Nash v Glennies Creek Coal Management Pty Ltd (No 8)

Case •

[2015] NSWIC 2

•

30 January 2015

No judgment structure available for this case.

Industrial Court


New South Wales

Medium Neutral Citation: Nash v Glennies Creek Coal Management Pty Ltd (No 8) [2015] NSWIC 2
Hearing dates:8 and 17 December 2014 (written submissions)
Date of orders: 30 January 2015
Decision date: 30 January 2015
Before: Boland AJ
Decision:

The Court makes the following orders:

Orders (2) – (8) made on 13 August 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 are set aside.

The claims of client legal privilege made by the Director-General of the Department of Trade and Investment, Regional Infrastructure and Services (“the Department”) in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013) is upheld.

The Department is excused from producing any document that is properly the subject of a claim of client legal privilege in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013).

The Department's claims of public interest immunity be upheld in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:

any alleged defect in, or in the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;

clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.

The Department is excused from producing any document that is properly the subject of a claim of public interest immunity in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:

any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;

clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.

Noted that in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283, the Court upheld the Department’s claims of public interest immunity in respect of documents in Confidential exhibits MP-E to MP-F.

The defendants shall pay the costs of the Department and of the prosecutor in relation to these costs proceedings and shall pay the costs of the prosecutor and the Department in relation to the proceedings in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 and Nash v Glennies Creek Coal Management Pty Ltd (No 7) [2014] NSWIC 5 as agreed or assessed.

Order (4) made on 13 September 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 is set aside.

Order (3) made on 19 November 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 is set aside.

The defendants shall pay the costs of the Department and the prosecutor in relation to the proceedings in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 and Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 as agreed or assessed.
Catchwords: COSTS – Interlocutory proceedings in connection with substantive criminal proceedings – Applications by non-party to criminal proceedings to resist production of material on the basis of legal professional privilege and public interest immunity – Applications by non-party to criminal proceedings and by prosecutor for a stated case – Whether costs of interlocutory proceedings should be determined in accordance with civil procedure or under Criminal Procedure Act 1986 – Principles governing awarding of costs – Section 181 of Industrial Relations Act 1996 – Whether non-party to criminal proceedings and prosecutor should pay costs of defendants where it was alleged costs accrued in the interlocutory proceedings only because the prosecutor failed to disclose to the defendants difficulties with the validity of the appointment of the prosecutor – Whether non-party to criminal proceedings acted as a mere surrogate for the prosecutor, with no other legitimate reason for denying access to material sought by defendants – Whether interlocutory proceedings separable from substantive criminal proceedings – STATED CASE – final orders following decision of Full Bench of Industrial Court on case stated under s 196 of Industrial Relations Act 1996
Legislation Cited: Civil Procedure Act 2005
Coal Mine Health and Safety Act 2002
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Industrial Relations Act 1996
Industrial Relations Commission Rules 2009
Occupational Health and Safety Act 2000
Petroleum (Onshore) Amendment Bill 2013
Uniform Civil Procedure Rules 2005
Cases Cited: ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261
Amalgamated Television Services v Marsden [1999] NSWCA 313
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17
Floruit Holdings Pty Ltd v Sebastian – Builders and Developers Pty Ltd [2009] NSWCA 411
Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87
Handberg v Chacmol Holdings Pty Ltd (No 2) [2005] FCA 680
Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126
Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368
Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189
Inspector Wolf v Rockdale Beef Pty Ltd (No 2) [2006] NSWIRComm 365
Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283
Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355
Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99; (2013) 237 IR 400
Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36
Nash v Glennies Creek Coal Management Pty Ltd (No 7) [2014] NSWIC 5
Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121
Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612
Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31
Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 6) [2007] NSWIRComm 285
Taylor v Environment Protection Authority [2000] NSWCCA 71; 50 NSWLR 48
Workcover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244
Category:Costs
Parties: Director General, Department of Trade and Investment, Regional Infrastructure and Services (Applicant on the Motion)
Jennifer Ann Nash (Prosecutor in the substantive proceedings)
Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents on the Motion/Defendants in the substantive proceedings)
Representation:

Counsel:
S Odgers SC with M Kumar of counsel (Applicant on the Motion)
J Agius SC with C Magee of counsel (Prosecutor in the substantive proceedings)
A Moses SC (Respondents on the Motion/Defendants in the substantive proceedings)

Solicitors:
I V Knight, Crown Solicitor’s Office (Applicant on the Motion and Prosecutor in the substantive proceedings)
Ashurst Australia Lawyers (Respondents on the Motion/Defendants in the substantive proceedings)
File Number(s):IRC 315 and 316 of 2011

Judgment

  1. In Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 ("Nash No 6"), the Full Bench provided answers to seven questions I had posed as part of a stated case pursuant to s 196 of the Industrial Relations Act 1996 ("IR Act") and s 5AE of the Criminal Appeal Act 1912 ("CA Act"). The questions were sought to be referred jointly by the Director General, Department of Trade and Investment, Regional Infrastructure and Services ("the Department") and the prosecutor, Jennifer Ann Nash ("the prosecutor"). The questions in the stated case related to my judgment in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 ("Nash No 2"). That judgment determined Notices of Motion filed by the Department seeking to set aside Summonses and Notices to Produce on grounds including that the Summonses and Notices sought documents which were the subject of a claim for public interest immunity and/or client legal privilege.

  2. The questions referred to the Full Bench (in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 ("Nash No 4") and Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99; (2013) 237 IR 400 ("Nash No 5")) were in the following terms:

  1. Did I err in law in holding that an assertion that a state of mind was formed after the receipt of legal advice, in response to a request to provide information as to when that state of mind was formed, could put in issue that state of mind for the purposes of s122 Evidence Act 1995 and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [123], [125], [170] - [171])?

  2. Did I err in law in holding that a prosecutor's assertion in correspondence with a defendant, that she formed a particular state of mind with regard to an issue in the proceedings on the basis of legal advice, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [170] - [171])?

  3. Did I err in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least important for, the proper determination of the proceedings (see Nash No 2, paragraph [79], [82], [90])?

  4. Was I required as a matter of law to give reasons for finding that, taking into account the contents of each document in respect of which a claim was made, each document was crucial to the proper determination of the proceedings?

  5. Was it open to me as a matter of law to find that, taking into account the contents of each document in respect of which I disallowed the claim of public interest immunity, all of those documents were crucial to the proper determination of the proceedings?

  6. Was it open to me as a matter of law to allow the claim of public interest immunity with respect to Confidential Exhibits MP-A and MP-B only in relation to those documents or pages of documents marked "Cabinet in Confidence" (see Nash No 2, paragraph [90])?

  7. Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act and the common law?

  1. In Nash No 6, the Full Bench handed down its decision in which it remitted the matters to me with the following answers to the questions referred:

Question (i): yes;

Question (ii): yes;

Question (iii): yes;

Question (iv): not necessary to answer;

Question (v): not appropriate to answer;

Question (vi): not appropriate to answer;

Question (vii): no.

  1. In Nash v Glennies Creek Coal Management Pty Ltd (No 7) [2014] NSWIC 5 (“Nash No 7”) I considered the effect of answers given by a Full Bench on my judgment in Nash No 2. In Nash No 7 I concluded that it was necessary for me to act in accordance with the answers provided by the Full Bench. The parties were directed to provide short minutes of order to reflect the answers provided by the Full Bench as to their effect on my orders in Nash No 2. Short minutes were provided and agreed between the parties except as to costs.

  2. On the question of costs, I noted that the Department and the prosecutor each sought an order for their costs in respect of Nash No 2, Nash No 4 and Nash No 5 on the basis that the questions have been answered in the Department's favour and that costs should follow the event. The Department and the prosecutor also sought costs in relation to Nash No 7. I provided the parties with a further opportunity to address the question of costs in the light of the judgment in Nash No 7. Written submissions on costs were duly received from the parties.

  3. This judgment deals with the question of costs. However, I have also set out the final orders flowing from my reasons for judgment in Nash No 7.

Defendants’ submission

  1. In summary, the defendants’ position was that:

  1. the Court should depart from the usual order as to costs in Nash No 2 and Nash No 7, and order that the prosecutor and the Department pay the costs of the defendants; or

  2. in the alternative, that each party bear their own costs; and

  3. there is no proper basis for the Court to vary the costs orders it has already made in Nash No 4 and Nash No 5 that costs be reserved.

Costs in Nash No 2 and Nash No 7

  1. In support of their position on costs in Nash No 2 and Nash No 7, the crux of the defendants’ argument was that they should not be required to pay the costs of the Department and the prosecutor in circumstances where costs accrued in the interlocutory proceedings only because the prosecutor failed to disclose to the defendants difficulties with the validity of the appointment of the original prosecutor, Mr Regan (Ms Jennifer Nash replaced Mr Regan as prosecutor on 7 March 2012: see Nash No 2 at [20]). It was submitted the prosecutor had a duty to disclose that information in a timely manner, especially given that the prosecutor’s capacity to institute the proceedings was an essential element of the criminal charges against the defendants.

  2. If it had not been for the defendants discovering the existence of the Petroleum (Onshore) Amendment Bill 2013 in which it was proposed to retrospectively validate certain appointments, including that of Mr Regan, the defendants would not have known of any difficulty that might exist with the appointment that might have affected Mr Regan’s capacity to institute the proceedings against the defendants.

  3. The prosecutor, it was submitted, had a duty to the defendants to disclose information known to the prosecutor, in a timely manner, that could be seen, on a sensible appraisal by the prosecution, to be relevant or possibly relevant to an issue in the case, including a new issue the existence of which was not apparent from the prosecution case, and which would tend to assist the defence case.

  4. Whilst the Department took the lead in taking all conceivable points and steps to prevent disclosure to the defendants of documents which were relevant to the issue of the validity of the appointment of Mr Regan, it was submitted that should be seen as in aid of the prosecutor to prevent the defendants obtaining documents that went to the question of the breach of the duty of disclosure by the prosecutor.

  5. The defendants submitted that the approach taken by the Department, in aid of the prosecutor, had caused the determination of the issues before the Court, and the overall proceedings, to be unnecessarily protracted. Counsel for the defendants submitted that this approach taken by the Department, with the support of the prosecutor, had delayed and interfered with the continuance of a criminal trial. The defendants further submitted that the Department, as an instrumentality of the Crown, and the prosecutor, as an officer of the Crown, both had duties to assist the Court to arrive at a proper and just result, but that their obstructive conduct was inimical to those duties.

  6. It was submitted that the "standard of fair play" required disclosure to the defendants of the issue of the validity of the appointment of Mr Regan, which had not occurred, and the defendants should not bear the costs of the Department and the prosecutor. It was submitted by the defendants that they should have their own costs, in circumstances where the defendants were seeking to obtain information about issues about the validity of the appointment of Mr Regan, which information should in any event have been disclosed by the prosecutor to the defendants, but was not. It was this failure by the prosecutor to disclose these matters, which required the defendants to seek and pursue a Summons for Production of documents containing information about issues about the validity of the appointment of Mr Regan.

Costs in Nash No 4 and Nash No 5

  1. In respect of Nash No 4 and Nash No 5 I ordered that costs be reserved. The defendants submitted there was no proper basis for the Court to vary these orders.

  2. The defendants noted that in the Department's submissions in reply in Nash No 7 it was submitted that:

the material change in circumstances (Nash No 6) is the basis for the Department seeking variation of the orders that costs be reserved.

  1. According to the defendants that submission did not follow. It was submitted that the issue in both Nash No 4 and Nash No 5 was whether questions of law should be referred to the Full Bench of the Court. The issue in Nash No 2 was whether a motion to set aside the Summons should be granted, and whether claims of privilege and public interest immunity should be upheld. The issue in Nash No 7 was what impact the decision of the Full Bench in Nash No 6 should have on the orders in Nash No 2. These were each separate issues.

  2. It was submitted that the determination of Nash No 6, being the determination of questions of law, had no bearing on the issue of the actual referral of the questions of law, and did not amount to a material change in circumstances in respect of Nash No 4 and Nash No 5.

  3. It was further submitted by senior counsel for the defendants:

There has been no material change in circumstances to vary or set aside those orders, in accordance with the principles in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, Amalgamated Television Services v Marsden [1999] NSWCA 313 and Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121. In respect of costs, merely because answers have now been provided to the questions referred to the Full Bench, does not provide a material change in circumstances in respect of the proceedings in Nash No 4 and Nash No 5 which concerned whether the questions were proper questions of law to be referred under section 5AE of the Criminal Appeal Act 1912 (NSW), and not with the actual answers provided to those proposed questions. The answer to the questions themselves does not impact in any way upon whether the questions ought to have been referred.

In respect of the proceedings in Nash No 4 and Nash No 5, it is apposite to refer to the statement of the Court in Nash No 3:

"[9]… It was not for the defendants to identify any flaws in the questions and for the Department and prosecutor to then attempt to remedy the flaws: it is the Department and the prosecutor that wish me to refer the questions and it is their responsibility to properly assist the Court in ensuring that the questions are indeed questions of law, which are capable of producing answers that must have some utility in assisting me in finally disposing of the matter."

That the Defendants sought to assist the Court in respect of dealing with the applications to refer questions of law in Nash No 4 and Nash No 5, primarily in respect of whether the questions were questions of law, does not mean that the Defendants have acted unreasonably and ought to have costs awarded against them. The Department's submissions in reply in Nash No 7 (at [14]) in this regard are rejected.

In respect of an award of costs in relation to a referral of questions of law, the Court would need to be satisfied that there were special reasons to award costs against the Defendants in respect of Nash No 4 and Nash No 5 (see Taylor v Environment Protection Authority [2000] NSWCCA 71; 50 NSWLR 48 at [37] - [47] Sperling J (Meagher JA and James J agreeing); although note Inspector Wolf v Rockdale Beef Pty Ltd (No 2) [2006] NSWIRComm 365 at [16]). Notwithstanding the Department's submissions in reply at [14], and the Prosecutor's submissions in reply at [4]-[6], in Nash No 7, the Defendants maintain that the approach of the Court of Appeal in Taylor ought be followed.

The Defendants reject the Prosecutor's submissions in reply in Nash No 7 (at [6)) where it is asserted that:

The requirement for the Prosecutor and the Department to seek the reference of the questions in the stated case was the direct and likely consequence of the Defendant's [sic] approach to the Department's Notice of Motion to set aside the Summons for Production.

In those submissions, the Prosecutor also places reliance on the decision of the Court in Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368 at [38]-[44]. The circumstances in that case are clearly not the circumstances in the present proceedings, and the submission is without foundation. The Defendants sought the Summons for the reasons set out in paragraphs 3.3 to 3.7. There is nothing in the judgments of the Court in Nash No 3, Nash No 4, Nash No 5, Nash No 6 or Nash No 7 that any errors arising in Nash No 2 may be attributed to the Defendants.

The application for costs in Nash No 4 and Nash No 5 is unmeritorious. The orders in Nash No 4 and Nash No 5 should be maintained by the Court. The question of costs in those proceedings ought be dealt with at the conclusion of the substantive proceedings.

Department’s submission

  1. The Department’s position regarding costs was, in summary:

  1. the costs order made in Nash No  2 should be set aside;

  2. the costs orders in Nash No  4 and Nash No  5 should now be determined as the privilege and public interest immunity claims are the subject of final orders;

  3. the Department has succeeded in all of its client legal privilege and public interest immunity claims;

  4. there is no basis for the Court to depart from the ordinary order that costs follow the event;

  5. the submission that a departure from the ordinary cost order is warranted due to “fairness” or the conduct of the Department is without merit and should be rejected; and,

  1. the defendants should pay the Department’s costs of Nash No 2, Nash No  4, Nash No  5, Nash No  7 and these further costs proceedings.

  1. The main points made by the Department in claiming its costs in relation to Nash No 2 and Nash No 7 were as follows:

  1. The defendants’ submission relied on an assertion that the Department failed to comply with its model litigant obligations because it resisted production/access to documents on the basis of client legal privilege and public interest immunity. This was an inappropriate submission. It is well established that the model litigant obligation does not prevent the State from relying on/asserting proper claims of legal professional privilege and/or public interest immunity.

  2. The purpose of the interlocutory proceedings was not “in aid of the Prosecutor preventing the Defendants obtaining documents which go to the question of the breach of duty of disclosure by the Prosecutor”. This was a submission without foundation that should be rejected. The purpose of the proceedings was to make proper claims of client legal privilege and public interest immunity (which were upheld).

  3. The defendants’ submission that the Department, as an instrumentality of the Crown, had a duty to assist the Court to arrive at a proper and just result is a baseless submission that should be rejected. The Department’s claims of client legal privilege and public interest immunity have been upheld by this Court.

  4. There was no basis for the Court to depart from the usual order that costs follow the event.

  1. The main points made by the Department in claiming its costs in relation to Nash No 4 and Nash No 5 were as follows:

  1. The parties understood that the costs would be determined once the privilege claims were finalised. They have now been finalised.

  2. As the Department’s role in the litigation has concluded with the orders in its favour in Nash No 7, it is appropriate for the Court to determine the costs of Nash No 4 and Nash No 5, otherwise the Department will have to re-appear at the end of the criminal trial.

  3. The costs of Nash No 4 and Nash No 5 are costs in the cause of the privilege/immunity claim, not costs in the cause of the substantive criminal trial.

  4. The defendants’ reference to the requirement for “special reasons to award costs” is misconceived. Such a test has been applied in respect of a costs application made before the superior court determining the stated case. The cases cited by the defendants (Taylor v Environment Protection Authority [2000] NSWCCA 71; 50 NSWLR 48 and Inspector Wolf v Rockdale Beef Pty Ltd (No 2) [2006] NSWIRComm 365) concerned applications for costs from the superior court that heard the stated case. The Department is not applying for costs from the superior court. The defendants could have consented to the referral of questions, but rather they elected to vigorously contest the applications for referral in Nash No 4 and Nash No 5. Costs should follow the event, and the Department should be awarded the costs of Nash No 4 and Nash No 5.

Prosecutor’s submission

  1. The prosecutor rejected the defendants’ contention that the interlocutory proceedings arose due to any failure on the part of the prosecutor in relation to her duty of disclosure. It was submitted the prosecutor had throughout, and continued to maintain that she complied with her duty of disclosure. There was no finding to the contrary. It was not proper for the defendants to base their submissions on costs on a contention that the prosecutor should have disclosed information to the defendants, but did not.

  2. The prosecutor seeks an order that the defendants pay her costs in respect to the decisions in Nash No 2, Nash No 4, Nash No 5 and Nash No 7. The prosecutor submitted that she was the successful party and costs should follow the event. There has been no conduct on the part of the prosecutor in the interlocutory proceedings that could properly be regarded as conduct which would disentitle her to an order for her costs in the interlocutory proceedings.

  3. The prosecutor submitted s 181 of the IR Act did not relevantly govern costs as between the prosecutor and the defendants. Costs, it submitted, were governed by Pt 5 of Ch 4 of the Criminal Procedure Act 1986 (“CP Act”).

  4. It was further submitted the Court has power to order that the defendants pay the prosecutor’s costs pursuant to s 257B of the CP Act, on the making of orders in the proceedings.

  5. Dealing specifically with costs in Nash No 2 and Nash No 7, the prosecutor submitted:

  1. As the ultimate outcome of the interlocutory proceedings was the setting aside the requirement for the prosecutor to produce any documents, she should have her costs on the basis that costs should follow the event.

  2. There was no basis for the defendants’ submission of a “failure of the Prosecutor to disclose to the Defendants…”. The ‘disclosure issue’ was considered in the context of whether or not it was “on the cards” that the document sought might assist the defendants’ case regarding a potential allegation of ‘abuse of process’.

  3. The question of whether or not the prosecutor complied with her duty of disclosure, was not one that was at issue or one that was determined in the proceedings in Nash No 2 and Nash No 7. It was not therefore open for the defendants to submit that there was a “failure of the Prosecutor to disclose to the Defendants the issue about the validity of the appointment of Mr Regan”. The evidence, the subject of Nash No 2, went to the issue of whether the documents sought to be produced were properly the subject of claims of privilege and public interest immunity. This therefore cannot form a basis upon which the court can have regard to on the question of costs.

  4. The prosecutor acted appropriately and consistent with her duties, in conducting the litigation and in supporting the Department’s claims for client legal privilege and public interest immunity.

  5. The purpose of the Department’s application, which was supported by the prosecutor, was to make legitimate claims for client legal privilege and public interest immunity over documents sought by the defendants. The prosecutor rejected the defendants’ contention about her disclosure and addressed this issue in the letter dated 12 July 2013. The prosecutor maintained that there was no foundation for the submission that the prosecutor has acted otherwise in accordance with her duties.

  1. In relation to costs in Nash No 4 and Nash No 5, the prosecutor submitted:

  1. The proceedings in Nash No 4 and Nash No 5 arose from and were directly linked to the Department’s application in respect of claims for client legal privilege and public interest immunity over documents sought by the defendants. It was, therefore, appropriate at the conclusion of that series of proceedings for costs to be determined, the ultimate outcome being known.

  2. There was no proper basis for the defendants to contend that the costs in Nash No 4 and Nash No 5 should be considered as part of the substantive hearing of the criminal trial. Nash No 4 and Nash No 5 involved issues separate to those to be determined in the substantive criminal trial.

  3. The decision of the Full Bench in Nash No 6 and the outcome of Nash No 7 represent a material change in the circumstances which warrant the Court setting aside and varying its orders in respect to costs in Nash No 4 and Nash No 5.

  4. The Court should reject the contention that it needs to be satisfied that there are special reasons before ordering the defendants to pay the costs of the referral applications: Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612; Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368.

  5. Where, as in this case, a party’s actions in the case led to the necessity for the reference and that the reference was ultimately unnecessary or decided against that party’s interest then it would be open for the court, in its discretion, to award costs against that party. (see: Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) at [38] – [44]).

Consideration

  1. An issue that is central to my power to award costs in the interlocutory proceedings is the source of that power. It seemed to be assumed by both the defendants and the Department that s 181 of the IR Act was the relevant source of power in all respects. The prosecutor, on the other hand, seemed to submit that costs in relation to all of the interlocutory proceedings (Nash No 2, Nash No 7, Nash No 4, Nash No 5 and the present proceedings) were governed by the CP Act.

  2. Having considered this question, it appears to be not without some difficulty.

Whether CP Act applies

  1. The substantive proceedings were commenced by Applications for Order pursuant to s 246 of the CP Act and r 16.1 of the Industrial Relations Commission Rules 2009 charging the defendants with contraventions of the Occupational Health and Safety Act 2000 ("the OHS Act"). Those proceedings are criminal proceedings. At the time of the alleged contraventions s 168 of the IR Act applied. That section was in the following terms:

168 Criminal procedure

(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.

(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.

(3) Nothing in subsection (2) affects the operation of section 170.

(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.

  1. By virtue of ss 168(2) and (4) of the IR Act (as those provisions existed at the relevant time), s 181 (appearing as it did in the same Part of the IR Act as s 168), which governs the Court’s powers in relation to costs, does not apply to criminal proceedings. Instead, Div 4 of Pt 5 of Ch 4 of the CP Act applies: see Workcover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd & Ors [2001] NSWIRComm 244; Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 at [305]; Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126 at [38].

  2. As I earlier observed, the prosecutor appeared to contend that the CP Act applies to the question of costs of the proceedings in Nash No 2, Nash No 7, Nash No 4, Nash No 5 and the present proceedings. I do not think that is correct. Whilst those proceedings might be regarded as interlocutory, it does not necessarily follow that they are criminal proceedings.

  3. Nash No 2, as it involved the prosecutor, concerned Notices of Motion by the Department seeking to have set aside Summonses and Notices to Produce on the grounds that the defendants’ Summonses and Notices were oppressive, lacking in legitimate forensic purpose, constituted a fishing expedition and caught documents that might be the subject of a claim for public interest immunity and/or client legal privilege. The Department’s Notices of Motion, whilst they might be regarded as interlocutory proceedings, were not criminal proceedings within the meaning of s 168 of the IR Act; they were not proceedings against a person for an offence. The Department has no role in the substantive criminal proceedings; it is not a party recognised by the CP Act and has no standing under that Act. It cannot claim costs under the CP Act nor may costs be ordered against it: see Div 4 of Pt 5 of Ch 4 of the CP Act.

  4. The prosecutor is, of course, party to the substantive criminal proceedings; she initiated them. However, the prosecutor’s role in Nash No 2 was merely one of support for the Department in what were civil proceedings. “Civil proceedings” means “any proceedings other than criminal proceedings”: s 3 of the Civil Procedure Act 2005.

  5. Nash No 7 involved a consideration of the effect of answers given by a Full Bench in Nash No 6 on my judgment in Nash No 2. Again, the proceedings in Nash No 7 were essentially civil in nature, despite being incidental to the substantive criminal proceedings. In my opinion, the CP Act does not apply to the proceedings in Nash No 2 and Nash No 7.

  6. The stated case proceedings in Nash No 4 and Nash No 5 were applications by the Department and the prosecutor pursuant to s 196 of the IR Act as it applied at the relevant time. Section 196 provided as follows:

196 Appeals from and references by members of Commission in criminal proceedings

(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:

(a) to the Court of Criminal Appeal—is taken to be a reference to a Full Bench of the Commission in Court Session, and

(b) to the Supreme Court—is taken to be a reference to the Commission in Court Session, and

(c) to rules—is taken to be a reference to rules of the Commission, and

(d) to the Attorney General—is taken to include a reference to the Minister, and

(e) to the Director of Public Prosecutions—is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and

(f) to the registrar—is taken to be a reference to the Industrial Registrar.

(4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.

  1. Section 5AE of the CA Act provides:

5AE Point of law stated during summary proceedings

(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the Industrial Relations Commission in Court Session in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

  1. In Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce), the Full Bench was considering the questions of costs in respect of a reference under s 196 of the IR Act:

[27] [Section] 196 of the Industrial Relations Act constitutes a specific statutory procedure dealing with both appeals and references to the Full Bench of the Industrial Court and also provides that the scheme thus established applies and the other provisions of Part 7 of Chapter 4 of the Industrial Relations Act do not apply in respect of criminal proceedings taken before a judge of the Industrial Court. Clearly, what the legislature intended was that s 196 was to apply to appeals and references to the Full Bench in criminal matters instead of the provisions which might otherwise apply; for example, s 187 in the case of appeals and s 193 in the case of references. The effect of s 196 is to incorporate within the statutory regime so established the relevant parts of the Criminal Appeal Act in lieu of provisions such as s 187 and s 193.

[28] There are thus a number of dichotomies or distinctions created by s 196. One is between the "usual" appeal and reference proceedings provided by the Industrial Relations Act and those particular to criminal proceedings before the Industrial Court. The second is the dichotomy between criminal proceedings at first instance in the Industrial Court (which are governed by s 168) and appeals and references which are governed by s 196.

[29] The identification of the latter dichotomy shows the fallacy in one of the important premises of the defendant's jurisdictional argument. It is not correct to say that reference proceedings are governed by s 168 of the Industrial Relations Act and the provisions incorporated by that section from the Criminal Procedure Act.

[30] An examination of s 196 shows that although it operates in respect of the proceedings to which it applies to the exclusion of certain provisions of the Industrial Relations Act (such as s 187 and s 193), the provisions of the Industrial Relations Act, the operation of which is affected, do not include those such as s 181 which relates to costs. This conclusion is obvious when regard is had to the fact that the costs provision in s 181 is not affected by s 196(1) which makes clear that s 196 only operates to exclude the application of provisions within that Part of the Act which commences with s 187. This conclusion also follows from s 196(4) which makes clear that the incorporation into the statutory scheme relating to appeals and references in criminal matters of the Criminal Appeal Act does not apply to any provision of the Criminal Appeal Act relating to costs. There is clearly thus no basis in either the terms or the manifest intention of s 196 to exclude the provisions of s 181 in respect to matters such as appeals and references in criminal matters in terms of s 196(1).

  1. In my opinion, it follows that proceedings involving an application for a reference under s 196(1) of the IR Act do not attract the costs provisions of the CP Act and it is s 181 of the IR Act that applies to such proceedings.

Outcome if CP Act applied to costs

  1. Although it is my opinion that s 181 of the IR Act applies in these proceedings, I should deal with the prosecutor’s submission that the CP Act applies to the prosecutor.

  2. At the relevant time, Div 4 of Pt 5 of Ch 4 of the CP Act governed the question of costs in the Industrial Court’s summary criminal jurisdiction. Sections 257B, C, D and G provided:

257B When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:

(a) the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

257C When professional costs may be awarded to accused person

(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if:

(a) the accused person is discharged as to the offence the subject of the proceedings, or

(b) the matter is dismissed because the prosecutor fails to appear, or

(c) the matter is withdrawn or the proceedings are for any reason invalid.

257D Limit on award of professional costs against a prosecutor acting in a public capacity

(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2) This section:

(a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and

(b) does not apply in relation to proceedings for an offence against the Occupational Health and Safety Act 2000 or the regulations under that Act.

(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.

…

257G Calculation of costs

The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined:

(a) by agreement between the prosecutor and accused person, or

(b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations).

  1. The prosecutor submitted that the Court cannot award costs against the prosecutor at this juncture in the proceedings, as the matter is still at an interlocutory stage. Presumably, the prosecutor relies on s 257C(1) of the CP Act for this submission, which provides that a court may “at the end of proceedings… order that the prosecutor pay professional costs… to the accused person, if the matter is dismissed or withdrawn.” Section 257C is subject to s 257D, which imposes limits on the circumstances in which costs may be ordered against the prosecutor.

  2. However, in light of the prosecutor’s reliance on Div 4 of Pt 5 of Ch 4 of the CP Act I find it difficult to understand how the prosecutor is able to contend she is entitled to an order for the costs of the interlocutory proceedings in light of s 257B, which provides that an order that an accused person pay the prosecutor’s costs may only be made if (a) the court convicts the accused person of an offence, or (b) the court makes an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence. The proceedings have not reached the stage where either of these two conditions could have been met.

  3. In my opinion, even if the CP Act applied to the prosecutor in respect of the interlocutory proceedings in relation to costs, neither the defendants under s 257C nor the prosecutor under s 257B would be entitled to a costs order at this stage of the proceedings. Accordingly, the appropriate order in relation to the prosecutor’s role in those proceedings would be that costs are reserved to be dealt with in accordance with the relevant provisions of the CP Act.

Application of s 181 of the IR Act and Uniform Civil Procedure Rules

  1. As I concluded earlier, s 181 of the IR Act applies in relation to the interlocutory proceedings. Section 181 provides a wide discretion to the Court in exercising its power to award costs and may determine by whom and to what extent costs are to be paid. In Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 at [71] I summarised what I considered to be the principles governing the awarding of costs by the Industrial Court:

[71] The principles I draw from the foregoing discussion of the authorities, which are relevant to these proceedings, and which I propose to apply, may be summarised as follows:

(1) the Court has a wide discretion under s 181 of the IR Act to award costs and may determine by whom and to what extent costs are to be paid ;

(2) rule 42.1 of the UCPR places a limited proscription on the wide discretion to award costs in that the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs;

(3) rule 42.1 of the UCPR reflects the general law position that a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party. Thus, the presumption is that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The qualification, however, means there is no absolute or automatic rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made;

(5) the discretion to award costs must be exercised judicially. The discretion cannot be exercised arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation or the circumstances leading to the litigation;

(6) although the ordinary rule is that costs follow the event, the "event" extends to any disputed question of fact or law and is not limited to "issues" in the technical sense;

(7) it is not necessary to first find in terms or to the effect that it is a most exceptional case, or a strong or exceptional case, before ordering a successful party to pay costs of an unsuccessful party, but there must be a proper basis to do so consistent with r 42.1 of the UCPR ;

(8) whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed;

(9) unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed;

(10) a separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter;

(11) it may be appropriate, where each party has had substantial success, to order that there be no order as to costs;

(12) the exercise of the discretion to award costs is underpinned by notions of fairness; fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the usual rule, it should be applied;

(13) it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument;

(14) where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation;

(15) a successful party may, in appropriate circumstances, be ordered to pay the costs of an unsuccessful party where the Court finds disentitling conduct, or misconduct, on the part of the successful party such as to warrant a costs order against it;

(16) the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute;

(17) in determining whether the successful party is guilty of misconduct (or disentitling conduct), the conduct must relate either or both to the litigation and/or the circumstances leading up to the litigation; and

(18) disentitling conduct does not necessarily need to amount to misconduct.

  1. The foregoing summary is not inconsistent with the principles summarised in an earlier Full Bench decision of the Court in Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 at [8].

  2. In addition to the foregoing principles it is to be noted the Uniform Civil Procedure Rules 2005 (UCPR) deals with costs of interlocutory applications:

42.7 Interlocutory applications and reserved costs

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

  1. In Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 6) [2007] NSWIRComm 285 at [50] the Full Bench referred to circumstances in which a cost order may be made prior to the final order for costs:

[50] …

(a) a question in the proceedings has been separately determined, no issue in the trial of the balance of the proceedings overlaps with the question in the separate determination and no issue in the trial of the balance of the proceedings can cast doubt on the correctness of an order for costs (see Baramon Sales Pty Ltd v Goodman Fielder Mills Limited [2001] FCA 1819 at [6]–[7]);

(b) a question in the proceedings has been separately determined and the question was discrete from any other relief sought in the proceedings (see Charlie Brown Pty Limited and anor v Green and ors (Unreported, Supreme Court of New South Wales, McLelland CJ, 3 July 1995) at 1);

(c) an aspect of the proceedings which has been determined is sufficiently self-contained and detached or detachable from the remainder of the proceedings yet to be heard (see Peter Robert Horrobin v Australia and New Zealand Banking Group Limited (Unreported, Court of Appeal of New South Wales, Priestley JA, 6 June 1997) at 9; Fiduciary Ltd and another v Morningstar Research Pty Ltd and others [2002] NSWSC 432; (2002) 55 NSWLR 1 at [10]);

(d) the proceedings were instituted some time previously and there is a considerable time before the proceedings will be disposed of finally (see Horrobin at 9; Fiduciary at [13]; Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 13) (Unreported, Federal Court of Australia, Lockhart, Lindgren and Tamberlin JJ, 17 August 1995) at [5]; UnitedGlobalCom at [24]).

[51] A guiding factor is whether the “demands of justice” (or the “interests of justice”) support the making of costs order prior to the final order for costs (see Fiduciary at [7]–[8], [18]; Thunderdome Racetimingand Scoring Pty Ltd and another v Dorian Industries Pty Ltd and another [1992] FCA 291; (1992) 36 FCR 297 at 312; UnitedGlobalCom at [16], [24]).

  1. I also note in Floruit Holdings Pty Ltd v Sebastian – Builders and Developers Pty Ltd [2009] NSWCA 411, Bergin CJ in Eq (with whom Allsop P and Young JA agreed) held that a party was entitled to its costs of a separate question, which was a discrete issue, although it ultimately had not succeeded in the principal proceedings by reason of the failure to prove causation.

  2. In Handberg v Chacmol Holdings Pty Ltd (No 2) [2005] FCA 680 at [9] Heerey J observed that where a trial of separate questions determined substantive rights and obligations of the parties, and those matters would not be the subject of further litigation, costs should follow the event in respect of the separate questions.

Costs between the Department and Defendants

  1. In Nash No 2, I ordered that the Department should pay the defendants' costs of the Motions in respect of public interest immunity and client legal privilege. In Nash No 7, the effect of the decision was to reserve costs. The Department seeks to have the costs order in Nash No 2 set aside in light of the decision in Nash No 7 and that given its success it should have its costs of both Nash No 2 and Nash No 7 and the present proceedings.

  2. In relation to the costs of Nash No 2, Nash No 7 and the present proceedings, it seems to me the Department should have its costs. In order to contend that they should have the costs of Nash No 2, Nash No 7 and the present proceedings or that each party should pay their own costs, the defendants relied on two main propositions, namely: (i) that the Department failed to comply with its model litigant obligations because it resisted production/access to documents on the basis of client legal privilege and public interest immunity; and (ii) that the Department’s role in the proceedings was to act “in aid of the Prosecutor preventing the Defendants obtaining documents which go to the question of the breach of duty of disclosure by the Prosecutor”.

  3. As to the second matter, whilst I am unable to explain why the Department so vigorously contested access to material sought by the defendants regarding the capacity of the prosecutor to bring the charges against the defendants, there is an insufficient basis for me to find that the Department acted for the purpose of aiding the prosecutor in denying access to the material. If it had been open to find the Department acted as a mere surrogate for the prosecutor, with no other legitimate reason for denying access, I may have been inclined to take a different view about costs, but it is not open.

  4. In those circumstances, the Department was entitled to rely on the legal protections afforded by the doctrines of privilege and public interest immunity to deny access and, having ultimately succeeded, it is entitled to its costs.

  5. The defendants’ first proposition, that the Department failed to comply with its model litigant obligations by resisting production of documents, is not sustainable. In ABB Power Transmission Pty Ltd v ACCC [2003] FCAFC 261 at [35] the Full Court stated:

[35] We were not directed as to any proper basis upon which without prejudice privilege, if otherwise established, should be withheld. Of course the Commission seeks in these proceedings, as ABB pointed out, very large pecuniary penalties. The consequences for ABB are potentially severe. Nonetheless major litigation usually has severe consequences for the losing party and that in itself is no ground for abrogating privilege. It was said that the Commission was required to conduct the prosecution as a "model litigant" by virtue of the Attorney-General's Legal Services Directions. That may be so, but claiming a well-established privilege, and having that claim upheld by a judge, is not unreasonable conduct for a litigant, whether model or otherwise.

  1. What is more, the Model Litigant Policy applying to the Department provides:

3.3 The obligation does not require that the State or an agency be prevented from acting firmly and properly to protect its interests. It does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made.

3.4 In particular, the obligation does not prevent the State or an agency from:

a) enforcing costs orders or seeking to recover costs;

b) relying on claims of legal professional privilege or other forms of privilege and claims for public interest immunity;

…

  1. Nash No 2, Nash No 7 and the present proceedings are self-contained proceedings, readily separable from the substantive criminal proceedings as far as the Department is concerned. Whatever the result in the substantive proceedings it will not have any consequences for a costs order at this stage in favour of the Department.

  2. In relation to Nash No 4 and Nash No 5, it was the Department and the prosecutor that sought the references to the Full Bench. The referrals were not by consent, with the defendants opposing them.

  3. The orders relating to costs in Nash No 4 and Nash No 5 were that costs were reserved. The defendants submitted there was no proper basis to vary the costs orders in Nash No 4 and Nash No 5 because there had been no material change in circumstances: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, Amalgamated Television Services v Marsden [1999] NSWCA 313 and Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121. In Brimaud, McLelland J stated at 46:

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application.

  1. In Pivotel, Jagot J, after referring to Brimaud, stated at [26]:

[T]he approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

...one or more of the following factors has occurred or is satisfied:

(a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made ...;

(b) there has been a material change in the circumstances since those orders were made;

(c) there are exceptional circumstances which warrant re-consideration of the matter...; and

(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter....

  1. The circumstances that warrant an order for costs at this stage in favour of the Department in relation to Nash No 4 and Nash No 5 are as follows:

  1. Those proceedings are separable from the substantive criminal proceedings in which the Department has no part to play.

  2. As far as the Department is concerned, no purpose is served by continuing to reserve costs when the references it sought under s 196 of the IR Act have been determined in the Department’s favour, bringing an end to the privilege/immunity issues raised by the Department.

  3. Even if the defendants were ultimately successful in defending the charges against them, costs in relation to the substantive criminal proceedings would need to be determined in accordance with the costs provisions of the CP Act. There is no provision in that Act to order costs for or against the Department.

  4. Notwithstanding (3) above, even if costs in relation to Nash No 4 and Nash No 5 were reserved until the conclusion of the substantive criminal proceedings and were then to be determined pursuant to s 181 of the IR Act, there would be no proper basis to award costs of Nash No 4 and Nash No 5 to the defendants even if they had successfully defended the charges. The costs in those proceedings are costs in the cause of the privilege/immunity claim, not costs in the cause of the substantive criminal trial.

  1. The defendants submitted the Court would need to be satisfied that there were special reasons to award costs against the defendants in Nash No 4 and Nash No 5: Taylor v Environment Protection Authority at [37] - [47] per Sperling J (Meagher JA and James J agreeing).

  2. In Taylor, Sperling J was concerned with the question of costs to be awarded by a superior court, the Court of Criminal Appeal, in relation to a case stated under s 5AE of the CA Act. The issue in the present proceedings concerns the question of costs in relation to proceedings that considered whether a single judge of the Industrial Court should state a case to a superior court, the Full Bench of the Industrial Court, and, if so, the terms of that case.

  3. The costs question in Taylor was determined presumably pursuant to s 5AE(2), which provides that the Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. The costs question in the present proceedings is to be determined pursuant to s 181 of the IR Act. That section provides a wide discretion to order costs: Inspector Wolf v Rockdale Beef Pty Ltd (No 2) at [16]; Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) at [31]; Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) at [71]. There is no indication that the Court’s power to award costs under s 181 is fettered by the need to consider special circumstances or special reasons. The Court would have regard to all relevant circumstances guided by the general principle that costs follow the event.

  4. Different considerations might apply to whether and to whom costs should be awarded in applications for a stated case under s 196 of the IR Act if there was consent or no issue between the parties as to the terms of the case to be stated by the judge, or if the judge determined on his or her own motion to state a case, or if no question of law was raised, or if an application was lacking in merit, or if a party acted unreasonably, or if the stated case was of general importance. However, where a party raises an appropriate question of law for consideration by the superior court and the reference application is opposed it seems to me the applicant, if successful in having the question referred and in the reference itself, is entitled to its costs.

Costs between the Prosecutor and the Defendants

  1. The prosecutor seeks an order that the defendants pay her costs in respect of the interlocutory proceedings in Nash No 2, Nash No 4, Nash No 5, Nash No 7 and the present proceedings. The prosecutor submitted she was the successful party and costs should follow the event. The prosecutor further submitted there had been no conduct on her part in the interlocutory proceedings that could properly be regarded as conduct which would disentitle her to an order for her costs in the interlocutory proceedings.

  2. An obvious proposition, given what I have determined regarding the Department, is that as the prosecutor is in no different position to the Department, she should have her costs at this stage of the proceedings for the same reasons that the Department will receive its costs.

  3. The prosecutor, however, is in a different position. Her role in the substantive criminal proceedings is ongoing whereas interlocutory proceedings involving the Department have been concluded and any costs order now made in respect of the Department will be unaffected by the outcome in the main proceedings.

  4. Despite the distinction that can be made between the Department and the prosecutor, in my view there is no legitimate scope to exercise my discretion to reserve costs between the prosecutor and the defendants until the final outcome in the substantive criminal proceedings. I take that view for the same reasons I expressed in relation to the Department. The proceedings in Nash No 2 and the reversal of those findings in Nash No 7 related to matters distinct from the substantive issues in the criminal proceedings. The same must be said of Nash No 4 and Nash No 5. In those circumstances, costs should be given separate consideration and treatment from whatever costs outcome is appropriate in the criminal proceedings.

  5. I should deal with the defendants’ submission regarding fairness. It was submitted that the idea of fairness underlies the making of costs orders. The defendants submitted the prosecutor acted unfairly in that although she had a clear duty to disclose to the defendants any issues with the validity of the appointment of Mr Regan because it was a matter which would tend to assist the defence case, the prosecutor failed to do so. That failure, it was submitted, was the trigger for the extensive proceedings that followed. Therefore, as I earlier explained, the defendants claimed the prosecutor should pay their costs of Nash No 2 and Nash No 7 or, in the alternative, each party should pay its own costs and the costs of Nash No 4 and Nash No 5 should continue to be reserved.

  6. I have to admit to some disquiet that both the prosecutor and the Department did their utmost to avoid producing material sought by the defendants in relation to the validity of Mr Regan’s appointment in circumstances where the capacity of the prosecutor to institute the proceedings is an essential legal element of the charge: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [37]-[38]. However, I made no finding in the interlocutory proceedings that there was a failure by the prosecutor to disclose to the defendants the issue about the validity of the appointment of Mr Regan. In the absence of any such finding I could not justify a costs order in the defendants’ favour.

Orders

  1. The Court makes the following orders:

  1. Orders (2) – (8) made on 13 August 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 are set aside.

  2. The claims of client legal privilege made by the Director-General of the Department of Trade and Investment, Regional Infrastructure and Services (“the Department”) in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013) is upheld.

  3. The Department is excused from producing any document that is properly the subject of a claim of client legal privilege in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013).

  4. The Department's claims of public interest immunity be upheld in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:

  1. any alleged defect in, or in the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;

  2. clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.

  1. The Department is excused from producing any document that is properly the subject of a claim of public interest immunity in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:

  1. any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;

  2. clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.

  1. Noted that in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283, the Court upheld the Department’s claims of public interest immunity in respect of documents in Confidential exhibits MP-E to MP-F.

  2. The defendants shall pay the costs of the Department and of the prosecutor in relation to these costs proceedings and shall pay the costs of the prosecutor and the Department in relation to the proceedings in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 and Nash v Glennies Creek Coal Management Pty Ltd (No 7) [2014] NSWIC 5 as agreed or assessed.

  3. Order (4) made on 13 September 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 is set aside.

  4. Order (3) made on 19 November 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 is set aside.

  5. The defendants shall pay the costs of the Department and the prosecutor in relation to the proceedings in Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 and Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99 as agreed or assessed.

**********

Decision last updated: 30 January 2015

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Cases Cited

13

Statutory Material Cited

11

Nash v Glennies Creek Coal Management Pty Ltd (No 7) [2014] NSWIC 5
Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121