Titan Plant Hire Pty Ltd v Work Health Authority and Madalena v Work Health Authority (No 2) - [2024] NTSC 8

CITATION:Titan Plant Hire Pty Ltd v Work Health Authority and Madalena v Work Health Authority (No 2) [2024] NTSC 8
PARTIES:TITAN PLANT HIRE PTY LTD (ACN 095 884 441)
v

WORK HEALTH AUTHORITY

and

MADALENA, Jason Frank

v

WORK HEALTH AUTHORITY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NOs:LCA 14 of 2023 (22114160)

LCA 15 of 2023 (22114277)
DELIVERED:  20 February 2024
HEARING DATE:  On the papers
JUDGMENT OF:  Kelly J

CATCHWORDS:
Local Court (Criminal Procedure) Act 1928
(NT)
Work Health and Safety (National Uniform Legislation) Act 2011 (NT),
s 19(2), s 27(1), s 32

Kroehn v Kroehn (1912) 15 CLR 137; Central Australian Aboriginal Congress v CGU Insurance (2009) 24 NTLR 222; Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment (No 2) [2015] NTSC 54; Stanley v Phillips (1966) 115 CLR 470; Liddle v North Australian Aboriginal Legal Aid Service (NTSC unreported); Carrazzo v Weyman [1944] VLR 207
REPRESENTATION:
Counsel:
Appellants:T Russell with J Young
Respondent:  D McConnel SC with J Ingrames
Solicitors:
Appellants:Barry Nilsson Lawyers
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    C
Judgment ID Number:  Kel2401
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Titan Plant Hire Pty Ltd v Work Health Authority and Madalena v Work Health Authority (No 2) [2024] NTSC 8
No. LCA 14 of 2023 (22114160); No. LCA 15 of 2023 (22114277)

BETWEEN:

TITAN PLANT HIRE PTY LTD
(ACN 095 884 441)

Appellant

AND:

WORK HEALTH AUTHORITY

Respondent

AND BETWEEN:

JASON FRANK MADALENA
Appellant

AND:

WORK HEALTH AUTHORITY
Respondent

CORAM: KELLY J
REASONS FOR DECISION
(Delivered 20 February 2024)

This proceeding was an appeal under the Local Court (Criminal Procedure) Act 1928 (NT) against a fine of $960,000 imposed on the first appellant, Titan Plant Hire Pty Ltd (“Titan”) and a fine of $180,000 imposed on the second appellant, Jason Frank Madalena (“Mr Madalena”), the managing director of Titan, by a judge of the Local Court on 15 March 2023 for breaches of s 32 of the Work Health and Safety (National Uniform Legislation) Act2011 (NT) (“the Act”).
Proceedings in the Local Court
Titan pleaded guilty to a charge under s 32 of the Act with respect to a breach of its primary duty of care pursuant to s 19(2) of the Act. Mr Madalena pleaded guilty to a charge brought under s 32 of the Act, for his failure to comply with his health and safety duty as an officer pursuant to s 27(1) of the Act.
The appeal
Both Titan and Mr Madalena appealed against the fines imposed in the Local Court on the following grounds:
Ground 1: The learned sentencing judge erred in calculating the fine to be imposed as a proportion of the maximum penalty rather than embarking on a process of instinctive synthesis.
Ground 2: The fine imposed was manifestly excessive having regard to the maximum penalty prescribed for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupied on the scale of seriousness and the circumstances of the appellant.
Both grounds of appeal were unsuccessful and the appeals were dismissed.
The present application
The respondent now applies for orders that the matter be certified as fit for two counsel (one being senior counsel) and that the appellants pay the respondent’s costs fixed at $57,294.35.
The appellants oppose the matter being certified as fit for senior counsel and take issue with the reasonableness of the amount claimed. The parties agreed that this application would be determined by me on the papers following the provision of written submissions.
Ordinarily costs follow the event and no reasons have been put forward by the appellants why there should not be a costs order in the respondent’s favour.
As to certification for two counsel, the respondent relies on Kroehn v Kroehn,[1]Central Australian Aboriginal Congress v CGU Insurance,[2] and Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment (No 2).[3]
In Kroehn v Kroehn, Griffith CJ said:
I am disposed to state [the rule] thus: Would a prudent person not compelled by poverty come into Court in such a case without two counsel?
In answering that question regard must be had, inter alia, to the importance of the case, the probable duration of the trial, the probability of conflict of evidence entailing the necessity of careful cross-examination, and the general practice as to employing two counsel.
In the same case, Barton J said:
I am of the same opinion. I think the question for the Master was whether the employment of two counsel was reasonably necessary for the proper presentment of the appellant's case—whether, to use the words of Fry J. in Kirkwood v. Webster (9 Ch. D., 239, at p. 242), with a slight alteration, a reasonable man, acting with ordinary prudence, would have ventured to come into Court not so prepared.
Isaacs J also agreed, saying:
The principle to be applied is that stated by Fry J. in Kirkwood v. Webster, namely, "that the case was one in which a reasonable and prudent man, acting with ordinary prudence, would not have ventured to come into Court without" two counsel.
In Stanley v Phillips[4] Barwick CJ, adopted the test set out in Kroehn, and added:
This court in Kroehn v Kroehn expressed a test for deciding whether the fees for two counsel should be allowed in a party and party taxation. The question propounded by Griffith C.J. when he says: ‘Would a prudent person not compelled by poverty come into court in such a case without two counsel?’ must be understood in relation to the basic matter in issue, which is the presentation of the case to ensure a just adjudication. The question is not whether a man in seeking his own maximum advantage would be imprudent not to engage counsel of a particular level of experience or skill. The question is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case.[5]
In Central Australian Aboriginal Congress v CGU Insurance, Mildren J (with whom Martin (BR) CJ and Angel J agreed) said:[6]
The question as to whether more than one counsel should be allowed in an appellate court must be determined in each case on its own particular circumstances and in accordance with the principles which would be applied in a court of first instance.
The standard test is “would a prudent person not compelled by poverty come into Court in such a case without two counsel”. Various factors have been considered relevant to the exercise of the discretion, including the weight of the case and the need for special skill and the complexity of the issues. In any event, there must be some feature of the case which would warrant a prudent litigant to employ two counsel. The test is no different if two juniors are employed. (citations omitted)
In Joondanna Investments Pty Ltd v The Minister for Lands, Planning and the Environment (No 2)[7], Master Luppino applied these principles and set out a number of factors extracted from the authorities which are to be considered when deciding whether two counsel are warranted. Some of those are more particularly relevant to trials, for example the amount of evidence, the number and nature of witnesses and the extent of cross examination required. Among those of special relevance to this appeal are:
(a)the importance, seriousness or weight of the case;
(b)the complexity of the factual and legal issues involved;
(c)the amount of money involved[8]; and
(d)whether the opponent was represented by more than one counsel.[9]
In written submissions, the appellants opposed certification for two counsel on the grounds (inter alia) that minimal evidence was required, no witnesses were called, and the appeal was restricted to questions of law. That amounts to submitting that appeals should be less likely to be certified as proper for the attendance of two counsel than trials. That contention should not be accepted. Those particular factors are simply less applicable to a consideration of whether an appeal should be certified as proper for the attendance of two counsel.
Similarly, I do not see the fact that the appeal did not involve allegations of fraud or other serious imputations of personal reputation or integrity (other factors mentioned in Joondanna Investments, and relied on by the appellants) as particularly relevant.
The respondent contends that, as this was the first appeal to the Northern Territory Supreme Court from a sentence imposed under the Work Health Act, harmonising the Northern Territory jurisdiction with like offending across the national uniform legislation, this case was important for future prosecutions under that Act and involved extensive consideration of interstate authorities including many relied upon by the appellants in their written submissions. This involved a division of labour between junior and senior counsel, avoiding the incurring of excessive costs should all the research have been carried out by senior counsel (another relevant factor mentioned in Joondanna Investments).
Further, the amount of money involved was significant, and the appellants engaged both junior and senior counsel.
The respondent contended that in all of the circumstances, and for these reasons, it was prudent for the respondent to engage both junior and senior counsel and the matter should be certified as fit for two counsel, one of them senior counsel. I agree.
The matter will be certified as appropriate for the attendance of two counsel, one of them senior counsel.
Regarding the application for an order for lump sum costs in the amount of $57,294.35, the respondent relies on an affidavit of Ms Kate Bremner dated 19 January 2024 setting out the amount of costs incurred by the respondent for solicitors, counsel and disbursements. The affidavit does not attach a bill of costs in taxable form. Ms Bremner states at para [16] of that affidavit:
The summary of costs I have produced in this affidavit is not prepared in a taxable form to formally tax the costs. The information is provided to assist the Court with any consideration of a lump sum costs order.
The affidavit also annexes correspondence with the solicitors for the appellants attempting to reach an agreement in relation to costs.
In written submissions, the appellants contend that the amount claimed “vastly exceeds” the amount that would be awarded on party/ party taxation and give some examples of the kind of work that the appellants contend would not be allowed on taxation. The appellants also submit that the number of practitioners involved would indicate a level of duplication.
I am not in a position on the present material to determine what (if any) duplication there may have been or to determine what (if any) portion of the costs claimed would be disallowed on a party/ party taxation. It is therefore not appropriate for me to make a lump sum order for costs.
ORDERS:
(1)The matter is certified fit for the attendance of two counsel, one of them senior counsel.
(2)The appellants are to pay the respondent’s costs of and incidental to this appeal, including the costs of this costs application, to be agreed or taxed.
----------------------------

[1] (1912) 15 CLR 137 at 141.

[2] (2009) 24 NTLR 222 at [17] – [18].

[3] [2015] NTSC 54 at [11] – [12] and [17].

[4] (1966) 115 CLR 470.

[5] (1966) 115 CLR 470 at 478-479.

[6]at [17] – [18].

[7] [2015] NTSC 54.

[8] See Liddle v North Australian Aboriginal Legal Aid Service Unreported, Northern Territory Supreme Court, Thomas J, 2 February 1994.

[9] Carrazzo v Weyman [1944] VLR 207 (“Joondanna Investments”).