Nash v Resource Pacific Pty Ltd (No 4) - [2019] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation: Nash v Resource Pacific Pty Ltd (No 4) [2019] NSWSC 1253
Hearing dates: 8 September 2018
Date of orders: 20 September 2019
Decision date: 20 September 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The defendant shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.

Catchwords: COSTS – application that the prosecutor pay the defendant’s costs – prosecution under s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 – summary proceedings determined by this Court under Pt 5 of Ch 4 Criminal Procedure Act 1986 (NSW) – prosecutor failed to prove the defendant committed the charged contraventions of s 8(2) (other than particulars 9 and 11) and s 10(2) – defendant make out statutory defence for particulars 9 and 11 – principles from Latoudis v Casey – whether available for OHS proceedings where dismissed via statutory defence – where prosecution dismissed – significance of dismissal by successful statutory defence – whether principles in Latoudis v Casey distinguishable – charges and conduct of parties in considering exercise of costs discretion – costs to defendant
Legislation Cited: Coal Mine Health and Safety Act 2002 (NSW)
Criminal Procedure Act 1986 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280
Category: Costs
Parties: Jennifer Ann Nash (Prosecutor)
Resource Pacific Pty Ltd (Defendant)
Representation:
Counsel:
JV Agius SC with RJ Rankin (Prosecutor)
ML Shume (Defendant)
Solicitors:
Crown Solicitors Office (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s): 2016/00019616; 2016/00019632

Judgment

HIS HONOUR: On 15 February 2011, a prosecution was instituted by Robert William Regan, for whom Ms Jennifer Ann Nash (“the prosecutor”) was substituted by order of the Industrial Court of New South Wales on 7 March 2018, against Resource Pacific Pty Ltd (“the defendant”).
The charges against the defendant are specified in further amended applications for order filed on 11 June 2013. The defendant was charged therein with one breach of s 8(2) (matter number 2016/00019616) and one breach of s 10(2) (matter number 2016/00019632) of the Occupational Health and Safety Act 2000 (NSW) (“the OHS Act”) (collectively, “the matters”). These two breaches were pleaded by the prosecutor as occurring on 18 February 2009 at the defendant’s place of work, the Ravensworth Underground Mine (“the Mine”), near Singleton in New South Wales. The Mine was both a coal workplace within the meaning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1253
Decision Date: 20 September 2019

CaseChat Overview and Summary

The case of Nash v Resource Pacific Pty Ltd (No 4) was an application by the defendant for the prosecutor to pay the defendant's costs, arising from proceedings under sections 8(2) and 10(2) of the Occupational Health and Safety Act 2000. The summary proceedings were determined by the Local Court under Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (NSW). The defendant, Resource Pacific Pty Ltd, sought to have the prosecutor, represented by the Director of Public Prosecutions, pay its costs as the charges were dismissed due to the defendant successfully establishing a statutory defence for particulars 9 and 11, and the prosecutor failing to prove the remaining contraventions. The defendant's application was based on the principles established in Latoudis v Casey, which allow for the successful party to be compensated for costs when the opposing party's case is dismissed due to a successful statutory defence.

The court needed to decide whether the principles from Latoudis v Casey applied in occupational health and safety proceedings, particularly when the charges are dismissed via a statutory defence. The court also considered whether the dismissal of the prosecution by a successful statutory defence was a significant factor in exercising the costs discretion, and if the charges and conduct of the parties played a role in this decision. The court examined whether the circumstances in Latoudis v Casey were distinguishable from the present case and how these principles could be applied to the specific context of occupational health and safety legislation.

The court found that the principles from Latoudis v Casey could indeed be applied in occupational health and safety proceedings, even when the dismissal was due to a successful statutory defence. The significance of the dismissal by a statutory defence was considered, and the court held that it was a significant factor in exercising the costs discretion. The conduct of the parties, including the prosecutor's failure to prove the charges, also played a role in the decision. Ultimately, the court held that the principles in Latoudis v Casey were not distinguishable from the present case and ordered that the defendant be compensated for its costs.

Orders