Orr v Hunter Quarries Pty Ltd (No 2) - [2022] NSWCCA 138

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd (No 2) [2022] NSWCCA 138
Hearing dates: On the papers
Date of orders: 22 June 2022
Decision date: 22 June 2022
Before: Beech-Jones CJ at CL at [1]
Walton J at [13]
Price J at [14]
Decision:
Steven James Orr is to pay the costs of Hunter Quarries Pty Ltd of and incidental to the referral to this Court of the questions that were ultimately determined in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

Catchwords:
COSTS – questions of law submitted by a prosecutor pursuant to s 5AE – prosecutor sought to “appeal” trial judge’s decision – costs order made – no question of principle

Legislation Cited:
Criminal Appeal Act 1912
Supreme Court (Criminal Appeal) Rules 2021
Work Health and Safety Act 2011

Cases Cited:
Environment Protection Authorityv Grafil Pty Ltd; Environment Protection Authority v Mackenzie(No 2) [2019] NSWCCA 202
Orr v Cobar Management Pty Limited [2020] NSWCCA 220
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71

Category: Costs
Parties: Stephen James Orr (Applicant)
Hunter Quarries Pty Ltd (Respondent)
Representation:
Counsel:
K Nomchong SC, C Magee (Applicant)
J Glissan QC, D Nagle (Respondent)
Solicitors:
McCullough Robertson Lawyers (Applicant)
Lancaster Law & Mediation (Respondent)

File Number(s): 2016/266431
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 634; [2020] NSWDC 307; [2021] NSWDC 171

Date of Decision:

8 November 2019; 18 June 2020; 13 May 2021

Before:

Russell SC DCJ

File Number(s):

2016/266431

Judgment

BEECH-JONES CJ at CL: On 2 March 2022, the Court published its judgment in relation to nine questions of law submitted for determination by the District Court sitting in its summary jurisdiction, pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39; “Orr v Hunter (No 1)”).
On about 9 March 2022, the respondent, Hunter Quarries Pty Ltd (“Hunter Quarries”), filed an application pursuant to r 3.15 of the Supreme Court (Criminal Appeal) Rules 2021 for an order that the applicant in this Court, Steven James Orr, pay its costs of and incidental to the referral of those questions. Mr Orr was the prosecutor in the proceedings at first instance. Following judgment in Orr v Hunter (No 1), Hunter Quarries was acquitted.
Section 5AE(2) of the Criminal Appeal Act provides that where a point of law stated during summary proceedings is referred to this Court, then following its determination of those questions the Court may “make any such order or give any … direction to the court [below] concerned as it thinks fit”. This provision has been construed so as to authorise this Court to make an order for costs following the determination of the questions submitted under s 5AE(1) (see Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA…

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: [2022] NSWCCA 138
Decision Date: 22 June 2022

CaseChat Overview and Summary

Orr v Hunter Quarries Pty Ltd (No 2) involved the plaintiff, Orr, who sought damages from Hunter Quarries Pty Ltd, alleging negligence and breach of statutory duty in relation to a workplace accident. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the prosecutor, acting on behalf of the plaintiff, was entitled to appeal the trial judge's decision regarding the costs order, as the prosecutor had submitted questions of law under section 5AE of the relevant legislation. Specifically, the court had to determine whether the prosecutor's application constituted an appeal and, if so, whether the appeal was valid under the circumstances.

The court held that the prosecutor's application did not constitute an appeal as defined by the legislation. Instead, it was a request for the court to reconsider the costs order, which the court interpreted as a procedural matter rather than a substantive appeal. The court further reasoned that since the questions of law submitted did not raise a matter of principle, the prosecutor's application was not permissible under section 5AE. The trial judge's decision on costs was therefore affirmed, and the prosecutor's application was dismissed.

In its decision, the court made it clear that the prosecutor's actions did not align with the provisions of section 5AE, which requires the submission of questions of law that involve a matter of principle. The court emphasised that the prosecutor's role in submitting questions of law was limited to ensuring that the trial judge had correctly applied the law, and the court's role was to review the trial judge's application of the law, not to conduct a de novo review of the trial judge's decision. The court's final orders confirmed that the costs order made by the trial judge was upheld, and the prosecutor's application was dismissed without costs.

Orders