has no power to make an order that the party pay those costs.”

103. In argument, IHMS relied on SafeWork v Poletti Corporation [2019] NSWDC 791, at [86] to [91], as authority for the proposition that where a party relies upon material or evidence, and that reliance is later abandoned, the costs thrown away by the other party in responding are ‘additional costs’. Poletti was a prosecution under the Work Health & Safety Act 2011 (NSW) where the prosecutor relied upon, and then abandoned, an expert’s report, where the initial reliance caused the vacation of the hearing date. In a judgment dealing with, inter alai, costs under section 257F of the Criminal Procedure Act1986 Scotting DCJ found that the prosecutor should have made the decision not to rely on the experts report much earlier and the costs incurred by the defendant in responding to the prosecutor’s expert report were ‘additional costs’, at [89] to [90]. IHMS submits, by analogy, that the Prosecutor should have determined that it relied on the December Particulars and made the amendments to the CANs earlier and then not put the defendants to the cost of dealing with all the earlier iterations.

104. IHMS also relied on Sutherland Shire Council v Benedict Industries Pty Ltd (No. 6) [2015] NSWLEC 106, as establishing that the words ‘has incurred’ in section 257F(3), having regard to context and purpose of the provision, are to be interpreted as “including costs that have been incurred and that will, as a matter of certainty, have to be incurred, but not costs that may occur”, at [20].

Amounts Claimed by IHMS & DHA

105. Both IHMS and DHA rely on extensive affidavit evidence concerning the costs that each has incurred in the proceedings to date, including by reason of the adjournment.

106. IHMS claims the costs set out in:

1. A Certificate of Assessment dated 24 March 2023, as ‘additional costs’ under section 216; and

2. Certificate of Assessment 21 April 2023, as the cost of the costs application made under section 216;

107. This was attached to the Affidavit of Christopher Grisenti dated 27 April 2023 as exhibits CG-1 and CG-2 respectively.

108. The Certificates of Assessment prepared by Mr Grisenti are expressed to on a party / party basis assessed in accordance with section 216 and sections 172(1) and (2) of Legal Profession Uniform Law (NSW):

1. The Certificate of Assessment dated 24 March 2023 and breakdown of the assessment in the following categories:

1. Notice of Motion Costs;

2. September Particulars Costs;

3. Reply Submissions Costs;

4. October Particulars Costs;

5. November Particulars Costs;

6. Adjournment Costs;

7. Sundry Disbursements – the costs of the assessments by Mr Grisenti.

2. The Certificate of Assessment 21 April 2023 assesses the costs of the Cost Application.

109. DHA claims the costs set out as estimates in the Affidavit of Samual Whitton dated 28 April 2023.

Power to Award Costs When Exercising Implied Jurisdiction

110. IHMS and the DHA both seeks costs of the Application. As noted above, the primary relief sought in the Applications is a temporary stay of the proceedings if, and until, the Prosecutor provides proper particulars of the charges. This Court is a court of statutory and limited jurisdiction, and it has no legislative power to grant a stay. As noted earlier, all parties agree that this Court has an implied power to grant a temporary or conditional stay of a criminal prosecution within its jurisdiction; Grassby v R.

111. The issue of whether this Court, when exercising an implied power, also has power to make a costs order arising from that application was recently considered in Environment Protection Authority v McMurray [2024] NSWLEC 6, at [104] to [105]. McMurray was an appeal to the Land & Environment Court from a decision of the Local Court to stay a summary prosecution of an offence under the Protection of the Environment Operations Act 1997 (NSW). Duggan J, at [104] and [105], stated that section 212 of the Criminal Procedure Act 1986 provides that the Court may only award costs in criminal proceedings in accordance with the Act, and that there is no express power to make an award where the Local Court ordered a stay of proceedings. Her Honour then turned to the authorities that consider whether an implied power is accompanied by a power to award costs, including Regina v JS (No 2) [2007] NSWCCA 309 and Director- General, Department of Environment and Climate Change v Gleeson & Ors (No 2) [2009] NSWLEC 200. Those cases established that a Superior Court of Record has the power to control abuse of its processes as part of its implied jurisdiction and, as an incident of that power, to award costs, except when prohibited by statute, and in those cases, there was no such prohibition. Duggan J then concluded that section 212(1) of the Criminal Procedure Act limits the cost making power in the Local Court to the powers conferred by that Act and, accordingly, it did not have power to make a costs order after exercising its implied power to stay the proceedings. The approach in McMurray is consistent to that adopted in earlier decisions concerning the same issue; R v Mosley (19912) 28 NSWLR 735; DPP v Deeks (1994) 43 NSWLR 523 and DPP v Boykin 21 June 1994, BC 940514.

112. The decision in Environment Protection Authority v McMurray is binding in this Court and, accordingly, there is no power to make an order for the costs of the Application beyond those costs that may be ordered under section 216.

The Costs Report

113. In answer to the Certificates of Assessment upon which IHMS relies and the estimated costs incurred by DHA, the Prosecutor relies upon a document described as a Costs Report prepared by Gillespie Whelan Legal Costs which is the only annexure to the affidavit of Rachel Wang dated 28 April 2023. The Costs Report refers only to Certificates of Assessment prepared for IHMS by Ms Grisenti and the content of his affidavit and is essentially argumentative as to the basis upon which the costs have been calculated by Mr Grisenti and his conclusions. In the Summary, at page 15, the author concludes that:

1. The details of the costs provided are insufficient to enable a determination on a just and reasonable basis that the cost should be payable in the amounts claimed by IHMS;

2. There are “indications that the costs claimed offend section 172 of the Legal Profession Uniform Law in that they have not been proportionately or reasonably incurred and are not proportionate and reasonable in amount, and that they do not represent just in reasonable costs that the defendant maybe come entitled 2 pursuant to an order under section 216”; and

1. The detail provided indicates that the claims for costs extend beyond the scope of section 216; Summary, at p15.

114. The Costs Report offers no competing assessment of the costs claimed by IHMS as calculated by Mr Grisenti.

115. Senior Counsel for IHMS submitted that this Court would place no weight on the Costs Report on the following basis:

1. While the author has referred to and agreed to comply with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules2005, the author has failed to comply with critical elements Code including full disclosure of the material provided and therefore the basis of the conclusions. For example, paragraph [4] of the affidavit of Rachel Wang dated 26 April refers to an email to Gillespie Whelan on 18 April 2023 and attaches the Table referred to below. The email is not attached to the affidavit, and it is not mentioned at paragraph [2] of the Costs Report, which refers only to the Table. Further, as set out below, the preamble to the Table says a second table is included, and that document is not mentioned in the affidavits of Ms Wang, it is not listed in paragraph [2] of the Costs Report, or referred to in the body of the Costs Report;

2. No letter of instruction is provided, and the only material concerning the instructions is in paragraphs 1 (a) and (b), which states that the author has been requested to provide an opinion on the claim for costs in the Certificates of Assessment prepared by Mr Grisenti, based on the materials provided to her, and limited to whether;

1. The claims for costs are sufficient to make it determination as to what the costs relate and whether those costs are fair and reasonable; and

2. The costs comply with section 172 of the Legal Profession Uniform Law;

3. The documents provided to the author are set out in paragraph [2] and those documents:

1. Are limited in scope and do not include all the materials relevant to the substance of the Application contained in the CB (Exhibit 1), and particularly, all the submissions, correspondence and documents in the CB, at Tabs 1 to 22C;

2. Includes a table of changes to the Prosecutor’s case dated 18 April 2023, at CB 34 pp 1585-1586, apparently sent by email to the author (not in evidence). Concerning the table, IHMS says:

1. It deals only with what are described as ‘Acknowledged Variations to the Prosecution’, as assessed by its author, despite an express acknowledgement in the preamble that “IHMS may seek to argue that additional changes have occurred’ which the author then dismisses as changes ‘consistent with, or broadly captured by, earlier iterations...”.

2. The preamble concludes with the following “A second table is included from page 6 which contains anticipated perceived variations to the prosecution case that we would be disputing.” The second table is not included in the evidence, or referred to in the Costs Report, at [2], or elsewhere;

3. Wholly omits material changes in the Prosecutor’s case, for example, the Table does not mention that the Prosecutor’s case, from commencement until late 2022 made allegations concerning all the detainees in the VIDC until eventually limited to only Mr. Milad Aljaberi;

4. The Table also includes a column headed ‘Comments’ that contains statements that are wholly inappropriate in briefing an expert, including for example concerning the first Acknowledged Variation where the following appears:

“It is difficult to envisage how this refined position would contribute to costs thrown away”;

5. By reason of those matters, the Table is not a complete, fair or accurate summary of the changes to the Prosecutor’s particulars or its case, the full scope of the dispute between the parties about the need to provide other particulars or the form of particulars provided since the filing of the Applications;

3. Do not include:

1. The privileged materials available to Mr Grisenti, and has therefore not seen the whole of the file that is the basis for the claim for costs by IHMS;

2. Any documents concerning the costs said to be thrown away by the adjournments of the Applications, or in fact the hearing dates; and

3. A range of other materials identified by Senior Counsel for IHMS in submissions.

116. The criticisms of the Costs Report by Senior Counsel for IHMS are substantive, well made, and appropriate and those matters effectively impugn the basis of the Costs Report and its utility in resolving IHMS’ claim for costs. On the evidence, it is clear that:

1. Gillespie Whelan has not been briefed with all the materials relevant to IHMS’ claim for costs including the materials in the Court Book and particularly documents that set out the position of IHMS and upon which it relies;

2. The instructions are not fully disclosed and there is information on the face of the document’s consistent with a failure to disclose all documents briefed;

3. The documents briefed include a Table that is contrived in the sense that:

1. The contents are a one-side and subjective assessment of the Prosecutor’s case, and the changes in the particulars;

2. It includes as ‘comments’ assertions about matters relevant to questions posed to the expert for opinion including seeking to characterise or minimise the ‘acknowledged’ changes to the particulars in a way that supports the position of the Prosecutor; and

3. It expressly omits information about the position of IHMS and the issues it raises concerning the changes to the particulars and the requirement for other particulars on the basis that they are disputed by the Prosecutor;

4. The Table itself is incomplete as the second table referred to in the preamble is not included.

117. The content of the Costs Report is also problematic in that it is argumentative and asserts conclusions about matters of law that are wrong. For example, the author asserts, at [4] and [8], that the Court “must be satisfied that it is just and reasonable to award cost and that the amount of those costs is just and reasonable”, and then, at [8], goes on to cite the decision in Caltex Refining Co Pty Limited v Maritime Services Board (NSW) (1995) 36 NSWLR 552. Even a cursory reading of section 216 shows that there is no requirement for the court to be satisfied that it is just and reasonable to award costs as a precondition to an order, and further, unlike section 213 (2) and 215 (1)(a), there is no requirement for the court to determine an amount of costs that is just and reasonable. The decision in Caltex Refining Co Pty Limited v Maritime Services Board (NSW) concerned, inter alia, an award of costs under section 52 of the Land and Environment Court Act1979 (NSW) which is in terms wholly different to section 216 Criminal Procedure Act and contains an express requirement that the order be for ‘such costs as to the Judge seem just and reasonable.’ To the extent that Ms Gillespie implies that there has not been a fair hearing on the merits of IHMS’ application for costs, apparently on the basis that she believes the Affidavit of Mr Grisenti and the attached Certificates of Assessment, and the other evidence from IHMS, in support of the application for costs is ”insufficient to enable a determination on a just and reasonable basis”, Summary at p 15, both parties were afforded the opportunity to serve and rely on any evidence that they saw fit, and to makes submissions in writing and orally, and they did so. If the Prosecutor and/or Ms Gillespie took the view that there was insufficient information for them to respond to the evidence of Mr Grisenti and his assessment of the costs, then it was open to them to seek or compel production of further information, and the Prosecutor did not do so.

118. In addition to the above matters, the conclusions in the Costs Report are also unhelpful in resolving the application for costs:

1. The first conclusion is that the details of the costs provided are in the opinion of the author insufficient to enable “a determination on a just and reasonable basis”. As set above, section 216 does not require a finding that it is just and reasonable to award costs or a determination that the costs are just and reasonable, and accordingly this conclusion is irrelevant. Concerning the opinion that the information provided is insufficient, on the evidence that the Prosecutor took no steps to seek or compel the production of further information concerning the claimed costs or the assessment by Mr Gisenti;

2. The second conclusion is that there are ‘indications’ that the claimed costs offend section 172 of the Legal Profession Uniform Law. An opinion expressed by reference to ‘indications’ is hardly probative of the mixed question of fact and law whether the costs are or are not compliant with the requirements of section 172. Section 172(1) provides that a law practice must charge costs that are no more than fair and reasonable in the circumstances, and which are proportionately and reasonably incurred and proportionate and reasonable in amount. Section 172(2) sets out various factors when determining whether the costs satisfy section 172(1), and reliance is placed on the factors identified in sub-paragraphs (a), (b) and (c) concerning the skill, experience, specialisation and seniority of the lawyers, the complexity or difficulty of the issues and the labour and responsibility involved. Section 172(4) provides that a costs agreement that is compliant with the Legal Profession Uniform Law is prima facie evidence that costs disclosed in it are fair and reasonable and therefore creates a prima facie presumption that might later be displaced on a full assessment of the costs. In this case, Mr Grisenti’s affidavit and the Certificates of Assessment both say that the costs were assessed by him in accordance with section 216 and sections 172(1) and (2) of Legal Profession Uniform Law,and Ms Gillespie’s opinion that there are ‘indications’ of non-compliance hardly provides a proper basis to find otherwise.

3. The third conclusion is that the detail provided ‘indicates’ that the claim for costs extends beyond the scope of section 216, which presumably means that in Ms Gillespie’s opinion some of those costs are ‘additional costs’ within the meaning of the section and authorities. As expressed above, Mr Grisenti’s affidavit and Certificates of Assessment both say that the costs were assessed by him in accordance with section 216 and sections 172(1) and (2) of Legal Profession Uniform Law,and Ms Gillespie’s opinion that there are ‘indications’ that some of the costs are beyond the scope of section 216 hardly provides a proper basis to find otherwise.

119. For the reasons set out above the Costs Report prepared by Ms Gillespie of Gillespie Whelan offers no real assistance in resolving IHMS’ claim for cost under section 216 and I give it no weight.

Unreasonable Conduct & Delay

120. As to whether there has been unreasonable conduct or delay on the part of the Prosecutor, and despite the Prosecutors concession, it is appropriate to record that the Prosecutor’s conduct was both unreasonable and involved delay sufficient to satisfy the requirement of section 216 (2) Criminal Procedure Act 1986:

1. The Applications were listed for hearing in this Court on 7 November 2022 and the substantive matter was listed for hearing over four weeks commencing on 17 April 2023;

2. The Prosecutor appeared at the directions hearing on 18 October 2022 and stated that it was ready to proceed;

3. Between 18 October 2022 and 7 November 2022, the Prosecutor took several steps changing its case including:

1. On 28 October 2022 serving the ‘Consolidated Particulars 13 October 2022’;

2. On 4 November 2022 serving the ‘Amended Consolidated Particulars on 4 November 2002’;

3. Served proposed Amended CANs;

4. The Prosecutor did not respond to correspondence from IHMS concerning the service of the documents, or its invitation to seek an adjournment of the hearing of the Applications, in conformity with the Prosecutor’s obligations to be fair to the accused and to assist the Court, until 23.32 on 5 November 2022, when the Prosecutor declined to make that application.

121. By reason of the matters set out in the preceding paragraph, I am comfortably satisfied that the conduct of the Prosecutor was the sole cause of the adjournment of the hearing of the Applications on 7 November 2022, and the vacation of the hearing dates, and that the conduct was unreasonable and involved delays on its part. The precondition to making an order for costs in favour of IHMS and DHA under section 216(1) is plainly satisfied.

122. As to whether IHMS and the DHA have incurred ‘additional costs’ within the meaning of section 216 (2), I am satisfied on the evidence that IHMS and the DHA have incurred ‘additional costs’ because of the unreasonable conduct and delays by the Prosecutor and both are entitled to an order against the Prosecutor under section 216(1).

123. Section 216 (3) requires the Court to specify the amount of costs payable or, as an alternative, provide for the determination of the amount at the end of the proceedings. It is apparent from the ratio of Trico set out above that the only costs that may be ordered under section 216 (1) are costs that properly fall within the meaning of ‘additional costs’ as elucidated in Trico.

Quantum - DHA

124. The DHA relies on the estimates of costs set out in the affidavit of Samual Whitton dated 28 April 2023. That affidavit is not sufficiently detailed to distinguish between those costs that have the requisite causal connection to the adjournment and are therefore properly characterised as ‘additional costs’ within the meaning of section 216 (2), and those that do not. In those circumstances, it is appropriate to take the alternative course in section 216 (3) and provide for the determination of the costs that should be paid by the Prosecutor to the DHA at the end of the proceedings.

Quantum – IHMS

125. The decision in Trico establishes that a cost is an ‘additional cost’ if it will be incurred if the matter is adjourned but will not be incurred if the matter is not adjourned and is therefore an ‘additional’ cost in the sense that it is additional to the costs incurred if there is no adjournment, at [133].

126. It is apparent that most of the costs claimed by IHMS relate to work on the many ultimately abandoned iterations of the Prosecutor’s particulars and much of that work that was done prior to the filing of the Application. While the decisions in Sutherland Shire Council v Benedict Industries Pty Ltd (No. 6) and SafeWork v Poletti Corporation support a conclusion that the costs incurred in answering a later abandoned element of a prosecution case can be properly characterised as ‘additional costs’ if they are causally related to the unreasonable conduct by the Prosecutor, the temporal relationship to the adjournment is significant. In SafeWork v Poletti Corporation, the matter was listed for hearing and the Prosecutor intended to rely on expert evidence. Multiple directions were made for the service of the expert evidence and the Prosecutor failed to comply with those directions, which ultimately caused the vacation of the hearing dates. When the matter eventually came on for hearing the Prosecutor abandoned its reliance on the expert evidence. In those circumstances, the costs incurred by the defendant in responding to the expert evidence were causally related to the unreasonable conduct and delay by the Prosecutor that caused the vacation of the hearing dates and were ‘additional costs’ in the sense discussed in Trico, at [133], as those cost were incurred because the matter was adjourned and would not have been incurred if the matter is not adjourned.

127. In this case, the costs incurred by IHMS in responding to the many abandoned iterations of the Prosecutor’s particulars between commencement of the proceedings and service of the December Particulars would have been incurred irrespective of the adjournment of the Application and the vacation of the hearing dates, and IHMS accepts that the cost of responding to the December Particulars are in the same category. For those reasons, the proper conclusion is that the considerable and ultimately wasted costs incurred by IHMS in dealing with the abandoned iterations of the Prosecutor’s particulars are not ‘additional costs’ in the sense discussed in Trico, at [133], because they were not incurred because the Application was adjourned.

128. Of the costs that are set out in the Certificates of Assessment dated 24 March and 21 April 2023, the only costs that are ‘additional costs’ within the meaning of the authorities are:

1. The costs under the heading ‘Adjournment Costs’ and ‘Sundry Disbursements’ in Certificate of Assessment dated 24 March 2023, which total $157,640; and

2. The whole of the costs in the Certificate of Assessment dated 21 April 2023 which total $101,631.00.

Orders

129. On the Application of IHMS, and for the reasons set out above, I make the following orders:

1. The Defendant inform the Prosecutor of the further particulars of the charge that it requires within 28 days;

2. The Prosecutor is to provide proper particulars in response within a further 28 days;

3. The proceedings be stayed until such time as the Prosecutor properly particularises the allegations against the Defendant;

4. The Prosecutor is to pay to the Defendant costs in the sum of $259,271 pursuant to section 216(1) of the Criminal Procedure Act 1986.

130. On the Application of the DHA, and also for the reasons set out above, I make the following orders:

1. The Prosecutor is to provide to the Defendant proper particulars of the charge in conformity with the case outlined in Court on 2 May 2023 within 28 days;

2. The proceedings be stayed until such time as the Prosecutor properly particularises the allegations against the Defendant; and

3. The Prosecutor is to pay to DHA costs pursuant to section 216(1) of the Criminal Procedure Act 1986 in an amount to be determined at the end of the proceeding pursuant section 216(3) of that Act.

131. The proceedings are adjourned before me for mention only on 17 July 2024.

132. I grant liberty to the parties to re-list the proceedings on 14 days’ notice in writing.

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Amendments

13 August 2024 - Amended formatting.

Decision last updated: 13 August 2024