Perilya v Nash

[2015] NSWSC 706

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Perilya Limited v Nash [2015] NSWSC 706

Hearing dates:

15 April 2015

Decision date:

05 June 2015

Jurisdiction:

Common Law

Before:

Hall J

Decision:

In each of proceedings 2014/328915 and 2014/328923, orders made that:

(1) Leave be granted to the plaintiff to appeal against conviction pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2001.

(2) The appeal against conviction in Ground 1 be dismissed.

(3) Leave granted to the plaintiff to appeal in respect of the penalties imposed by the Local Court on 13 October 2014.

(4) The appeal against penalties in Grounds 2 and 3 be dismissed.

(5) Leave to appeal refused in respect of the appeal for the costs order made by the Local Court on 13 October 2014 in Ground 4.

(6) Leave granted to either party to apply on the issue of the costs of these proceedings.

Catchwords:

WORKPLACE SAFETY – Statutory powers of investigation – Power of a Regulator to issue Notices under s 155 Workplace Health and Safety Act 2011 – Prosecution for failure to comply with Notices – whether Notices under s 155 were beyond power and therefore invalid – Scope of the coercive power under s 155 is determined by the conditions specified in the section including the existence of ‘reasonable grounds for belief’ as specified in s 155(1) as to the capacity of a person to give information, provide documents etc in relation to the specified wide-ranging functions of the Regulator – the Notices issued under s 155 were within power – Notice to recipient to produce ‘Board Minutes’ within power – Recipient not entitled to refuse production on the basis of relevance – Confidentiality provisions in the Act provide necessary protection in respect of confidentiality of documents and other records – No extraterritorial operation of the Notices – Appeal against conviction dismissed – Whether penalties imposed were excessive – Whether principle of totality reflected in penalties – Failure to provide the same documents in response to Notices under s 155(1) amounted to two separate acts of criminality – Penalties within available range and properly reflected overall criminality – No error demonstrated - Penalties were not excessive.

CRIMINAL LAW – Appeal from Local Court against conviction– Failure to comply with Notices to Produce issued under s 155(1) Work Health and Safety Act 2011 – Convicted of offences under s 155(5) – Whether right to appeal under Crimes (Appeal and Review) Act 2001 applied – Whether the issues raised as to construction of the limitations on s 155(1) WHS Act amounted to question of law alone or a question of mixed law and fact for the purposes of appeal

COSTS – Appeal from costs order made by Local Court Magistrate – Prosecutor had provided Magistrate with a ‘Schedule of Costs’ - Whether costs sought in the Schedule were ‘just and reasonable’ – Respondent had been given hearing on costs and had made submissions – No objection raised to the costs in the ‘Schedule’ – Magistrate had relevant information to determine that the costs sought were just and reasonable in all the circumstances – Leave to appeal from costs order refused.

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth).
Broadcasting Act 1942 (Cth)
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Income Tax Assessment Act 1936 (Cth)
Occupational Health and Safety Act 2000 (NSW)
Work Health and Safety Act 2011

Cases Cited:

Cahyadi v R (2007) 168 A Crim R 41
Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552
Deveson v Australian Broadcasting Tribunal (1991) 32 FCR 124
Director General of NSW Dept of Agriculture v Temmingh [2003] NSWSC 598
Federal Commission of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499
Ly v Jenkins (2001) 114 FCR 237
Pearce v The Queen (1998) 194 CLR 610

Texts Cited:

DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Butterworths, Sydney 2006

Category:

Principal judgment

Parties:

Perilya Limited (Plaintiff)
Jennifer Nash (Defendant)

Representation:

Counsel:
B Hodgkinson SC; J Paingakulam (Plaintiff)
JV Agius SC; R Ranken (Defendant)

Solicitors:
Colin, Biggers & Paisley Lawyers (Plaintiff)
Norton Rose Fulbright Australia (Defendant)

File Number(s):

2014/328915; 2014/328923

Judgment

1. These proceedings are brought by way of two Amended Summonses filed 2 April 2015 in this Court pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 (the “CAR Act”). They concern two decisions made by her Honour Magistrate Goodwin of the Downing Centre Local Court on 13 August 2014 whereby Perilya Limited, (“the plaintiff”), was found guilty of two offences of failure to comply with Notices to Produce documents under s 155(5) of the Work Health and Safety Act 2011 (NSW) (WHS Act). Magistrate Goodwin imposed a fine of $20,000 in respect of each of the two offences and made a costs order against the company in the sum of $74,281.00.

2. The two Notices to Produce in question were issued under s 155 of the WHSAct. The plaintiff seeks an order setting aside the convictions and also seeks leave to appeal from the sentences imposed by Magistrate Goodwin on 13 October 2014 together with an order remitting the matter to the Local Court for variation of sentence. Finally, the plaintiff also appeals the costs orders made against it by Magistrate Goodwin on 13 October 2014. The terms of the four grounds of appeal relied upon in each of the Amended Summonses are set out at [50] below.

3. The respondent, Jennifer Nash, an appointed investigator and prosecutor acting on behalf of the Department of Trade, Investment, Regional Infrastructure and Services, opposes the summonses and submits that they should be dismissed.

Appeals from Local Court to Supreme Court

4. The present proceedings are brought pursuant to s 52(1) of the CAR Act. In the event that the proceedings do not involve “a question of law alone” as required by that section, the plaintiff’s counsel in opening submissions stated that reliance would be placed on s 53(1) of that Act. The relevant provisions are in the following terms:

“52   Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone.

…

53   Appeals requiring leave

(1)   Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a)   a question of fact, or

(b)   a question of mixed law and fact,

but only by leave of the Supreme Court.

…”

The Work Health and Safety Act 2011

5. The WHS Act came into operation on 1 January 2012. Divisions 2-4 of the Act impose duties and obligations upon individuals and businesses in relation to workplace health and safety. The primary duty of care is provided in s 19 of the Act. It is in the following terms:

19 Primary duty of care

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision and maintenance of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

(e)   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4)   If:

(a)   a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and

(b)   the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available,

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5)   A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

6. Part 2, Division 5 of the Act creates various offences in relation to contraventions of the specified statutory health and safety duties contained in Divisions 2-4 of Part 2.

7. Part 8 of the WHS Act identifies the regulator’s functions and powers. In Part 8, Division 1, the functions of the Regulator are set out in s 152. One is the function “To monitor and enforce compliance with this Act”: s 152(b). The performance of that function would embrace both past contraventions as well as reviewing workplaces and systems in order to mitigate or reduce workplace risks to health and safety.

8. Section 153(1) of the Act provides that, subject to the Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Section 153(2) provides that without limiting s 153(1), the regulator has all the powers and functions that an inspector has under the Act.

9. In Part 8, Division 2, the WHS Act prescribes the powers of the regulator to obtain information. These include coercive powers prescribed by s 155. That section is central to the issues arising in the present proceedings:

155 Powers of regulator to obtain information

(1)   This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act. (emphasis added)

(2)   The regulator may, by written notice served on the person, require the person to do one or more of the following:

(a)   to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge,

(b)   to produce to the regulator, in accordance with the notice, those documents,

(c)   to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents.

(3)   The notice must:

(a)   state that the requirement is made under this section, and

(b)   contain a statement to the effect that a failure to comply with a requirement is an offence, and

(c)   if the notice requires the person to provide information or documents or answer questions:

(i)   contain a statement about the effect of sections 172 and 269, and

(ii)   state that the person may attend with a legal practitioner.

(4)   The regulator must not make a requirement under subsection (2) (c) unless the regulator has taken all reasonable steps to obtain the information under subsections (2) (a) and (b) and has been unable to do so.

(5)   A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

(6)   Subsection (5) places an evidential burden on the accused to show a reasonable excuse.

(7)   Section 172 (with any necessary changes) applies to a requirement under this section.

10. As discussed below, the WHS Act contains protective provisions. In particularly, s 271 is directed at ensuring confidentiality in relation to information obtained. Section 271 provides:

271 Confidentiality of information

(1)   This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).

(2)   The person must not do any of the following:

(a)   disclose to anyone else:

(i)   the information, or

(ii)   the contents of or information contained in the document,

(b)   give access to the document to anyone else,

(c)   use the information or document for any purpose.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

(3)   Subsection (2) does not apply to the disclosure of information, or the giving of access to a document or the use of information or a document:

(a)   about a person, with the person’s consent, or

(b)   that is necessary for the exercise of a power or function under this Act, or

(c)   that is made or given by the regulator or a person authorised by the regulator if the regulator reasonably believes the disclosure, access or use:

(i)   is necessary for administering, or monitoring or enforcing compliance with, this Act, or

(ii)   is necessary for the administration or enforcement of another Act prescribed by the regulations, or

(iii)   is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety, or

(iv)   is necessary for the recognition of authorisations under a corresponding WHS law, or

(v)   is required for the exercise of a power or function under a corresponding WHS law, or

(d)   that is required by any court, tribunal, authority or person having lawful authority to require the production of documents or the answering of questions, or

(e)   that is required or authorised under a law, or

(f)   to a Minister.

(4)   A person must not intentionally disclose to another person the name of an individual who has made a complaint in relation to that other person unless:

(a)   the disclosure is made with the consent of the complainant, or

(b)   the disclosure is required under a law.

Maximum penalty:

(a)   in the case of an individual—$10,000, or

(b)   in the case of a body corporate—$50,000.

Factual Background

11. The plaintiff is an Australian company with a registered office in Perth, Western Australia. It is a member of a group of companies (The Perilya Group) that carries on the business of mining operations. The plaintiff is the holding company of Perilya Broken Hill Limited (PBHL) which, at all material times, operated a zinc, lead and silver mine at Broken Hill. On 8 June 2012 a worker employed by PBHL, Mr Pollard, fell approximately 14 metres down a mine shaft at the Broken Hill mine. According to the submissions of both parties he was seriously injured. This was referred to in the proceedings as the 2012 incident or accident.

12. The Department of Trade, Investment, Regional Infrastructure and Services commenced an investigation into the incident. The Department is a “Regulator” for the purposes of s 155 of the WHS Act. During the course of the investigation a large number of notices were issued under s 155 to the plaintiff company and other companies in the Perilya Group of companies. Most of these notices were complied with by the plaintiff and its associated entities.

13. As part of the investigation a number of documents were sought on 22 May 2013. On that date, Mr Smith, an investigator appointed under the Act, issued s 155 Notice, No 130522, (the “May Notice”) which directed production by the plaintiff of the following documents:

“a)   Item D – The minutes of the meetings of the Board of Directors which were convened between 24 May 2008 and 30 December 2012; and

b)   Item H – Any reports, memorandums or other documents which were prepared between 24 May 2008 and 30 December 2012, by or at the direction of the company executive or other managers, for the purpose of advising the Board of Directors of matters relating to safety performance at the mine (Respondent’s Outline of Submissions p 2).

14. Documents within Items D and H were provided in answer to the Notice but they contained a number of redactions.

15. On 20 November 2013 Mr Smith issued to the plaintiff a s 155 Notice, No 131120, (the “November Notice”) which sought production of:

“a)   Un-redacted copies of the minutes of the meetings of the Board of Directors of Perilya Limited which were convened between 24 May 2008 and 30 December 2012; and

b)   Un-redacted copies of documents the applicant had produced on 21 June 2013 specifically:

Perilya Group Health and Safety reports;

PBHL Health Safety and Environment reports’ and

PBHL Operations reports

For the period 24 May 2008 and 30 December 2012.” (Respondent’s Outline of Submissions p 3).

16. Time for compliance with this Notice was extended to 26 November 2013 after a request from the plaintiff’s solicitors.

17. The two categories of documents specified in the November Notice were referred to by both parties in these proceedings as the “disputed documents”.

18. It appears that the inspector sought production of documents from the year 2008 onwards by reason of the fact that certain documents that had been produced in the course of an investigation indicated that there may have been an accident with some similarities to the 2012 accident in the 2008 year.

19. In the Plaintiff’s Outline of Submissions it was stated at [33]:

“Mr Smith repeatedly gave evidence that he was seeking information about the 2008 incident for the purpose of identifying any recommendations that were made as a result of that incident, whether and how those recommendations had been implemented, the audit process in place to ensure the proper implementation of those recommendations and the persons with effective control concerning the implementation of those recommendations.”

20. On 26 November 2013 the plaintiff failed to produce the disputed documents in un‑redacted form. On that date the plaintiff’s solicitor forwarded an email to Mr Smith advising that the material that had been redacted related to commercially sensitive and confidential information. On 27 November 2013 an officer of the Department by email drew the plaintiff’s solicitor attention to the protection afforded by s 271 of the WHS Act. They were also asked to identify the basis for the legal professional privilege claim. Time for compliance was extended until 28 November 2013.

21. By letter dated 28 November 2013 the plaintiff wrote to the Department advising that it considered that it had produced all the documents to which the Department was “entitled as a consequence of the proper exercise of the power conferred on you by s 155…”: Respondent’s Outline of Submissions at [13].

22. The plaintiff’s solicitor also informed the Department that legal professional privilege was claimed over some of the documents and that other parts of documents were commercially sensitive and that the latter had been redacted for that reason. It was asserted that the redacted information did not pertain to governance of safety.

23. On 19 December 2013 Mr Smith issued the applicant with a further s 155 Notice, No 131219, (the “December Notice”) which again required production of the disputed documents. Again, the plaintiff declined to produce the documents relying in subsequent correspondence upon the relevance of the documents, the commercially sensitive nature of some material contained within the documents and the scope of the power under s 155.

20. By Court Attendance Notices filed on 10 January 2014, the plaintiff was charged with two counts of failing to comply with a notice issued under s 155 WHS Act in relation to the November and December Notices, in particular, by its failure to produce the disputed documents. The plaintiff entered not guilty pleas. A hearing of the charges took place before Magistrate Goodwin at the Downing Centre Local Court on 16-17 June 2014. As noted above, on 13 August 2014 the plaintiff company was found guilty of the offences charged. On 13 October 2014 it was ordered to pay a fine of $20 000 in respect of each offence. Magistrate Goodwin made a costs order against the applicant in the sum of $74 281.00.

The Magistrate’s Decision

25. In the course of the Magistrate’s decision a number of factual findings were made by her Honour. These were summarised in the Respondent’s Outline of Submissions at [20] as follows:

(a)   The Director-General of the Department of Trade, Investment Regional Infrastructure and Services is the regulator in relation to matters or the exercise of a power or function under the WHS Act concerning a mining workplace and had delegated functions pursuant to s 154 of the WHS Act to the Director, Mine Safety performance;

(b)   The respondent is a duly appointed director of Mine Safety Performance and is appointed as an investigator pursuant to s 127(1)(d) of the MHS Act [Mine Health and Safety Act 2004] and was entitled to commence prosecutions under the WHS Act;

(c)   Inspector Smith was appointed as an investigator under s 127 of the MHS Act and is a mine health and safety inspector for the purposes of the WHS Act pursuant to s 156A of the WHS Act;

(d)   Inspector Smith commenced an investigation of the 2012 Incident on behalf of the regulator and formed a belief that the applicant was capable of exercising control and influence of the Mine;

(e)   Inspector Smith considered that there were reasonable grounds to believe that the minutes of the meeting of the Board of Directors of the applicant from 24 May 2008 until December 2012 might provide material relevant to a possible contravention of the WHS Act or assist in the monitoring or enforcement of compliance with the WHS Act. In particular:

(i)   Inspector Smith believed the documents sought were relevant to the 2012 Incident because the documents related to matters such as decision making and control over work at the Mine and he wanted to determine what control, if any, the Board of Directors of the applicant exercised over the Mine in 2008 and what was done, if anything as a result of the 2008 Incident;

(ii)   Inspector Smith wished to investigate what, if any, relationship there was between the 2008 Incident and the 2012 Incident and what the applicant had done following the 2008 Incident that might be relevant to the 2012 Incident; and

(iii) Inspector Smith believed the documents could reveal whether any recommendation made following the 2008 Incident was the subject of a direction or action by the applicant prior to the 2012 Incident, which he believed was relevant to his investigation as to whether the applicant had complied with the duties in ss 19 and 27 of the WHS Act.

(f) Inspector Smith’s process of reasoning (as summarised immediately above) is capable of satisfying the reasonable grounds required in s 155 of the WHS Act.

(g) Inspector Smith issued to the applicant a s 155 WHS Act notice seeking production of documents he believed would assist in the investigation (the May Notice);

(h)   Inspector Smith received heavily redacted copies of the documents in response to the May Notice;

(i)   Inspector Smith had reasonable grounds to believe that the applicant was capable of providing the Disputed Documents and that the provision of those documents might relate to a possible contravention of the WHS Act or might assist the Regulator to monitor or enforce compliance with the WHS Act.

(j)   Inspector Smith issued the November Notice and the December Notice to obtain the Disputed Documents;

(k)   The November Notice and the December Notice were properly issued;

(l)   The applicant received the November Notice and the December Notice;

(m)   There was a large volume of correspondence between Inspector Smith and the legal representatives of the applicant concerning the production of the Disputed Documents. In particular:

(i)   The legal representatives for the applicant asserted that part of the redacted material contained information that was commercially sensitive and material over which it claimed legal professional privilege;

(ii)   Inspector Smith pointed out that the WHS Act contained provisions to safeguard the material from release (s 271);

(n)   No unredacted material was provided (in response to either the November 2013 Notice or the December 2013 Notice);

(o)   No unredacted material was provided to the Court such that there was no evidence before the Court that allowed an assessment of the claims raised by the applicant’s legal representatives in correspondence that the redacted material contains material that is commercially sensitive or is the subject of legal professional privilege; and

(p)   The applicant did not provide a reasonable excuse for not supplying the Dispute Documents.”

26. There was no dispute, nor could there have been any, but that the plaintiff company is subject to obligations imposed under the WHS Act in respect of the mining operations of PBHL concerning its mine at Broken Hill in New South Wales. Nor is there any dispute that PBHL is similarly subject to the provisions of that Act.

Mine Accidents at the Broken Hill Mine

27. The accident involving Mr Mark Pollard was the subject of evidence of Mr Smith before the Magistrate on 16 June 2014. The transcript of his evidence was provided to this Court and is contained in Court Book, Vol 1, at pp 105‑184.

28. A copy of a statement of Mr Smith dated 14 June 2014 became Exhibit 1 in the proceedings, and is contained in Court Book, Vol 2, at pp 311-671.

29. Mr Smith stated that on 8 June 2012 the Regulator received a “Mine Notification of Incident Form” in relation to the Southern Operations Mine operated by PBHL. The form stated that Mr Pollard, a worker at the Mine, had fallen 14m down a shaft. As a result Mr Pollard suffered serious injuries including the traumatic amputation of his right leg below the hip, three spinal fractures, seven broken ribs, a lacerated liver, cuts and abrasions: Statement of Antony Smith at [6].

30. On or about 8 June 2012 the Regulator commenced an investigation into the incident. Mr Smith was a member of a team that conducted the investigation and acted in the investigation for the Regulator.

31. The Registered Office of PBHL at the time of the 2012 accident was an address in Perth, Western Australia. One share issued by PBHL was held by the holding company, Perilya Limited: Statement of Antony Smith at [10].

32. Mr Smith stated that he received a letter from the solicitor representing Perilya Limited and PBHL. The letter was dated 5 December 2012 and it stated that it was responding to a notice that had been issued. Various documents were provided including a document entitled “Perilya Limited HSE Management System Overview” in response to the notice. Mr Smith reviewed the information and documents produced and said that he noted that the overview (referred to as the HSE Overview):

“(a)   bears the title ‘Perilya Limited HSE Management System’; and

(b)   that the Perilya Board has a defined role in the management of safety at the Mine.” (Statement of Antony Smith at [12])

33. Mr Smith also noted that the document “Quarterly Activities Report for the three months ended 30 June 2012” which bore the logo of “Perilya”, at page 14 stated:

“ ‘Perilya…owns and operates” the iconic Broken Hill zinc, lead, silver mine in NSW Australia and… the Cerro de Maimon copper, gold and silver mine in the Dominican Republic.” (Statement of Antony Smith at [14])

34. Mr Smith obtained a document produced on behalf of the plaintiff entitled “Board Charter”. The Charter stated, amongst other things, that the Board had responsibilities for workplace safety: Statement of Antony Smith at [15].

35. Mr Smith stated in his written statement at [20] that based upon the contents of the particular documents to which he referred he had formed a view that:

“(a)   Perilya Limited exercised, or was capable of exercising, control and influence over PBHL and the Mine at all material times including on 8 June 2012 …”; and

“(b) The minutes of meetings of the Board of Directors of Perilya Limited, and other documents provided to them would assist the Regulator to monitor or enforce compliance with the WHS Act.”

36. Mr Smith’s statement then addressed the issue of the May Notice (Statement of Antony Smith at [21]-[40]) and the December Notice (Statement of Antony Smith at [41]-[47]).

37. Mr Smith was cross-examined during the hearing on 16 June 2014. In the course of the cross-examination, he was questioned about information that had been sought in one of the Notices concerning the 2008 incident: T 30-35, 16 June 2014. Mr Smith stated that there was an issue as to the identification of persons who were in control and involved in decision-making for PCPU subsequent to the accident that occurred on 24 May 2008:

“… which would have likely have had an effect on the safety operations of the Mine as on 8 June 2012, which was the date of the Pollard incident. So it was relevant to that time period.” (T 31:10-20)

38. Mr Smith’s evidence indicated that the accident in 2008 at the Mine involved a large counterweight falling down a mine shaft. He said that recommendations given following that particular incident “… may require significant changes in safety management systems and – and financial resources to undertake to ensure that similar incidents don’t occur again …”: T 30:15-25.

39. Mr Smith, also in cross-examination, stated that the accident on 24 May 2008 was a “significant incident”. He added:

“… my point of view was that this was a serious event and that significant review, recommendations, auditing, would have taken place after that date and prior to the Pollard incident.” (T 31:10-20)

40. Importantly, Mr Smith, for the Regulator was found by the learned Magistrate to have formed the necessary belief under s 155 of the WHS Act.

The Notices Issued by the Regulator

41. Copies of the Notices issued by Mr Smith under s 155 were included in the Court Book, Vol 2 at p 636 and 662.

42. They were in what appears to be a standard format to which particulars of documents to be produced were specified. Each Notice was addressed to the plaintiff company. The “Grounds” for issue stated in the Notices were:

“Serious injury to Mark Pollard at Perilya Broken Hill on 8 June 2012.”

43. The Notices stated:

“I am a delegate of the Director General of the Department of Trade and Investment Regional Infrastructure and Services (the Regulator) for the purposes of section 155 of the WHS Act and I have reasonable grounds to believe that you are capable of

T Giving information T Producing documents � Giving evidence

44. It is not disputed that the regulator had “reasonable grounds” for his belief in the sense required by s 155. Additionally, on the issue of validity no issue as to the form (in terms of particularity) of the Notices was raised, other than an issue in relation to the contents of “board minutes” discussed at [108] ff.

45. The Notices each stated under the word “Description”, the following:

“In relation to:

T A possible contravention of the WHS Act

T Assist the Regulator to monitor or enforce compliance with the WHS Act”

46. Each Notice contained a Schedule in which the documents required to be produced were identified.

47. The Notices each specified a requirement that the plaintiff produce:

“… un-redacted copies of the documents supplied in response to the WHSA s155 notice dated 22 May 2013 schedule list.”

48. The Schedule to each Notice identified by reference to “Item D” and “Item H”, the disputed documents detailed above at [13]-[15]:

49. The November Notice also specified documents for production being un‑redacted copies of documents listed in paragraphs 2 to 5 of the Schedule to the Notice.

Appeal Against Conviction

Plaintiff’s Submissions

50. The plaintiff seeks to appeal the convictions as of right and also seeks leave to appeal the sentences in the event that it is unsuccessful in having the appeals against conviction dismissed. The four grounds relied upon in relation to the plaintiff’s conviction and sentence are in the following terms:

Ground 1: The magistrate erred at law, in not finding that the notices issued under s 155 of the Work Health and Safety Act 2011, in so far as they purported to compel the production of the Disputed Documents were beyond power, and therefore, invalid.

Ground 2:   The magistrate erred both in fact and at law in that she failed to apply (properly or at all) the principle of totality in the sentences which she imposed upon the applicant.

Ground 3:   The sentences imposed upon the applicant were manifestly excessive.

Ground 4:   The order for costs made by the magistrate was not just and reasonable in all of the circumstances.” (Court Book at p 74)

51. In his opening oral submissions, Mr Hodgkinson SC who appeared with Ms J Paingakulam of counsel for the plaintiff, identified the question of law to be answered in the appeal in the following terms:

“… the fundamental matter raised by these proceedings and by the proceedings below was a question of law, being the scope of the power and we have put it in our reply in this way: is the power to compel the production of documentation conferred on a regulator by s 155 of the Workplace and Safety Act, limited to documents which relate to health and safety matters that arise in or are related to New South Wales”: (T 1-2, 15 April 2015)

52. Mr Hodgkinson properly conceded that it had not been put to Mr Smith, nor contended, that the Regulator had no reasonable grounds for the issue of the disputed Notices.

53. Mr Hodgkinson submitted that there were “limitations” upon the power under s 155. The first asserted limitation was the fact that the power is contained in a New South Wales Act. The power is conferred upon a New South Wales regulator who has powers in respect of prosecutions and enforcement under the Act but that these were confined to New South Wales. Secondly, the power under s 155 does not extend to a notice that compels the production of documents that do not relate to health and safety in relation to health and safety matters that arise in or are related to New South Wales: T 3:40-45. This was said to be a jurisdictional limitation or a limitation on the regulator’s power to require the production of the disputed documents. Mr Hodgkinson stated that this did not mean that one part of the notice which exceeded the power invalidated other parts of the notice that did not: T 3:45-50.

54. The plaintiff, in essence, contended that the Department did not have authority under s 155 WHS Act to require or request production of the disputed documents. The power contained in s 155 WHS Act, it was argued, is limited both by its own terms and by the Act itself. It was contended that (a) the disputed documents were outside those limitations and (b) that Magistrate Goodwin had failed to give due consideration to them.

55. Her Honour, it was contended, erred in law by not finding the Notices requesting the disputed documents to be invalid.

56. In the plaintiff’s Outline of Submissions it was submitted that a key limitation on the provision was created by s 155(1) of the Act. The plaintiff stated that:

“[sub-section (1)]…identifies the circumstances in which the section itself applies. The first criterion is that the Regulator must have “reasonable grounds to believe”. The subject matter of that belief is that the person the subject of consideration “is capable of giving information, providing documents or giving evidence”. However, those three categories, information, documents or evidence, are only in relation to certain identified circumstances being, “a possible contravention of this Act” or information, documents or evidence “that will assist the Regulator to monitor or enforce compliance with this Act.” (Plaintiff’s Outline of Submissions at [20])

57. The plaintiff referred and relied in its Outline of Submissions upon two decisions which it contended provide assistance in determining the scope of the power contained in s 155 WHS Act. They were, it was argued, instructive notwithstanding that they concerned different provisions in different legislation. The first case was Federal Commission of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 which dealt with the application of s 264(1) of the Income Tax Assessment Act 1936 (Cth) (referred to in submissions as the “Smorgon case”). The second was Deveson v Australian Broadcasting Tribunal (1991) 32 FCR 124, which dealt with a power to compel documents under s 21 Broadcasting Act 1942 (Cth). The plaintiff’s argument was that the power in s 155 is to be read in light of the type of limitations or restrictions established in those decisions.

58. As noted at [9] above, the disputed documents appear to have been sought on the basis that there had been an accident in 2008 which was thought to have certain similarities to the one being investigated in 2012. The Notices sought documents relevant to whether any recommendations had been made following the 2008 incident, and, whether there had been any auditing process concerning implementation of any such recommendations.

59. The plaintiff noted in its Outline of Submissions that the WHS Act only came into operation on 1 January 2012. It was argued for the plaintiff that because the due diligence requirements contained in s 27(1) of the Act are different to the requirements contained in the previous legislation (Occupational Health and Safety Act 2000 (NSW)) evidence of recommendations, auditing requirements and whether recommendations had been appropriately implemented could have no bearing on the issue of whether there had been compliance with the current operative provisions in the WHS Act. In the Plaintiff’s Outline of Submissions it was stated:

“35. The obligation of an officer of a PCBU to exercise due diligence as set out in s 27 WHSA came into existence on 1 January 2012. Section 26 of the Occupational Health and Safety Act 2000 (the OH&S Act), the predecessor to the WHSA, created a similar obligation from 7 June 2011 only. Prior to that date, a director or manager of a corporation was deemed to have contravened the OH&S Act, unless, among other things, he or she used all due diligence to prevent the contravention by the corporation.

36. The duties in s 27 of the WHSA and s 26 of the OH&S Act prior to 7 June 2011 are not analogous. Nor did the current legislative guidance as to what amounts to due diligence appear in the legislation prior to 7 June 2011. Accordingly, evidence of what officers of Perilya did prior to 7 June 2011 cannot inform the Department “in relation to a possible contravention of the Act” or “assist the Regulator to monitor or enforce compliance with this Act.” The Department cannot be assisted in its endeavours by evidence of what occurred before the existence of the obligations which currently apply to officer of Perilya.”

60. In oral submissions, Mr Hodgkinson in identifying the “question of law” in the proceedings, drew attention to the import of the distinction drawn in s 155 between “a possible contravention” of the WHS Act, and documents etc that will assist the regulator to “monitor or enforce compliance” with the Act: T 7-8, 15 April 2014. These expressions, it was contended were words of limitation and that “documents” etc must relate to health and safety matters that arise in or in relation to New South Wales: T 8-9. This limitation on the scope of s 155 was said to be central to whether this appeal involved a “question of law alone”: T 9:5-15.

61. It was acknowledged in the course of the plaintiff’s submissions that this Court may need to consider the terms of the Notices issued under s 155 for the purpose of determining their validity. If so, it was accepted that this would involve applying the section to the facts of the case, in which case leave to argue a mixed question of law and fact would be required under s 53(1) of the CAR Act governing appeals from the Local Court: T 9:15-25; T 10:1-5.

60. The submissions for the plaintiff placed reliance upon the Smorgon case to support its contention that s 155 must be read subject to limitations, including the need for the regulator to frame a notice issued under that section in terms that identify a particular class or category of document(s) even if that class or category be defined broadly such as documents relating to “health and safety documents in or related to New South Wales”: T 16:35-41. In this case, so the argument ran, what was required was that the Notices, in relation to board minutes, should be drawn as limited to “board minutes dealing with health and safety matters in or related to New South Wales”: T 16:42-50. The Smorgon decision, it was submitted, provides a practical set of guidelines as to the scope of the relevant limitations and the way in which they are established: T 17:26-31.

61. Notwithstanding that it was common ground that the plaintiff was engaged in the operations of and also had responsibilities for the PBHL Mine, extraterritorial issues were sought to be employed in support of the plaintiff’s invalidity argument. Reference in this respect was made to the fact that the plaintiff had operations in the Dominican Republic, Canada and in other Australian States: Plaintiff’s Outline of Submissions at [28].

62. Information in relation to such operations outside New South Wales and other information concerning activities including mergers and acquisitions, equity raising, debt financing, and the rolling over of existing working capital facilities with banks was said to be information of a kind that could not be said to be “in relation to a possible contravention” or of assistance “to monitor enforcement compliance” as required by s 155(1): Plaintiff’s Outline of Submissions at [28]-[29]. It was further submitted:

“Additionally, the powers conferred by s 155 must be read, as they appear in a NSW Act, as being confined to New South Wales …” (Plaintiff’s Outline of Submissions at [29])

65. In support of the plaintiff’s submission in this regard it was stated that there were no words of limitation contained in the request for the “disputed documents” that would alert the reader to the legitimate requirements in s 155, nor to the “territorial limitations” conferred upon powers which themselves are conferred by a New South Wales Act: Plaintiff’s Outline of Submissions at [31].

66. Whilst the Plaintiff’s Outline of Submissions acknowledged that a person conducting a business or undertaking in terms of s 19 of the WHS Act was subject to obligations under the WHS Act, no reference or acknowledgment was given to the fact that the plaintiff company equally was subject to the New South Wales Act in respect of the Broken Hill mine operations in the respects to which I have already referred.

Respondent’s Submissions

67. Mr Agius SC, who appeared with Mr Robert Ranken of counsel on behalf of the defendant prosecutor, submitted that the grounds of appeal relied upon by the plaintiff in the Amended Summonses does not involve a question of law alone. The determination of whether Magistrate Goodwin erred, it was submitted, called for a consideration of the terms of the November and December Notices and that this accordingly involved factual matters not a question or questions of law. In those circumstances, the respondent submitted that leave is required to appeal against the convictions, the question being one of mixed law and fact rather than of law alone as required by s 52(1) of the CAR Act.

68. On behalf of the respondent it was contended in written submissions that leave should not be granted, firstly, because the plaintiff had not sought leave to appeal against conviction, and, secondly, due to the fact that it had available to it an avenue of appeal to the District Court as of right which it had failed to pursue. The regulator submitted that “appeals from the Local Court to the Supreme Court should ordinarily be reserved to appeals on grounds involving questions of law alone” and that the legislative intent apparent in the CAR Act to confine the ability to appeal to the Supreme Court in that manner “is an important matter bearing upon the Court’s exercise of the discretion to grant leave under s 53” of that Act: Respondent’s Outline of Submissions at [40]. The respondent accordingly submitted that leave to appeal should be refused. The respondent also contended that the ground of appeal was without inherent merit.

69. In relation to the substantive issue raised by the plaintiff, it was contended for the respondent that there were only two preconditions to be met for the issue of a notice under s 155 and that both, it was submitted, were found to have been satisfied by Her Honour, Magistrate Goodwin. In the Respondent’s Outline of Submissions it was stated:

“43. The matters that are required to exist in order to enliven the power to issue a notice under s 155 requiring the production of documents are as follows:

1)   The person issuing the notice must be the regulator (or a delegate of the regulator);

2)   The regulator must have reasonable grounds to believe that the person to whom the notice is to be issued is capable of providing documents in relation to a possible contravention of the WHS Act or that will assist the regulator to monitor or enforce compliance with the WHS Act.”

70. It was further submitted that the plaintiff’s reliance on the Smorgon case was misplaced. In the Outline of Submissions for the respondent it was stated at [46]:

“It may be accepted that the power conferred on the Regulator allowing it to compel the production of documents is circumscribed by reference to limitations that are expressed in the section conferring the power. In the Smorgon case, the power to compel the production of documents was limited to documents that in fact related to a person’s income or assessment. By contrast, the power in s 155 of the WHS Act is limited to documents that the Regulator has reasonable grounds to believe relate to a possible contravention or will assist the Regulator to monitor or enforce compliance with the WHS Act. The scope of the power conferred by s 155 is considerably greater than the power at issue in the Smorgon case.”

71. The respondent made no submission as to the relevance of the Deveson decision. I will refer to the question decided in that case below.

72. The respondent also observed in its Outline of Submissions that:

“50. …the [plaintiff’s] argument erroneously conflates the prospect of a recipient having a reasonable excuse for not complying with a s 155 notice with the question of validity. The validity of a s 155 notice depends upon a construction of the notice itself and a consideration as to whether the person issuing the notice had the requisite belief on reasonable grounds. It does not depend upon a subjective assessment by the recipient.

51. The respondent [the Regulator] further submits that considerations of commercial sensitivity would not amount to a reasonable excuse to not comply with a s 155 notice. The safeguard provided by s 271 of the WHS Act recognizes that the regulator may come into the possession of confidential or sensitive information in the course of an investigation involving, inter alia, the use of its powers under s 155.

52. It may be accepted that a bona fide claim for legal professional privilege will amount to a reasonable excuse for the purposes of s 155(5) of the WHS Act. That is supported by s 269 of the WHS Act, which preserves the application of legal professional privilege to any document or information to which the privilege applies.

53. However, s 155(6) provides that the accused bears an evidential burden to show a reasonable excuse. In the present matter, other than bare assertions in correspondence…the applicant did not present any evidence to discharge its evidentiary onus concerning its claims of legal professional privilege. The learned magistrate concluded that the applicant had not discharged its evidentiary onus.

54.   In any event, the applicant’s contentions also fail to grasp the point that, where the alleged contraventions concern a failure to discharge a health and safety duty, the Regulator is required to obtain evidence of both positive acts and omissions. Accordingly, the very absence in the Disputed Documents of information relating to health and safety is itself a matter that relates to a possible contravention of the WHS Act.”

73. In relation to the plaintiff’s submission that any documents relating to their acts prior to 7 June 2011 could not have any bearing on the matter under investigation because of differences between the WHS Act and its predecessor, the respondent submitted that the asserted distinction between the two acts has no relevance to the validity of a notice issued under s 155. In this respect, it was submitted that the relevant issue is “whether Inspector Smith had reasonable grounds to believe that the applicant was capable of providing documents in relation to a possible contravention of the WHS Act”.

74. The submission on this aspect continued:

“58. The Disputed Documents are clearly relevant to an investigation into the foreseeability of the risk and whether officers of the applicant or its officers had taken any action or introduced any measures in compliance with their obligations of due diligence. There is no warrant for reading down s 155 of the WHS Act as the applicant seeks to do. It is no answer to a notice to produce documents caught by s 155 for a person or entity to say that it has looked at the material caught by the notice and it has determined that there is nothing in the documents that provides evidence about a possible contravention of the WHS Act. The logical conclusion of such a submission is that an entity under investigation or the Board of which is under investigation can usurp the function of investigator and lawfully decline to produce material because it or its Board of Directors is of the view that the documents are irrelevant to an investigation.”

Plaintiff’s Reply Submissions

75. In their Outline of Submissions in Reply filed 2 April 2015, the plaintiff submitted that the Department had been aware of the incident at Perilya Southern Cross Shaft from 24 May 2008 or thereabouts. Accordingly, the incident had come to the Department’s attention prior to the investigations into the 2012 incident. It was submitted that it followed that any action that could have been taken in relation to the 2008 incident, including monitoring compliance or enforcement with the WHS Act had become statute barred by operation of ss 107 and 107A of the Occupational Health and Safety Act 2000 and s 232 of the WHS Act. It was submitted that no documents could have been relevant in relation to the earlier incident for the proper exercise of the inspector’s power that came into existence before the commencement of 2011.

76. It is to be noted at this point that no ground as to limitations was raised in the grounds of appeal. However, even if a limitation provision existed and operated to preclude a prosecution, that could not, in my opinion, be a matter that concludes any issue of “relevance” in terms of the functions of the regulator nor the exercise of the s 155 power.

77. The reply submissions for the plaintiff addressed the issue of whether a “question of law” was raised. It was again asserted that the power under s 155 could not compel the production of every possible class of document. Further, it was submitted that the WHS Act did not operate in respect of matters that do not have a relevant connection to New South Wales.

78. The question of law to be answered on appeal was again reformulated in the reply submissions. It was submitted that there were two steps involved. The first involved the proper construction of s 155. The second was to apply that construction to the particular Notices in order to determine whether they were valid exercises of the power under s 155: Plaintiff’s Outline of Submissions in Reply at [3].

79. In the alternative it was stated for the plaintiff that it applied for leave, if necessary, to raise a mixed question of law and fact pursuant to s 53 of the CAR Act. In this respect a number of matters said to be relevant to the grant of leave are set out in para [9] of the reply submissions.

80. It was further submitted for the plaintiff that other avenues of appeal to the District Court available under the CAR Act cannot operate to limit the provisions of s 53: Plaintiff’s Outline of Submissions in Reply at [10].

81. Further submissions were made in support of the plaintiff’s primary arguments as to the limitation that was said to exist on the power under s 155: Plaintiff’s Outline of Submissions in Reply at [12]-[15].

CONSIDERATION ON CONVICTION APPEAL

(1) Question of Law

82. As noted above, Part 5 of the CAR Act provides for appeals against conviction from the Local Court to the Supreme Court on a restricted or limited basis – namely, only on a ground that involves a question of law alone: s 52(1) of the CAR Act. A person seeking to appeal a conviction or sentence on a ground that involves a question of fact or a question of mixed fact or law may only do so with the leave of the court: s 53(1) CAR Act.

83. There was no dispute as to the relevant principles to be applied to an appeal against conviction in terms of ss 52(1) and 53(1) of the Act. They were summarised in the Respondent’s Written Submissions at [33] as follows:

“(a)   The formulation ‘a question of law alone’ is more restrictive than ‘a question of law’: R v JS [[2007] NSWCCA 272; 175 A Crim R 108] at 125 [74];

(b)   There is ‘a question of law alone’ if it can be stated and considered separately from the facts with which it may be connected in a given case: Williams [v The Queen (1986) 161 CLR 278] at 287;

(c)   Whether a provision that employs the formulation ‘that involves a question of law alone’ is more expansive than one that employs the formulation ‘on a question of law alone’ will depend on its statutory context: R v PL [(2009) 199 a Crim R 199] at 205 [22];

(d)   Where the statutory context expressly distinguishes between a ‘ground that involves a question of law alone’ and a ‘ground that involves a question of mixed law and fact’, the formulation ‘that involves a question of law’ has the same effect as that which the High Court reached in Williams that is, that no appeal is permitted on a mixed question of law and fact without leave: R v PL at 205 [21]-[23];

(e)   The requirement of leave to appeal should not be treated as a mere formality and there will be circumstances where leave will be refused: R v Rasic [Rasic v The Queen [2009] NSWCCA 202] at [12].” (Court Book at 78)

84. As noted above, the respondent submitted that the sole ground of appeal against conviction did not raise a question of law alone. It was contended in this respect that the November and December Notices were a valid exercise of power under s 155 of the WHS Act and that this required a consideration of the factual matters of the case, in particular, the terms of the Notices. That in turn, it was submitted, involves a question of mixed fact and law. Accordingly, the plaintiff required leave to appeal: Respondent’s Outline of Submissions at [35].

85. The respondent submitted that leave to appeal should not be granted. This was on three bases, including so it was contended, a lack of merit: Respondent’s Written Submission’s at [37]-[41].

86. I accept that Ground 1 in the Amended Summonses requires the issue of power under s 155 to be applied to the Notices, and that the ultimate issue requires a determination as to whether the exercise of power by the regulator lawfully applied to the particular terms of the Notices. That accordingly involves questions of fact and law. However, I consider in all the circumstances, including in particular the need for clarification of the extent of power under s 155 that leave should be granted to appeal in respect of Ground 1.

(2) The Powers of the Regulator to Obtain Information

87. Before dealing with the submissions and contentions made on behalf of the plaintiff as to the claimed invalidity of the Notices, it is necessary that attention be given to the width and the nature of the functions of the regulator under the WHS Act, and to the statutory provisions that provide the regulator with power to obtain information under s 155.

88. The functions of the Regulator under the WHS Act are wide-ranging. They are clearly important functions. The specified function of the regulator under s 152(b), namely “to monitor and enforce compliance with this Act”, is a function that is broad in scope. The statutory function of monitoring carries with it the ordinary meaning of the word “monitor”, namely, to “observe, supervise, keep under review, measure or test at intervals, especially for the purpose of regulation or control”: Oxford English Dictionary.

89. The power under s 155(1) of the Regulator to obtain “information” includes information, “… that will assist the regulator to monitor or enforce compliance with this Act”: s 155(1).

90. As noted above, each of the Notices in contention in the present proceedings stated that the regulator had “reasonable grounds to believe” that the plaintiff was capable of: (a) giving information and (b) producing documents in relation to two identified matters. Those matters were: (i) a possible contravention of the Act and additionally (ii) compliance, that is to “assist the Regulator to monitor or enforce compliance with the WHS Act”.

91. The width of the power under the Act to obtain documents to monitor or enforce compliance with the Act is determined, at least in part, due to the fact that the notion of “compliance” may cover or apply to a number of statutory obligations imposed upon specified persons.

92. As the submissions for the respondent noted, the matters that were said to enliven the power to issue a notice under s 155 requiring the production of documents were:

1. That the person issuing the notice is the Regulator (or the delegate of the Regulator).

2. That the Regulator must have reasonable grounds to believe that the person to whom the notice is to be addressed is capable of providing documents in relation to a possible contravention of the WHS Act or that will assist the regulator to monitor or enforce compliance with the WHS Act: Respondent’s Outline of Submissions at [43].

93. A number of provisions in the WHS Act reflect the rationale that underpins the conferral of what are broad information‑gathering coercive powers upon the Regulator. In that respect:

1. The legislative objectives of the WHS Act are significant in terms of matters of health and safety. Section 3(1) provides that the main object of that Act is, inter alia, “to secure the health and safety of workers and workplaces …” by the measures set out in (a) to (b) of that provision. Section 3(1)(a) states the objective of:

“(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, …”

2. A related legislative objective is directed to enhancing the protection of workers and others and to that end fostering risk minimisation. Section 3(2) provides:

“In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

94. There are two limbs to the provisions conferring power on the regulator under s 155(1). Each requires “reasonable grounds” for the regulator’s particular belief or state of mind. The subject-matter of the first limb is directed to the capability of a person to give information, provide documents or give evidence in relation to a possible contravention of the Act. The second limb relates not only to contraventions of the Act, but also to a broader issue, namely, to “assist” in monitoring or enforcing compliance with the Act. Information, including documents falling within the scope of the second limb are directly relevant to the performance of the regulator’s function under s 152(b). Contraventions of the Act may relate to past events. “Compliance”, though embracing past conduct or events, is also forward-looking in that it is directed at the elimination or minimisation of risks arising from work, plant, specified substances etc: s 3(1)(a) of the WHS Act.

94. Central to the operation of the provisions of s 155(1) is the stated belief of the Regulator on reasonable grounds. That is an important element in the exercise of the powers conferred by the section.

95. In summary, the provisions of s 155 are enlivened where “… the regulator has reasonable grounds to believe” the following matters:

1. That the “person is capable” of, inter alia, providing information including documents etc;

2. The “information”, “documents” and/or “evidence” concerns or relates to “a possible contravention of this Act”; and/or

3. The giving of information, provision of documents or giving of evidence will assist the regulator to monitor and enforce compliance with the Act. The use of the word “assist” carries the meaning of helping or supporting or promoting the performance of the regulator’s function to monitor or enforce compliance etc.

97. The Regulator is subject to a duty to perform the statutory functions specified in the WHS Act. As earlier stated these include the function of monitoring and enforcing compliance with the Act. In order for the Regulator to properly perform and discharge his responsibilities in respect of those functions in relation to the 2012 accident at the Broken Hill Mine:

• Information relevant to mine safety at the Broken Hill Mine held by the holding company of the group (the plaintiff) was plainly within the coercive power conferred in broad terms upon the Regulator under s 155 to acquire “information”.

• The fact that particular documents, such as minutes of board meetings of the plaintiff company, may contain information relevant to matters other than mine safety does not, in my opinion, result in the invalidity of the Notices issued by the Regulator.

• In relation to information obtained in the exercise of a power or function under the WHS Act the legislative scheme includes, as earlier noted, statutory protection to preserve the confidentiality of such information in s 271. In this respect, the contents of documents obtained must not be disclosed to anyone: s 271(2). Penalties are prescribed in respect of contravention of the confidentiality obligations by both an individual and by a body corporate: s 271(2).

• The Act ensures the preservation of legal professional privilege in s 269. The section prescribes: “nothing in this Act requires a person to produce a document that would disclose information, or otherwise provide information, that is the subject of legal professional privilege”.

98. Insofar as certain of the disputed documents were said to be related to confidential matters or were subject to a claim for legal professional privilege, apart from an assertion of confidentiality and privilege in correspondence, the plaintiff made no attempt to support the claim by way of affidavit evidence either before the prosecution was instituted or by evidence in the hearing before the Magistrate.

(3) The Limitations on the Regulator’s Power under Section 155

99. As detailed above, the plaintiff made submissions as to asserted territorial limitations on the power of the Regulator. For reasons that follow, I do not, with respect, consider that territorial limitations operated so as to limit the Notices issued by Mr Smith on behalf of the Department under s 155. Accordingly, there is no foundation for the contention that the Magistrate failed or erred in not giving consideration to the scope of the alleged limitations referred to in the submissions of the plaintiff set out in its Outline of Submissions in these proceedings filed 23 February 2015.

100. The fact that the plaintiff company is registered in Western Australia and the company has its office in Perth, are not decisive considerations. The company, as noted above, has other business operations in other States and in other countries, which, at least in part, are within the control of the plaintiff.

101. The plaintiff company, on the evidence before the Magistrate, some of which has been referred to above, was also directly “involved” in the Broken Hill Mine at a number of levels. In particular:

• The plaintiff and its Board of Directors had ultimate control over the operations of the Broken Hill Mine.

• The plaintiff had been directly involved in and had responsibilities in respect of occupational health and safety matters affecting and/or arising out of the operation of the Broken Hill Mine.

• The plaintiff, by reason of its operations in New South Wales, its control of the same and its responsibilities for the proper operation of the Mine was subject to the statutory obligations imposed upon it under the New South Wales Act (the WHS Act).

• Knowledge, in particular the corporate knowledge of the plaintiff in relation to mine safety issues in its operation in other States (and in other countries) relevant to the safe operation of the New South Wales mine was corporate knowledge that, at least potentially, is of significance and importance to the safe operation of the Broken Hill Mine.

102. The plaintiff’s submissions, as earlier noted, relied heavily upon the limitations found to have existed in the Smorgon case. Accordingly, it is necessary to examine the nature of the issues that fell for decision in that case

103. In Smorgon, the recipients of notices issued by the Deputy Commissioner of Taxation challenged their validity. In particular, a question arose as to the validity of four notices issued to ANZ (the Bank) to attend and produce books, documents and papers contained in four named safety deposit boxes in a branch of the Bank in Melbourne.

104. The relevant statutory provisions were contained in s 264(1) of the Income Tax Assessment Act 1936 (Cth) which was in the following terms:

“The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority-

(a)   to furnish him with such information as he may require; and

(b)   to attend and give evidence before him or before any officer authorised by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto."

105. The documents, books and papers sought in Smorgon related to two specific matters stipulated in s 264(1)(b), namely, “income or assessment” of a person: See the observations of Gibbs ACJ at p 523.

106. Whilst the approach of the High Court in the Smorgon case to the construction of the power under ss 263 and 264 of the income Tax Assessment Act 1936 (Cth) is instructive, its application to the present case necessarily is to be approached with a degree of caution. This is due to the fact that the terms of s 155(1) are fundamentally different from those considered in Smorgon. Section 155(1) of the WHS Act, unlike the notice provisions under ss 263 and 264, as discussed above, provides for a “reasonable ground to believe” provision. Additionally, the power under s 155 has a broader scope or reach than the powers under s 263 and 264. This arises, in part, because of the phrases, “a possible contravention of this Act” or that will “assist the regulator to monitor or enforce compliance with this Act”. Even within these formulations, the statutory terms in s 155, “possible” (contravention), “this Act” and “assist” each involve broad, not narrow, concepts.

107. Additionally, the objects of the WHS Act as stated in s 3, are material in the construction of s 155. An “objects clause” in a statute aids the interpretation and guides decision-makers as to what is to be taken into account when they exercise their powers or perform functions under the Act: see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6th ed, LexisNexis, Butterworths, Sydney 2006. The Regulator in his/her exercise of power conferred by s 155 is required to consider and give effect to the objects, in particular, those set out in s 3(1)(a), (e) and (g) of the Act with due regard, in particular, to be given to the object in s 3(1)(a) (“protecting workers and other persons against harm to their health, safety and welfare …”) and s 3(2) WHS Act.

108. As mentioned above, the plaintiff in the present case, in particular, argued that the Notices issued under s 155 were so broadly expressed that they were beyond power. In directing production of “board minutes”, without words of limitation as for example, by the inclusion of a class or category such as “health and safety documents in or related to New South Wales” meant, it was argued, that the Notices exceeded the “limitations” upon the terms of s 155 (T 16:40-41, 15 April 2015).

109. This line of argument, based as it was upon textual considerations in relation to s 155 and observations in Smorgon as to the Commissioner’s power in a taxation investigation, is one to be carefully assessed with due regard to the regulator’s remit, in particular his/her functions granted by s 152. In a case involving two serious accidents (as in the present case concerning mine shaft accidents in 2008 and 2012) investigations plainly may include inquiry into the discrete acts or omissions directly associated with each accident as well as any relevant broader “upstream” or systemic issues in a particular workplace and/or in the overall operations, including the management of risk by an operating entity. Board minutes of a company or companies involved in and/or responsible for such matters may, at least as a possibility, have relevance to such investigations as a record of management, either for what they record or fail to record. In the context of the present case, involving a particular history of accidents, issues such as the reporting to, supervision by, and response of, the Board of Directors of the company on health and safety issues and for the allocation of financial resources, may have relevance to issues of compliance with the WHS Act, a matter to which express reference is made in s 155(1).

110. There cannot, of course, be any exhaustive prescription, as to what matters may provide reasonable grounds of belief for the Regulator’s use of powers under s 155(1), each case turning on its own facts. There is, as earlier noted, no challenge to the Notices in this case in terms of the existence of “reasonable grounds” or the Regulator’s belief based on such grounds. Whilst in the course of oral submissions Mr Hodgkinson referred to the Regulator’s Notices as in effect saying “… give me all your documents …” (T 17:41-42), that was more in the nature of a rhetorical flourish. The Notices were drafted in a manner that left no room for uncertainty as to which documents were to be produced.

111. Whether, for example, a notice issued by the regulator that directs the production of documents concerning the salaries and travel allowances paid to directors of a company could be susceptible to challenge on the ground of invalidity, is not a matter that requires determination in this case.

112. The argument as developed in the submissions for the plaintiff was premised, in my respectful opinion, wrongly, upon the proposition that documents described in a s 155 notice as “board minutes” could not relate in any way to health and safety issues under the WHS Act. That premise, however, is advanced purely by way of assertion, especially in circumstances where there was no challenge made to the grounds for the Regulator’s belief. There was no evidence beyond assertions made in correspondence that established that board minutes of either the parent or operating company (or both) could have no possible bearing upon such issues.

113. As stated above, it may be envisaged that a consistent omission in a particular company’s records of any reference to consideration having been given by the directors or managers of a company on safety issues may conceivably have probative value. The fact that particular records such as board minutes may, as would be expected, deal with issues other than or additional to those concerned with health and safety (eg, a takeover bid) does not of itself place the minutes beyond the reach of s 155. They, in my opinion, are subject to the compellable power under the section, confidentiality, and a claim of privilege being available as protective measures under the Act as earlier discussed.

114. It is important to again emphasise that the provisions of s 155(1) of the WHS Act are considerably wider in scope than were the provisions of s 264(1) under consideration in the Smorgon case. Section 155(1) contains the expression “in relation to” a possible contravention of the Act. As noted above, s 155(1) refers to documents etc “… that will assist the regulator to monitor or enforce compliance with this Act.” The Notices issued by the Regulator in the present case, as also noted above, were expressly directed both to “a possible contravention of this Act” and to “assist the Regulator to monitor or enforce compliance with the WHS Act”, the Regulator importantly having stated that he held the requisite belief, on the basis of reasonable grounds, as to each of those two matters.

115. The power under s 155(1), unlike that under s 264(1) considered in Smorgon, is sufficiently broad to enable a regulator to obtain and examine documents called for in a notice where he/she holds the requisite belief on reasonable grounds for the purpose of determining whether in some relevant way, they do or may assist in determining whether a contravention of the WHS Act has occurred and/or for monitoring or enforcing compliance with the WHS Act. This, in my opinion, applies to the plaintiff company, and PBHL, or both.

116. It, of course, is to be borne in mind, as discussed above, that documents the subject of a belief of the regulator on reasonable grounds are not confined to documents that establish an affirmative fact, such as, for example, remedial action taken following an accident. Documents obtained under s 155 may be capable of also establishing a negative – that on a particular matter related to risk of injury or safety, a person failed to take any action or any adequate action to address such matters. The net may need to be cast in wide terms in order to obtain documents that may directly or indirectly bear upon issues of contravention or compliance with statutory obligations.

117. There is no basis, in my opinion, for the proposition advanced for the plaintiff that s 155 is to be read as subject to a qualification or limitation that the person to whom a s 155 notice is addressed has an unrestricted right to determine for himself or herself whether documents have a connection or a sufficient connection with the matter under investigation. Such “right” could plainly undermine the integrity of an investigation authorised by the WHS Act even to the point of negativing the express statutory powers conferred under it. The protections built into the Act under ss 269 and 271 are themselves strong indications against any possible implied limitation that would render the compulsive power under s 155 subject to a power or right, in this case in the plaintiff, to determine what documents must be produced.

118. The plaintiff additionally relied upon the decision of the Federal Court (Davies J) in Deveson v Australian Broadcasting Tribunal (1991) 32 FCR 124 to support its argument that the power under s 155 must be read subject to the limitations as argued in submissions.

119. I, with respect, do not consider that the decision in that case is of assistance in resolving the issue in the present proceedings. It is sufficient to state that the Federal Court was concerned with summonses that had been issued under s 21(2) of the Broadcasting Act 1942 (Cth), in relation to an application, brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Australian Broadcasting Tribunal in relation to that application was conducting an inquiry in relation to the transfer of certain broadcasting licences.

120. Davies J observed that the Tribunal, which exercised the statutory power, must act within the limits of that power. His Honour observed that it was a necessary implication in s 21, which uses the expression “for the purposes of proceedings before the Tribunal” that any document required to be produced be a document that may assist the Tribunal in its inquiry. The issue concerned the relevance of the documents sought under the summons, it being observed that the Tribunal had no power to compel production of documents that had no relevance whatever to its inquiry.

121. Accordingly, the circumstances in Deveson v Australian Broadcasting Tribunal were very different from the present proceedings. Firstly, that case involved a question of an inquiry being conducted by a tribunal involving interested parties. Secondly, the issue of “limitation” on the power in question turned on the question of apparent relevance of documents to the issues. Davies J observed that although s 21 did not contain express limitations on the power it was a provision that did not confer an unlimited power on the Tribunal to require the production of any documents whatsoever: Deveson at p 131. The inquiry being conducted by the Tribunal, it was noted, had a “limited ambit”. The determination was that the summonses had been drafted too broadly to include documents which had no bearing upon the issues that were the subject of the inquiry (at pp 131-2).

122. In contrast, as has been discussed, the Regulator’s power under s 155 does not have “a limited ambit” but rather as discussed, it has a broad scope. Secondly, unlike the inquiry in Deveson v Australian Broadcasting Tribunal, the scope of the matters to which the power relates under s 155 is not restricted or limited to “issues” but is conferred to wide-ranging matters under the WHS Act as specified in the section.

123. There having been no dispute from the time the Notices were served upon the plaintiff that the Regulator had reasonable grounds for his stated belief, the plaintiff was subject to a statutory obligation to comply with them by producing the documents in strict conformity with the terms of the Notices.

124. In particular, there is no requirement for the regulator to know in advance the actual contents of the documents called for. It is sufficient that he/she has formed the belief on reasonable grounds concerning one or other of the subject matters specified in s 155(1) as discussed above. Once such a belief is held, the regulator has the right to issue a notice for production of documents concerning either a contravention of the Act or for the purposes of monitoring compliance or enforcing the Act. There is no other unstated condition to be satisfied. A similar point was considered in the Smorgon case by Gibbs ACJ at 524:

“There is no justification for reading into s 264(1)(b) a condition precedent which it does not express. There are likely to be many cases in which documents that relate to a taxpayer's taxable income will be of great assistance to the Commissioner in performing his duties under the Act, although the Commissioner is unable, before seeing the documents, to say that they are relevant to a particular issue. It would be an unwarranted limitation on the power given by the section to hold that the Commissioner can only obtain documents if he knows that they provide evidence on a particular matter. The apparent intention of the Parliament is that the Commissioner is entitled to have produced any books and documents that relate to the taxpayer's income or assessment, even if he does not know what those books and documents may reveal. A document may be required to be produced only if it in fact relates to the income or assessment of the person in question, but if it is of that description, that is enough. In other words the Commissioner is entitled to make what was described as a "roving enquiry" into the income or assessment of a particular taxpayer and for that purpose to have produced such documents as relate to that income or assessment.”

125. Finally, I note that the plaintiff did not seek in this case to invoke and establish “reasonable excuse” under the provisions of s 155(5) supported by affidavit provided to the Regulator or by any evidence adduced in the proceedings determined by the Magistrate to support such an excuse.

Conclusion

126. In relation to Ground 1, I have accordingly concluded that the Magistrate did not err at law in not finding that the Notices issues under s 155 of the WHS Act were beyond power and were therefore invalid in terms of this ground of appeal.

127. Upon examination of the Notices, it is clear that they satisfied the conditions specified in s 155. The learned Magistrate was, with respect, correct in making a finding to that effect. Accordingly, no error has been established as contended for by the plaintiff.

The Sentence Appeal

128. Magistrate Goodwin made the following statement in relation to sentence:

“The prosecution submit [sic] that the non-compliance caused considerable delay, and prevented the regulator from properly investigating. It is therefore, to quote Cessnock City Council v Quintaz Pty Ltd (2010) 172 LER 52 [sic – LGERA], Pepper J said:

‘Any compromise in the access to information required by the authority results in a concomitant compromise in the ability of that authority to ensure compliance with the Act and to protect against environmental harm.’

The need for general and specific deterrence is taken into account for the purposes of sentencing to make the offender accountable for its actions, and to denounce the conduct of the offender. Indeed, Inspector Smith said that he wished to investigate what, if any, relationship there was between the incident, and an earlier incident in the mine in 2008. In particular, the documents sought could have revealed whether any recommendation made following the 2008 incident was the subject of direction or action or lack thereof by the offender or any of its officers. I agree with those submissions.” (T 43-44, 13 October 2014)

129. There were, as earlier noted, two grounds relied upon by the plaintiff in the sentence appeal. I will deal with each in turn.

Ground 2: The Magistrate erred both in fact and at law in that she failed to apply (properly or at all) the principle of totality in the sentences which she imposed upon the applicant

130. The written submissions for the plaintiff extracted the following passage from the Magistrate’s decision on sentence:

“Now I turn now to the principle of totality. It is the failure to comply with the notices that is the subject of the offences. The fact that it is the same subject matter in both should not reduce the culpability of the offender. I have taken totality into account, in particular whether the sentences will reflect the total criminality before the Court. It is noted that the maximum statutory penalty in this matter is $50,000 and that is of assistance in determining the objective gravity of the offence, and demonstrates the seriousness of which these offences are viewed.” (T 43, 13 October 2014)

131. Her Honour imposed a fine of $20,000 in relation to each offence in respect of which the plaintiff was convicted.

132. It was submitted for the plaintiff that the Magistrate imposed the penalties in respect of each offence without first determining the appropriate sentence for each, absent considerations of totality before turning to consider the questions of totality: Plaintiff’s Outline of Submissions at [41].

133. In addition, it was contended that the Magistrate imposed the same penalty in respect of each offence notwithstanding that the documents sought in each were the same so that there was no additional harm suffered by the second breach over and above the first and that the offences were clearly related and occurred within a short time span.

134. The respondent’s submission was that this ground did not involve a question of law alone. It contended that the ground requires a consideration of the factual matters bearing upon the application of the principle of totality in the context of the matter. Accordingly, leave of the Court was required. It was submitted that the applicant should not be granted leave.

135. In addition, the respondent contended that the ground had no merit.

136. The respondent in support of the submission in this respect observed that her Honour considered that each of the offences was a separate act of criminality. The fact that there was a commonality between the documents sought by the November and the December notices did not, it was submitted, significantly affect the sentences required to be imposed so as to reflect the separate and additional acts and that each act attracted criminal sanction: Respondent’s Outline of Submissions at [65].

137. It was further submitted on behalf of the respondent that contrary to the implied assertion by the applicant that the principles in Pearce v The Queen (1998) 194 CLR 610 applied, the principles as enunciated by the High Court in that case do not require a sentencing court to expressly state the individual penalty that it would have imposed prior to applying the principles of totality. In that respect it was observed that totality is not a discount to be applied to an otherwise appropriate sentence. The Court is required to review the aggregate of the fines and consider whether it is just and appropriate as a reflection of the criminality overall.

138. It was submitted for the respondent that her Honour had regard to the principle of totality and rejected the contention that the offences did not involve separate acts of criminality.

Ground 3: The sentences imposed upon the applicant were manifestly excessive

139. It was submitted on behalf of the plaintiff that a fine of $20,000 was excessive in respect of each offence when consideration was given to the following matters set out in their Outline of Submissions at [47]:

“a. That the scope of s 155 was a live question and there was no earlier decision providing guidance.

b.   The applicant had an arguable case in respect of the validity of the notices and it was appropriate that the applicant’s substantial arguments be resolved by a court.

c.   The applicant had co-operated with the Department in that it had provided a very substantial volume of material to the Department; indeed it was only a very small part of the total that was disputed.

d.   A number of interviews were also conducted by the Department over a number of days at Broken Hill. The Department had unrestricted access to personnel at the mine site.

e.   The applicant also made a number of its senior personnel available for interview by the prosecutor in 2010, even where those persons were not domiciled in NSW; and

f.   All safety material for PBHL for the 6 months prior to the Mark Pollard incident was provided to the Department.

g.   Prosecutions were commenced alleging breaches of WHSA duties against Perilya and others including officers on 10 June 2014.”

140. It was further submitted for the plaintiff that the nature of the breaches were at the bottom of a range of objective seriousness for the category of offending in question.

141. It was also submitted that it was clear the plaintiff had provided all safety material in relation to the incident on 8 June 2012 and the Broken Hill Mine. Additionally, it was argued that the documents sought in relation to each Notice were the same and that no additional harm was suffered by the second breach.

142. It was submitted that a fine of $20,000 in relation to each of the two offences was excessive in all of the circumstances. The plaintiff sought a variation of the sentences imposed by the Local Court in respect of each offence.

143. The respondent submitted that the Court could appropriately refuse leave to argue this ground of appeal, or otherwise reject it.

144. The respondent contended that what the applicant was seeking was a rehearing of the evidence given in the Local Court on sentence. It was submitted that this was apparent on the basis that the applicant urged the Court to make a different finding as to objective seriousness of the offences without asserting any error on the part of the learned Magistrate: Respondent’s Outline of Submissions at [74].

145. The respondent’s contention was that a mere recitation of the matter previously urged upon the Magistrate did not establish error in the nature of manifest excess. In order to make out this ground it was submitted that there would at least need to be a demonstration that upon the facts as found by the learned Magistrate the sentence was unreasonable or plainly unjust so as to warrant this Court inferring that in some way there had been failure to properly exercise the sentencing discretion.

146. Finally, the respondent contended that her Honour’s finding that the offence was in the low to medium range of objective seriousness was an assessment open to her. The maximum penalty as prescribed by Parliament was one important indicator of the seriousness of the offences. Additionally, the need for general and specific deterrence as identified by her Honour, were also relevant matters, and supported the penalties imposed, notwithstanding the plaintiff’s lack of prior convictions: Respondent’s Outline of Submissions at [75].

147. The submission for the respondent was that the penalties were not unreasonable or plainly unjust and that leave should either be refused or this ground otherwise rejected.

Determination on Grounds 2 and 3

148. On the issue of totality, a reading of the Magistrate’s decision on sentence makes it plain that her Honour applied the principle of totality in determining the penalties to be imposed in a conventional and proper manner.

149. Her Honour was clearly correct in stating that the culpability of the plaintiff should not be reduced by reason of the fact that the same documents were sought in each of the notices.

150. Each contravention of s 155 was a separate offence which had the effect of delaying or hindering investigations into the mine accident. Such offending conduct, as indicated by the maximum penalty for an offence of that kind, reflects the gravity of conduct involving wilful non-compliance with a Notice properly issued under s 155 of the WHS Act. The penalties to be imposed were required to give effect to both general and specific deterrence. Non-compliance of the kind in this case, not surprisingly, may attract substantial penalties.

151. In the application of the totality principle in relation to the two offences in question, the observations of Howie J in Cahyadi v R (2007) 168 A Crim R 41 at [27] are apposite:

“… the issue is determined by the application of the principle of totality of criminality: can a sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that where the offences are discrete and independent acts, the sentence for one offence cannot comprehend the criminality of the other …”

152. I accept the submissions on behalf of the respondent that the two offences involved separate acts of non-compliance such that the criminality involved in one could not comprehend or reflect the criminality in the other.

153. I further accept that no error has been demonstrated, whether of fact or law, by the Magistrate in respect of the penalties imposed. In particular, no error has been demonstrated in her Honour’s determination that the offending conduct fell in the low to medium range of objective seriousness. Bearing in mind that the maximum penalty for such an offence was $50,000, the imposition of a fine of $20,000 in relation to each offence – that is a little less than half the maximum penalty for each offence – I consider to be in line with the factual findings made by her Honour.

154. I do not consider that any sentencing error has been established. In particular, I do not consider that the penalties imposed by way of sentence were manifestly excessive.

155. I consider that whilst leave should be granted in relation to Grounds 2 and 3 relied upon in the sentencing appeal, the appeal against penalty should be dismissed

Appeal From Magistrate’s Order for Costs

156. Ground 4 relates to the costs order made by the Magistrate and is in the following terms:

“Ground 4: The order for costs made by the Magistrate was not just and reasonable in all of the circumstances.”

157. In the Plaintiff’s Outline of Submissions it was noted that the Magistrate made the costs order in favour of the Department in the amount sought. It was noted that s 215(1) of the Criminal Procedure Act 1986 permits the Court to award such professional costs as the Court considers just and reasonable. Such an order is a sentence for the purposes of the CAR Act according to s 3(e) of the definition of “sentence” in that Act.

158. As was noted in the plaintiff’s submissions, the respondent had provided the Magistrate with a Schedule of Costs setting out the basis on which the quantum of costs order was sought: T 163-8, 13 October 2014. Whilst in the plaintiff’s submissions it was stated that the respondent had not provided any “evidence” to support the Schedule there was no objection to the Magistrate’s use of the Schedule as a guide, other than specific criticisms made. Further, it was stated that the Schedule did not provide multipliers in respect of each item so that it was not possible for the Court to determine either the rates charged for a given task, nor the time taken for that task.

159. Reliance was placed upon the decision in Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552 for the proposition that for an order on costs to be just and reasonable the Court must provide the parties a fair hearing on the merits and the terms of the orders made themselves must be reasonable.

160. Consideration of whether the costs ordered against the plaintiff were just and reasonable involves consideration of the rates of charge, the extent of the work undertaken and the time taken to undertake the work: Ly v Jenkins (2001) 114 FCR 237 at [164].

161. It was submitted that the onus is on the claimant to establish reasonableness of the costs claimed: Director General of NSW Dept of Agriculture v Temmingh [2003] NSWSC 598 at [11].

162. It was submitted for the plaintiff that, given the “paucity of detail” provided in the Schedule of Costs provided by the respondent, there was no basis available to the Court to properly determine whether the costs claimed on a party/party basis were reasonable. It was submitted that costs on a solicitor/client basis should not have been awarded at all. Accordingly, it was submitted that the court erred in making any order as to costs on the information before it.

163. In the event that the Court was persuaded that there was error as pleaded in Ground 4, it was submitted that the Court should set aside the costs order and remit the matter to the Local Court pursuant to s 55(2)(c) of the CAR Act to determine the question of costs.

164. In the written submissions for the respondent, it was submitted that the Court may appropriately refuse leave to argue this ground, or otherwise reject it.

165. In relation to the discretion to award costs under s 215 of the Criminal Procedure Act it was submitted that that discretion is a wide one. The Court may order that the accused person pay “such professional costs as the court considers just and reasonable”.

166. The respondent accepted that it had the onus of establishing an entitlement to costs and to establish that they were just and reasonable. In the present case it was observed that a Schedule in relation to costs had been prepared and was provided to both the company’s solicitors and to the Local Court. The Schedule separated the work undertaken into categories. The schedule also included detailed descriptions of the work. It also included the amount of professional costs sought in respect of that work. This, it was submitted, provided sufficient information upon which her Honour could determine whether the costs sought were just and reasonable.

167. It was also observed that her Honour had the assistance of submissions as to reasonableness of the work undertaken, having regard to the manner in which the proceedings were conducted. It was noted that both parties were represented by Senior and Junior Counsel at a two‑day defended hearing. It was also noted that there was a considerable volume of documentary material that had to be prepared and considered during the hearing. Apart from the hearing, there was preparation required and appearance at a further sentence hearing.

168. It was noted that the plaintiff was given the opportunity to be heard on the question of whether a costs order should be made and on the issue of the quantum of any such costs order. The plaintiff had taken the opportunity and had made submissions on those matters.

169. It was further observed that the learned Magistrate had regard to all of the above matters in determining whether the costs sought were just and reasonable. It was stated that her Honour noted that although the proceedings were not factually difficult they were nonetheless proceedings of importance and the prosecution had been put to strict proof. It was observed that it had been noted on the Schedule that it did not include in-house legal costs of the prosecutor or solicitor/client costs.

170. Further, it was submitted that the applicant had not established any error in the exercise of the discretion under s 215 of the Criminal Procedure Act.

171. Accordingly, the respondent’s contention was that Ground 4 had no merit and the Court should refuse leave or otherwise reject the ground.

Determination on Costs Appeal

172. The Magistrate was entitled in the exercise of her discretion to have regard to the nature of the proceedings, the way in which they were conducted, the degree of complexity involved, the evident preparation that had been undertaken by the parties, the issues raised, and the importance of the matter as litigated before her. The learned Magistrate, of course, having then recently heard the proceedings, was in an ideal position to have regard and take account of such matters in the exercise of the discretion on costs.

173. The amount of costs awarded by her Honour was not derived from an unsupported estimate. The respondent had prepared the Schedule with detail provided on the matters identified above. The Schedule was constructed so that the particular work was identified for which charges were sought and details provided as to professional costs of both instructing solicitors and counsel briefed in the matter.

174. No objection was taken to the Schedule being relied upon on the issue of costs as an aid or guide for the Court in the exercise of the discretion. The transcript of the evidence of 13 October 2014 at pp 37-8 records the submissions made on the question of costs. In relation to specific detail in the schedule, limited matters only were identified in the Schedule as calling for specific comment. There were five matters in particular. The first was an observation that on the first day of the hearing, a partner was present as well as another solicitor, apparently an employed solicitor. A question was raised as to the appropriateness of having two solicitors there, although it is noted that that only one solicitor attended on the second day.

175. The response by counsel for the respondent was that it was not unusual to have two solicitors there on the first day of a hearing and it was appropriate thereafter to have only one solicitor.

176. The second matter related to the daily rate of the employed solicitor ($1,470) and the combined rate of the solicitors for the first day, being the figure of $6,813.50. It was submitted that no basis had been made out for the combined charge.

172. The third matter concerned category 3A in the schedule. The comment made by Senior Counsel for the respondent was that there was no detail as to “who’s involved in that, or why”. A query was made as to whether the amount claimed related to a partner or a lawyer: T 38:5-15, 13 October 2014.

173. The fourth matter related to the entry ‘Drafting further statement” for which a charge of $3,245 was raised but that there was no basis upon which it could be determined whether that particular charge was reasonable. It was said it was not known what it related to, or whether it was calculated on the solicitor/client basis: T 38:15-20.

174. The fifth matter, was a submission that the Magistrate could not determine that the costs were reasonable. Reference was then made to counsels’ fees and a submission made as to the rates of $4,000 a day or $400 an hour and the total charged over two days. The balance of counsels’ fees, it was presumed, related to preparation: T 38:30-40.

175. The particular submission made was there was no reason for that level of preparation for Senior Counsel in the proceedings. There was not enough information, it was submitted, to determine reasonableness in respect of that charge: T 38:40-50.

176. Senior Counsel for the respondent in his submissions on costs noted that what had been stated on the respondent’s behalf on the question of costs was only a “very quick analysis and not an in depth one” because it was said that counsel had not been provided with “the mechanism”, nor had the Magistrate, to undertake any in-depth analysis of those costs: T 39:1-10.

177. I do not consider, that this lastmentioned matter has been made out. The parties had been provided with the opportunity of dealing with the question of costs and making submissions on any costs order sought. There had been prepared on behalf of the respondent the Schedule which was provided to the plaintiff’s legal representatives and also provided to the learned Magistrate. The Schedule addressed a number of matters and was structured so as to identify particular areas of charges made or professional costs of the solicitors who instructed on day one of the hearing, and of the solicitor who attended on the second day of the hearing.

178. In relation to counsels costs, the rates or charges upon which counsels’ fees have been calculated were stated.

179. It was noted by Senior Counsel for the respondent that the Schedule did not specify specific rates or particular times for individual items on the Schedule.

180. Although the analysis of costs contained in the Schedule could have provided a greater level of detail, in particular, on the matters referred to by the plaintiff, the fact of the matter was that it was prepared with sufficient data or information to identify the basis or foundation for the total amount of costs order sought. Whilst particular criticisms were made in the submissions for the plaintiff it is to be noted that no application was made for an adjournment to permit the plaintiff to challenge the Schedule as to its accuracy or otherwise, as for example, requiring the production of primary accounting or other records held by the Department’s solicitors to justify the costs. There was, understandably, no suggestion made that the Schedule was other than a bona fide analysis based on source materials. In other words, in those circumstances it was open to the Magistrate to use the schedule as a guide in the exercise of the discretion on costs, the Magistrate having been the tribunal that heard and determined the proceedings on its merits.

181. Whilst questions were raised about particular charges or fees, it is noted that there was no submission made that the claims made for various items of work were self-evidently excessive.

182. The Magistrate’s discretion to award costs was a broad one to be exercised in light of the nature of the litigation, the number of hearing days, the evident preparation involved, including preparation of affidavit material and submissions, the justification for both parties to be represented by counsel, in particular Senior and Junior Counsel, the presence of two instructing solicitors on the first of the two days’ hearing and the nature and content of the cost items set out in the Schedule, and the submissions of the parties.

183. The total amount of costs sought by the Department was not self-evidently excessive given the matters and circumstances referred to above. The material placed before the Magistrate, in my opinion, provided an adequate basis for her Honour to have made the assessment of costs ordered. I do not consider that Ground 4 has been made out.

184. No error having been demonstrated in the Magistrate’s approach on the question of costs I do not consider that leave should be granted to the respondent on that issue. Accordingly Ground 4 should be dismissed.

Orders

In each of proceedings 2014/328915 and 2014/328923, I make the following orders:

1. Leave granted to the plaintiff to appeal against conviction pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2001.

2. The appeal against conviction in Ground 1 be dismissed.

3. Leave granted to the plaintiff to appeal in respect of the penalties imposed by the Local Court on 13 October 2014.

4. The appeal against penalties in Grounds 2 and 3 be dismissed.

5. Leave to appeal refused in respect of the appeal for the costs order made by the Local Court on 13 October 2014 in Ground 4.

6. Leave granted to either party to apply on the issue of the costs of these proceedings.

**********

Amendments

22 July 2015 - Coversheet - hearing date corrected.

Paras [50] and [130] - wording of Ground 2 amended.

Para [63] - name of Mine corrected.

Para [148] - word deleted.

Decision last updated: 22 July 2015