SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2)
[2019] NSWDC 334
•19 July 2019
District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334 Hearing dates: On the papers Date of orders: 19 July 2019 Decision date: 19 July 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Order the prosecutor to pay the defendant’s costs associated with the requests for further and better particulars made by the defendant by letters dated 16 October 2018 and 6 December 2018.
(2) Subject to Order (1), order that each party pay its own costs of and incidental to the defendant’s Notice of Motion filed on 11 March 2019.
(3) Order that each party pay its own costs of determining the issue of costs on the motion.Catchwords: COSTS – whether costs of interlocutory proceedings should be awarded now, or not until conclusion of the prosecution – discretionary factors taken into account in relation to award of costs on interlocutory motion Legislation Cited: Criminal Procedure Act 1986 (NSW)
Work Health and Safety Act 2011 (NSW)Category: Costs Parties: SafeWork NSW (Prosecutor)
AKA Civil Australia Pty Limited (Defendant)Representation: Counsel:
Solicitors:
T Hammond (Prosecutor)
S McIntosh (Defendant)
SafeWork NSW (Prosecutor)
HWL Ebsworth (Defendant)
File Number(s): 2017/379759
Judgment
Background
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On 14 June 2019 I delivered judgment on the defendant’s motion – [2019] NSWDC 257. That motion sought orders that the proceedings be quashed, permanently stayed or dismissed. The orders were sought on two grounds. Firstly, it was submitted that certain particulars in the Summons required a standard of the defendant higher than the standard prescribed by the Work Health and Safety Act 2011 (the Act). Secondly, the defendant submitted that the prosecutor was obliged to, and had not, identified the persons put at risk by any breach by the defendant of the Act.
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I dismissed the defendant’s motion filed on 11 March 2019 and indicated that I would hear the parties further on costs. The parties agreed to deal with costs “on the papers”. In accordance with directions made, the prosecutor filed a written submission on the issue of costs (now marked MFI 7). The defendant filed a written submission on costs (now marked MFI 8).
First Ground for the Motion: The Standard Required
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As pointed out by the defendant in its written submissions, the prosecutor initially conceded that the Summons required a standard of the defendant, which was higher than the standard imposed by the Act. That concession was withdrawn during the oral submissions made on the hearing of the motion. To meet the defendant’s contention, the prosecutor then sought leave to amend the Summons. The final version of the Summons was not brought forward until some hours into the hearing of the motion. Once the Amended Summons was put forward, the defendant no longer submitted that the pleading required of the defendant a standard higher than that which was required under the Act.
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I did not determine whether or not the initial Summons was defective. That became an entirely academic question, once the prosecutor put forward an Amended Summons and sought leave to amend in accordance with its terms.
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At paragraph [38] of my judgment, I said the following:
“There have been costs thrown away by reason of the amendment. The application to amend was not made by a formal Motion, but rather was made responsively after receipt of the defendant’s submissions on its Motion. The prosecution is seeking an indulgence from the court and prima facie it should bear the costs of the defendant, of obtaining that indulgence. Further, at least some of the particulars sought by the defendant have been requested because of the way in which paragraph 13 was originally worded. The costs of seeking those particulars have been thrown away.”
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Having considered the further submissions on costs, I remain of the view expressed in paragraph [38] of my initial judgment. Any party seeking an indulgence from the court is usually expected to bear the costs of the opposing party, which have been thrown away. In the present case this involves consideration of the costs of the application made by the prosecutor, during the hearing of the motion, to amend the Summons. It also includes the costs associated with the prior requests for particulars of the Summons made by the defendant by letters dated 16 October 2018 and 6 December 2018. I propose to order that the costs associated with those earlier requests for particulars be paid by the prosecutor.
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In relation to the first ground of the motion, and the consequent application by the prosecutor to amend the Summons, the starting position is that the prosecutor should pay the defendant’s costs.
Second Ground of the Motion: Identification of “Other Persons”
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For reasons set out in my initial judgment, the defendant failed in relation to its argument concerning the identification of other persons. I find that costs should follow the event, on that part of the motion, which would normally mean that the defendant would be ordered to pay the prosecutor’s costs.
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Form of final costs orders
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The considerations as to costs of the motion on both sides cancel each other out. As to the first ground, the prosecutor should bear the defendant’s costs of that part of the motion. However, as to the second ground, the defendant should bear the prosecutor’s costs of that part of the motion. In the circumstances, the appropriate order is that each party should bear its own costs of the motion. Subject to making a specific order regarding the costs thrown away in relation to the earlier requests for particulars, that will be my order concerning the motion itself.
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The prosecutor submitted that costs should only be awarded at the end of these proceedings. They have not yet been listed for hearing.
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The defendant submitted that the court was not limited as to the time at which it may make a costs order. It also submitted that the power to allow an amendment under s 21 of the Criminal Procedure Act 1986 (NSW) gave the court a wide discretion to make “such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case”.
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I accept the submission of the defendant on this point. There seems to me no utility in expressing a concluded view now, as both parties wish me to do, as to who should pay which costs, but then deferring the making of such an order until the conclusion of the proceedings.
Orders
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My orders are:
Order the prosecutor to pay the defendant’s costs associated with the requests for further and better particulars made by the defendant by letters dated 16 October 2018 and 6 December 2018.
Subject to Order (1), order that each party pay its own costs of and incidental to the defendant’s Notice of Motion filed on 11 March 2019.
Order that each party pay its own costs of determining the issue of costs on the motion.
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Decision last updated: 19 July 2019
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