Nash v Silver City Drilling (NSW) Pty Ltd

[2017] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
Hearing dates:	24 March 2017
Decision date:	16 May 2017
Before:	Basten JA at [1]; Hoeben JA at [24]; Walton J at [25]
Decision:	(1)   Dismiss the summons filed by the applicant on 8 March 2017.  (2)   Make no order as to the costs of the proceedings in this Court.
Catchwords:	APPEAL AND REVIEW – judicial review – refusal to award costs to prosecutor under Criminal Procedure Act 1986 (NSW), s 257B – whether prosecutor had right of appeal under Criminal Appeal Act 1912 (NSW) s 5AA – whether refusal to award costs is an “order” – whether prosecutor is a “person” – whether judicial review appropriate remedy
Legislation Cited:	Crimes Legislation Further Amendment Act 2003 (NSW), Sch 3 Criminal Appeal Act 1912 (NSW), ss 2, 5AA, 5AB, 5D Criminal Procedure Act 1986 (NSW), ss 14, 253, 257B, 257C, 257D; Ch 4, Pt 5, Div 3, 4 Courts Legislation Amendment Act 2006 (NSW), Sch 2 Statute Law (Miscellaneous Provisions) Act 2004 (NSW), Sch 1.9 Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases Cited:	Boulter v Kent Justices [1897] AC 556 Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210; [2003] NSWCCA 356 Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 Riley v Parole Board of New South Wales (1985) 3 NSWLR 606 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 The King v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draftsman of Australia (1950) 82 CLR 54
Category:	Principal judgment
Parties:	Jennifer Ann Nash (NSW Department of Industry, Skills and Regional Development) (Applicant) Silver City Drilling (NSW) Pty Ltd (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: Mr J Agius SC/Mr C Magee/Ms J McDonald (Applicant) Mr A Harris QC/Mr N Floreani (First Respondent)   Solicitors: Lea Armstrong, Crown Solicitor (Applicant) Lee Legal Group (First Respondent)
File Number(s):	2017/72435
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 August 2016 Before: Curtis DCJ File Number(s): 2014/242201

Judgment

1. BASTEN JA: On 12 August 2016 the respondent, Silver City Drilling (NSW) Pty Ltd, was sentenced under s 32 of the Work Health and Safety Act 2011 (NSW) (Work Safety Act) for a breach of the duty imposed by s 19(1) of that Act. The District Court imposed a fine but declined to award costs in favour of the successful prosecutor. On 8 March 2017, the prosecutor, Ms Nash, sought relief in the supervisory jurisdiction of this Court with respect to the refusal by the District Court to order costs in her favour. This somewhat unusual course was taken as a precaution in the light of submissions put on behalf of the respondent that there was no appeal to the Court of Criminal Appeal from the refusal to make a costs order.

2. For the reasons which follow, there was no substance in the challenge to jurisdiction and, accordingly, the proceedings in the supervisory jurisdiction were unnecessary. They should be dismissed, but with no order as to costs.

Appellate jurisdiction

3. The right of appeal relied upon by the prosecutor was to be found in s 5AA of the Criminal Appeal Act 1912 (NSW) which, so far as relevant, provides:

5AA   Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction

(1)   A person:

(a)   convicted of an offence, or

(b)   against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or

(c)   in whose favour an order for costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

(1A)   An appeal against an order referred to in subsection (1)(c) may only be made with the leave of the Court of Criminal Appeal.

…

(4)   The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.

…

(7)   This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.

4. The facts underlying these proceedings are more extensively set out in the companion judgment in the Court of Criminal Appeal. It is sufficient for present purposes to note that, as a result of a serious injury suffered by a drill operator on 12 August 2012, the respondent employer was charged with contravening s 32 of the Work Safety Act, through a breach of the “health and safety duty” imposed by s 19(1) of the Act. On 21 July 2016 the charge was listed for trial before Curtis DCJ, at which time the company entered a plea of guilty. The matter was stood over for sentencing. Following a hearing on sentence on 4 August 2016, judgment was delivered on 12 August 2016 imposing a fine in an amount of $112,000.

5. The prosecutor sought an order for costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). After providing short reasons, the sentencing judge concluded:

“I decline to order that the defendant pay the prosecutor’s costs.”

An order was entered in those terms on that date.

6. The respondent challenged the jurisdiction of the Court under s 5AA of the Criminal Appeal Act on two grounds. First, it submitted that the language of the judge (“decline to order … costs”) was not the dismissal of an application for an order for costs, within the second limb in s 5AA(1)(b). Nor was it an “order” from which an appeal might be brought within the concluding words of s 5AA(1).

7. The second ground on which jurisdiction was resisted was that the prosecutor, Ms Nash, was not a “person” for the purposes of s 5AA(1).

(a)   scope of “order”

8. In written submissions, the respondent relied squarely upon the judgment of this Court in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd. [1] The respondent referred in particular to the statement by Spigelman CJ that “[i]n its natural and ordinary meaning, the word ‘order’ would not encompass a refusal to make an order.”[2] For that proposition, the Chief Justice relied upon the reasoning of Fullagar J in TheKing v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draftsman of Australia,[3] and of Lord Herschell in Boulter v Kent Justices. [4]

   1. (2003) 59 NSWLR 210; [2003] NSWCCA 356 (Spigelman CJ, Studdert and Hulme JJ).

   2. Roslyndale at [33].

   3. (1950) 82 CLR 54 at 90.

   4. [1897] AC 556 at 567; Roslyndale at [34].

9. A key lesson which may be derived from the judgment of the Chief Justice in Roslyndale is the importance of paying close attention to the words of the specific statute and to the relevant legislative history. Thus, s 5AA(1) provided, as applied in Roslyndale:

5AA   Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction

(1)   A person-

(a)   convicted of an offence; or

(b)   against whom an order to pay any costs is made,

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

10. Judgment was delivered in Roslyndale on 3 December 2003. On 5 December 2003 assent was given to the Crimes Legislation Further Amendment Act 2003 (NSW), which added par (c) in s 5AA(1) and added to par (b) “, or whose application for an order for costs is dismissed”. [5] (Similar amendments were made with respect to s 5AB, which was also in issue in Roslyndale.)

    5. Crimes Legislation Further Amendment Act, Sch 3 [1] and [2].

11. Although the term “order” was not changed, its meaning was changed. Before the amendment to par (b), it was no doubt true that “order” did not include the dismissal of an application; after the additional words were added in par (b), the word “order” (last appearing in subs (1)) must have included a dismissal of an application, because, were that not so, the additional words would have been ineffective. Nor is there any reason why that should not be so. The conventional way in which a court dismisses an application for an order is to make an order dismissing the application. Such an order may take one of several forms, including “application dismissed”, “dismiss the application” or “refuse the application”. The terminology is unimportant; the effect is the same in each case, namely an order dismissing the application.

12. It follows that the first ground relied upon by the respondent must be rejected.

(b)   meaning of “person”

13. The respondent’s second proposition is that the term “person” does not include “the Crown” or “an aggrieved government authority”.

14. The avoidance in the submission of the statutory language is revealing. Section 5AA(1) does not confer a right of appeal on “the Crown” nor on any “government authority”. Accordingly, it is not necessary to identify what might be meant by “the Crown” in such a context. The expression is notoriously imprecise.

15. However, the respondent sought to compare the terms of s 5AA with those of s 5D, which refers to proceedings in which “the Crown was a party”, a phrase which required its own definition in s 5D(2). The respondent then submitted that to confer a right of appeal on the prosecutor by s 5AA would be to duplicate the power for an unsuccessful prosecutor to appeal the refusal of an order for costs under s 5D.

16. The strength of the submission lay in the fact that the right of appeal under s 5D(1) is conferred on the Attorney General and the Director of Public Prosecutions. The present applicant is neither, but is rather an officer in the Department of Industry, Skills and Regional Development authorised to bring prosecutions under the Work Health and Safety Act. It is improbable that Parliament would vest a right of appeal specifically in the most senior law enforcement officers in the State in one provision, and then allow a similar power to be exercised by any person able to prosecute an offence. The question, however, is whether there is indeed overlapping jurisdiction in the sense alleged.

17. In its terms, s 5D(1) is restricted to an appeal on behalf of the prosecution “against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party”. Accordingly, there are a number of further steps which must be taken in order for the respondent to make good its submission as to overlapping powers. First, it is necessary to equate an order for costs with a “sentence” for the purposes of s 5D. However, at this point, the respondent is hoist on its own petard. The definition of “sentence” in s 2(1) of the Criminal Appeal Act relevantly provides:

“Sentence means:

…

(h) any order for the payment of costs made by the court of trial in respect of a person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986 ….”

18. A definition using the term “means” is generally to be understood as exhaustively defined by what follows. Because the definition of “sentence” has 11 paragraphs, which include many kinds of order which would not ordinarily be thought of as part of the sentence, the general rule should apply and the language adopted should be treated as exhaustive. In accordance with the authorities discussed in Roslyndale, the phrase “an order for the payment of costs” would not ordinarily be understood to include the refusal to order payment of costs. No reason was put forward not to give that language its ordinary meaning (as there was in the case of s 5AA). Accordingly, there is no right of appeal to a prosecutor under s 5D with respect to the refusal to order costs. For this purpose Roslyndale remains good law.

19. As an aside, a literal reading of par (h) in the definition of “sentence” would give it no content. When the paragraph was inserted in its present form in 2004, [6] the power to award costs was to be found in s 253 of the Criminal Procedure Act, which was then in Ch 4, Pt 5, Div 3. Section 253 was repealed in 2006,[7] by legislation which inserted s 257B and s 257C. However, those provisions were placed in a new Div 4, not Div 3; the definition of “sentence” in the Criminal Appeal Act was not amended.

    6.    Statute Law (Miscellaneous Provisions) Act 2004 (NSW), Sch 1.9[3].

    7. Courts Legislation Amendment Act 2006 (NSW), Sch 2[7].

20. Despite the absence of a consequential amendment, the definition of “sentence” should be understood to refer to orders for the payment of costs made under Div 4 of Pt 5 of Ch 4 of the Criminal Procedure Act. This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention. [8]

    8. See Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 304 (Gibbs CJ); 310-311 (Stephen J); Riley v Parole Board of New South Wales (1985) 3 NSWLR 606 at 632B (Priestley JA, McHugh JA agreeing); Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 at [32] (Basten and Bell JJA, Beazley JA agreeing).

21. Returning to the principal submission, it is necessary to ask why an officer with authority to prosecute for an offence is not a “person” for the purposes of s 5AA(1). A person charged with an offence may have a right to costs if the matter is dismissed or withdrawn, pursuant to s 257C of the Criminal Procedure Act, and would have a right of appeal, subject to the limitations imposed by s 257D. However, the submission requires that the prosecutor, who also has an entitlement to costs in specified circumstances, cannot appeal from a refusal to award costs. Although the positions of the accused and the prosecutor with respect to costs are not identical, each has some form of entitlement under the relevant provisions of the Criminal Procedure Act and it is not self-evident that the language of the statute allows for a limitation to be imposed on the right of appeal which excludes one, but not the other.

22. In Sasterawan v Morris,[9] the Court of Criminal Appeal considered the scope of the reference to “any person” in s 14 of the Criminal Procedure Act, conferring a right to institute a prosecution. Although the means of commencement varied as between “a person other than a police officer or public officer”,[10] and “a police officer or public officer”,[11] the Court concluded that the reference to “any person” in s 14, headed “Common informer”, covered both classes. There is no reason why a similar construction should not be given to the term “person” where it appears in s 5AA of the Criminal Appeal Act.

    9. (2007) 69 NSWLR 547; [2007] NSWCCA 185.

    10. Criminal Procedure Act, s 174(1).

    11. Criminal Procedure Act, s 173.

Conclusion

23. It follows that there was an appeal available to the prosecutor in the District Court, pursuant to s 5AA of the Criminal Appeal Act, from the order refusing to award costs in her favour. An appeal having been lodged pursuant to that provision, the proceedings in the supervisory jurisdiction of the Court of Appeal are otiose. The following orders should be made:

1. Dismiss the summons filed by the applicant on 8 March 2017.

2. Make no order as to the costs of the proceedings in this Court.

24. HOEBEN CJ at CL: I agree with Basten JA.

25. WALTON J: I agree with the orders proposed by Basten JA for the reasons given by his Honour.

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Endnotes

Decision last updated: 16 May 2017