Nash v Resource Pacific Pty Ltd (No 4)

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.