Nash v Resource Pacific Pty Ltd (No 4)

1. [1]

   HIS HONOUR: On 15 February 2011, a prosecution was instituted by Robert William Regan, for whom Ms Jennifer Ann Nash (“the prosecutor”) was substituted by order of the Industrial Court of New South Wales on 7 March 2018, against Resource Pacific Pty Ltd (“the defendant”).

2. [2]

   The charges against the defendant are specified in further amended applications for order filed on 11 June 2013. The defendant was charged therein with one breach of s 8(2) (matter number 2016/00019616) and one breach of s 10(2) (matter number 2016/00019632) of the Occupational Health and Safety Act 2000 (NSW) (“the OHS Act”) (collectively, “the matters”). These two breaches were pleaded by the prosecutor as occurring on 18 February 2009 at the defendant’s place of work, the Ravensworth Underground Mine (“the Mine”), near Singleton in New South Wales. The Mine was both a coal workplace within the meaning of the OHS Act and a place of work to which the Coal Mine Health and Safety Act 2002 (NSW) (“the CMHS Act”) applied.

3. [3]

   The prosecutor particularised the risk to health and safety in the s 8(2) charge as follows:

4. [4]

   There were some inconsequential differences in how the risk was particularised in the s 10(2) charge. The particulars of each charge do, however, differ.

5. [5]

   Section 8(2) of the OHS Act provided at the time of the incident as follows:

6. [6]

   The elements of the s 8(2) offence were (leaving aside requirements as to “undertaking” and place of work):

7. [7]

   The s 8(2) charge had, relevantly, particulars expressed in para 3 and paras 6-9 of the charges in the further amended application.

8. [8]

   Paragraphs 6-9 set out the defendant’s omissions in the s 8(2) charge in such a manner that they were required to be read with the corresponding paragraph or particular 3(a)-(d). Thus, in the judgment delivered by the Court in relation to the further amended applications the Court considered particular 6(a) and then particulars 3(a) and 6(b); 3(a) and 6(c); 3(a) and 6(d); 3(b) and 7; 3(c) and 8; and 3(d) and 9, respectively.

9. [9]

   The Court also considered together particulars 4 and 10, and 5 and 11.

10. [10]

    Section 10(2) of the Act provided:

11. [11]

    Many of the principles applicable to the proof of a contravention of s 8(2) of the Act, discussed in Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 (“Nash No 1”) at [375], are applicable to an offence under s 10(2) of the OHS Act, particularly those concerning risk and the need to prove a causal nexus.

12. [12]

    In WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280 at [160], a Full Bench of the Industrial Court of NSW found that to establish an offence against s 10(2), the prosecutor must prove the following elements:

    1. (1)

       a person has control of any plant or substance;

    2. (2)

       the plant or substance is used by persons at work;

    3. (3)

       there has been a failure by the person in control of the plant or substance to ensure that the plant or substance was safe and without risks to health; and

    4. (4)

       the failure in (3) occurs in circumstances where the plant or substance is not properly used.

13. [13]

    In relation to the s 10(2) charge, the Court dealt with particulars 8 through to 12.

14. [14]

    In the trial of the matter, the defendant raised defences in respect of various particulars of the charges, pursuant to s 28(a) of the OHS Act. The provisions of s 28, which applied at the time of the incident, were as follows:

15. [15]

    On 2 February 2018, the Court reached a verdict in the trial: Nash No 1.

16. [16]

    At [878] of Nash No 1, the Court reached the following overall conclusions:

    1. (1)

       The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632.

    2. (2)

       The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632.

    3. (3)

       The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616.

17. [17]

    It should be noted that the conclusions reached by the Court refer to two particularised measures with respect to particular 9. This was because of the particular utilised the word “or” to distinguish between two particularised measures. Particular 9 was in the following terms:

18. [18]

    The defendant was found not guilty of the charges brought under ss 8(2) and 10(2) of the OHS Act. The charges were dismissed.

THE PRESENT ISSUE

1. [19]

   Upon delivery of the judgment on 2 February 2018, senior counsel for the defendant made an application that the prosecutor pay the defendant’s costs of the respective proceedings. The hearing of that application was deferred with leave being given to the defendant to approach the Court to renew the application. That step was taken on 4 May 2018.

2. [20]

   On 5 June 2018, consent orders were made setting a program for the hearing of the question of costs. An amended program was fixed by consent on 23 July 2018 in the following terms:

3. [21]

   This judgment concerns the application by the defendant for an order that the prosecutor pay the defendant’s costs of the matters.

APPLICABLE LEGISLATION: COSTS

1. [22]

   Because the proceedings were summary proceedings determined by this Court under Pt 5 of Ch 4 Criminal Procedure Act 1986 (NSW), costs in the proceedings are governed by Div 4 of Pt 5 of Ch 4 of that Act: Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [75]-[99].

2. [23]

   In Div 4, s 257C of the Criminal Procedure Act provides:

3. [24]

   Section 257G provides:

4. [25]

   Whilst ordinarily s 257D imposes a hurdle to a successful defendant obtaining an order under s 257C, that hurdle does not apply in cases of prosecutions under the OHS Act (which has been repealed)by operation of cl 13 of Sch 4of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”), extracted below:

5. [26]

   The WHS Act commenced on 1 January 2012. Before that date, s 257D of the Criminal Procedure Act relevantly provided:

6. [27]

   Accordingly, s 257D of the Criminal Procedure Act does not apply to costs for the defendant in these proceedings.

Particulars 9 and 11

1. [28]

   Having regard to the parties’ submissions as to particulars 9 and 11 in the context of their submissions as to costs, some particular attention should be given to the findings as to those particulars of the s 8(2) charge in Nash No 1.

2. [29]

   Paragraphs [566]-[732] of Nash No 1 dealt with the first particularised measure concerning a failure to ensure that trucks driven by “the men” had adequate overhead and fall protection installed (referred to as “Falling Object Protection Structure” or “FOPS”).

3. [30]

   Paragraphs [733]-[736] of Nash No 1 dealt with the second particularised measure. The Court found the prosecutor had failed to prove beyond reasonable doubt that aspect of the particular.

4. [31]

   The ultimate conclusion reached by the Court, as to the first particularised measure, is contained in [649]-[651] of Nash No 1, as follows:

5. [32]

   Those conclusions were arrived at after the receipt of a considerable amount of expert evidence bearing upon the first particularised measure in particular 9.

6. [33]

   The parties relied, in part, upon the reports of two experts: in the prosecutor’s case, Mr Wiltshire and for the defendant, Dr Richardson (“the experts”). That evidence was summarised at [605]-[606] of Nash No 1 as follows:

7. [34]

   Wiltshire Reports 3 and 4 were excluded after objections, as were parts of Wiltshire Report 5. The reasons for this ruling included the following (at [607(11)]):

8. [35]

   In considering those parts of the reasons of the Court, as to the first particularised measure in particular 9, which bear upon the present application, it is useful to first consider the conclusions of the Court as to a challenge by the defendant to the validity of that aspect of the particular. That passage of the judgment extends from [567]-[585] and was in the following terms:

9. [36]

   Issues were found to exist with aspects of the particulars. This was explained at [586]-[590] of the judgment as follows:

10. [37]

    As to the determinations of liability, the Court in Nash No 1 commenced with a discussion of the prosecutor’s submission at [608]:

11. [38]

    After a discussion of the expert evidence the following observations were made as to concurrent evidence of the experts (Nash No 1 at [632]-[634]):

12. [39]

    The Court then made some preliminary observations bearing upon the ruling on liability. The following aspects of the judgment in Nash No 1 (at [637]) should be referred to in the present context:

13. [40]

    Central to the Court’s reasons as to why the prosecutor had established the elements of the s 8(2) offence under the OHS Act, vis-à-vis the first particularised measure in particular 9, was the passage of Nash No 1 appearing at [640]-[649], which is extracted below:

14. [41]

    Nevertheless, the Court came to the view that the defendant had “overwhelmingly” established, on the balance of probabilities, a defence under s 28(a) of the OHS Act. Whilst the subject of expansion, the primary reasons, in that respect, were as follows (at [652]):

15. [42]

    Mention should also be made to the following passages in Nash No 1 (at [653], [660], [661], [670] and [699]-[703]), which are extracted below:

16. [43]

    I also refer to, in relation to the second particularised measure in particular 9, the passage at [733]. The Court stated:

17. [44]

    The discussion as to this particular was somewhat complex and essentially involved a question as to whether the prosecutor had discharged the burden of proof that conducting a risk assessment of the risks inherent in the system of waste management would have eliminated or minimised the particularised risk.

18. [45]

    The Court’s conclusions as to liability, in this respect, is expressed in Nash No 1 at [831]-[834] as follows:

19. [46]

    The Court’s conclusion that the defendant had made out a defence under s 28(a) of the OHS Act was expressed in [837] of Nash No 1. I draw particular attention to [837(3)], which is extracted below:

RELEVANT PRINCIPLES: COSTS OF SUMMARY CRIMINAL PROCEEDINGS

1. [47]

   The leading decision on costs for defendants in summary criminal proceedings is Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (“Latoudis”). This remains the case after the enactment of s 257C of the Criminal Procedure Act, including in cases under the OHS Act: see Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (“Bulga”) at [219]-[221]. Support for that conclusion is also available from the judgment of the Court of Criminal Appeal in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [68]-[70] (per Basten JA); noting that appeal concerned proceedings under the WHS Act (the Court followed Bulga).

2. [48]

   The parties agreed upon the relevant principles to be derived from that judgment, which I consider to be correct. Those principles were as follows:

   1. (1)

      Subject to any contrary legislative indication, costs in summary proceedings do not follow the event and a successful defendant in such proceedings has no right to an order for costs: Latoudis at 568-569 (per McHugh J).

   2. (2)

      A successful defendant in summary proceedings ordinarily has a reasonable expectation of obtaining an order for the payment of his or her costs on the basis that it is just and reasonable that the prosecutor reimburse him or her for liability for costs which have been incurred in defending the prosecution: Latoudis at 544 (per Mason CJ), 565 (per Toohey) and 569 (per McHugh J). Toohey J spoke of it being “unnecessary to speak in terms of a presumption” but rather that “ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket” (Latoudis at 565).

   3. (3)

      The purpose of a costs order is not to punish the unsuccessful party but to compensate the successful party: Latoudis at 567 (per McHugh J).

   4. (4)

      A court ought not to exercise its discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation: Latoudis at 569 (per McHugh J); see also at 565 (per Toohey J).

   5. (5)

      The fact that a prosecutor has acted in good faith in the public interest is not a ground for depriving a successful defendant: Latoudis at 569 (per McHugh).

   6. (6)

      There will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs: Latoudis at 544 (per Mason CJ) and 565 (per Toohey J).

   7. (7)

      Circumstances in which it may not be just and reasonable to order costs against a prosecutor or to order payment of all the defendant's costs include, but are not limited to, the following:

3. [49]

   I agree with the submission advanced for the prosecutor that a complementary proposition to that referred to at [48(3)] above is that there may be grounds connected to the charge itself or the conduct of the litigation that militate against an award of costs in favour of a successful defendant. Insofar as the conduct of the litigation is concerned, that is reflected in the propositions at [48(7)] above.

4. [50]

   The prosecutor submitted, however, that it needs to be “steadily borne in mind when applying Latoudis that that matter did not concern a statutory offence in which the defendant bore an onus to make out the defence provided for under the OHS Act”. That was described as a significant difference. It was contended that the prosecution under the OHS Act did not concern typical criminal matters. Whilst, the prosecutor proved particulars 9 (as to the first measure) and 11 beyond reasonable doubt; the charges were nonetheless dismissed because the defendant made good a statutory defence (noting the remainder of the particulars were not proven beyond reasonable doubt).

5. [51]

   The defendant recognised Latoudis did not deal with “regulatory offences” (involving “strict” liability) but contended that the general principles as to costs in summary proceedings nonetheless applied. Thus, the principles in Latoudis applied. The approach of the prosecutor as to the application of those principles, it was submitted, should be rejected as being inconsistent with Latoudis and its application by the Court of Criminal Appeal in matters such as the present one.

6. [52]

   It was also submitted by the defendant that if the prosecutor’s approach was accepted, the effect of the judgment in Latoudis would be reversed as it was common place for prosecutors to establish a “prima facie” case in a strict liability regime, with charges only being dismissed when a defendant made out a statutory defence.

7. [53]

   I will return to those issues of principle after discussing more broadly the parties’ submissions.

Defendant’s Submissions

1. [54]

   The primary case for the defendant consisted of the following propositions:

   1. (1)

      There has been no conduct of the defendant which unreasonably induced the prosecutor to think that either charge could successfully be brought against the defendant or which unreasonably occasioned unnecessary expense in the institution or conduct of the proceedings: Cf Latoudis at 569 (per McHugh J).

   2. (2)

      A successful defendant cannot be deprived of his, her or its costs because his, her or its conduct gave rise to a suspicion or probability that they were guilty of the offence charged: Latoudis at 570 (per McHugh J).

   3. (3)

      There is no other reason why an order should not be made that the prosecutor pay the defendant's costs of the proceedings.

2. [55]

   Nevertheless, what followed in the contest as to costs was substantially framed by submissions advanced by the prosecutor responsively to the defendant’s primary submissions. I will, therefore, commence with an examination of the prosecutor’s submissions as to costs rather than a further exposition of the defendant’s submissions at this stage.

Prosecutor’s Submissions

1. [56]

   Save for particulars 9 and 11 of the s 8(2) charge, the remaining particulars alleged in that charge were in substantially the same terms as the particulars in the s 10(2) charge or at least sufficiently similar that the evidence with respect to those particulars was the same.

2. [57]

   The prosecutor did not prove the s 10(2) charge (or the counterpart particulars of the s 8(2) charge) and, in that respect, the prosecutor would not contest an award of costs.

3. [58]

   Particulars 9 and 11 of the s 8(2) charge were concerned, respectively, with the alleged failure on the part of the defendant to ensure that the trucks driven by the drivers had adequate fall protection installed and a failure to conduct or commission an adequate risk assessment.

4. [59]

   Two issues associated with particulars 9 and 11 attracted the greatest amount of evidence and hearing time and, consequently, costs of the proceedings. By comparison, the evidence as to the remaining particulars was small both in volume and in terms of the amount of court time.

5. [60]

   It is also significant, it was submitted, that in respect of particulars 9 and 11 of the s 8(2) charge, the Court found that the prosecutor had proved the contravention beyond reasonable doubt, but the defendant had satisfied its onus of proving, on the balance of probabilities, that it was not reasonably practical for it to have complied with s 8(2) of the OHS Act in those respects.

6. [61]

   Balancing the interests of justice and providing for equity between the parties, should result in the prosecutor and the defendant paying their own costs with respect to that part of trial concerning particulars 9 and 11.

7. [62]

   The prosecutor’s submissions as to the significance of the nature of a regulatory scheme, which placed the onus upon a defendant to establish a statutory defence, has been earlier discussed. In oral submissions, the prosecutor submitted that s 28 of the OHS Act operated in such a way that the provision is not engaged unless an offence has been proven, namely, the defendant has failed to comply with a provision of the OHS Act. This is amply demonstrated by s 28(b) of the OHS Act. That provision operated, it was submitted, where “the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision”. The reference to the commission of an offence in that context is demonstrative of the provision only being engaged when an offence is proven. The statutory defence does not concern the elements of the offence the prosecutor is required to prove. The proof of a defence in this case required much less time and costs than proof of the s 8(2) offence per particular 9. Further, the defendant did not admit the offences, subject to any statutory defence.

8. [63]

   Where a defendant's successful defence of a summary prosecution ultimately turned on it successfully establishing a positive defence to a contravention that the prosecutor proved beyond a reasonable doubt, it is just and reasonable for the Court to decline to order the prosecutor to pay the defendant's costs. That is because in most criminal cases the prosecution will bear the onus of proving the elements of the offence beyond reasonable doubt and the defendant has no obligation to prove anything. In those circumstances, the prosecutor may be expected to have before it sufficient relevant evidence upon which to determine whether the prosecution has reasonable prospects of success prior to commencing the proceedings.

9. [64]

   By contrast, where the defendant successfully makes out a defence to a proven contravention particularly on the basis of material not available to the prosecutor before the proceedings have been commenced or before the hearing of the proceedings commences, the prosecutor has been deprived of an opportunity to consider all of the relevant evidence to determine whether the proceedings should be commenced prior to doing so.

10. [65]

    This is such a case, as the prosecutor did establish the contravention with respect to particular 9 and 11 beyond reasonable doubt and the charges were dismissed only after the defendant made out a successful defence.

11. [66]

    Moreover, in the case of particular 9, the prosecutor was not made aware of evidence upon which the defendant proposed to rely until some time after the trial had commenced and at a time when the prosecution case was close to finishing.

12. [67]

    Prior to 29 March 2016, there was no evidence available to the prosecutor that suggested that it was not reasonably practicable for the defendant to have ensured that the trucks driven “by the men” had adequate FOPS. By that date the Court had heard over 27 days of evidence. On that occasion, the defendant adduced evidence upon which it intended to rely to prove a matter with respect to the onus it bore. Whilst that occurred before the close of the prosecutor’s case it was very near the end of that case.

13. [68]

    Additionally, the defendant conducted its defence in a way that prolonged the proceedings unreasonably. This included the late service of the expert evidence of Dr Richardson and other experts, which necessitated adjournments of the proceedings so that the prosecutor could obtain its own expert reports. It also included unnecessary and prolix cross-examination of prosecution witnesses and the tender of a large amount of documentary material, much of which was admitted provisionally because its relevance was not immediately apparent.

14. [69]

    The prosecutor made further submissions regarding the disentitling conduct of the defendant as to the first particularised measure in particular 9 of the s 8(2) charge, which in summary were follows:

    1. (1)

       The late service of Dr Richardson’s report resulted in the prosecutor seeking an adjournment to obtain its own expert reports.

    2. (2)

       There was no evidence available to the prosecutor to suggest it was not reasonably practicable for the defendant to have ensured the truck drivers by then had adequate FOPS (after 27 days of hearing).

    3. (3)

       Richardson Reports 1 and 2 (were tainted by errors concerning the force applied (identified by Mr Wiltshire in Wiltshire Report 1 at paras 16-20 and as acknowledged by Dr Richardson during oral evidence (see T2398-2399) (see also the Joint Report at paras 20-23).

    4. (4)

       In order to establish the first particularised measure of particular 9, the prosecutor has to prove all elements of the offence as they applied to that particular. The Court found the prosecutor had done so by reliance upon an “energy absorbing FOPS case”. That case was contested. The prosecutor was required to prove that the energy absorbing FOPS would eliminate all risk.

    5. (5)

       The prosecutor demonstrated that the report of Dr Richardson had only dealt with energy resistance and not energy absorbing FOPS. It was only in the conclave that Dr Richardson recognised that some form of energy absorbing FOPS may be used to absorb energy and mitigate risk.

    6. (6)

       Latoudis was not dealing with this type of offence. The judgment does not provide “an answer in every situation where a prosecutor was unsuccessful”. The use of the expression prima facie case by the defendant is wrong. As a matter of law, the offences under the OHS Act must, subject to a statutory offence, be proved. The presumption of innocence was central to the reasoning in Latoudis. It did not apply here.

    7. (7)

       The Court should not put at zero that the prosecutor proved the elements of the offence. The prosecutor only failed in meeting a case (vis-à-vis the defence) where it did not have the onus.

15. [70]

    In order to do justice between the parties the Court has a jurisdiction to apportion costs. If the Court did not accept the prosecutor’s primary argument, the Court should consider apportionment.

Defendant’s Response

1. [71]

   The defendant submitted that the contention that the defendant should not have a reasonable expectation of obtaining an order for the payment of costs where, in summary proceedings, the defendant has succeeded in proving a defence under the OHS Act, contrary to establishing that the prosecutor had not prima facie established the particulars of the charge beyond reasonable doubt is an unwarranted gloss upon the words of the statute, contradicts the decision in Latoudis, and has no principled basis.

2. [72]

   The prosecutor pointed to no authority to support her assertion that, in circumstances where a statutory defence is established to a proven contravention, it is just and reasonable for the Court to decline to order the costs against the prosecutor.

3. [73]

   In Latoudis, albeit in the minority, Dawson J considered that to differentiate a case in which a defendant properly escapes conviction without having positively established innocence, from one in which a defendant has positively done so, "would be invidious and inconsistent with the presumption of innocence" (at 560). The majority did not dissent from this statement. It is respectfully submitted that the prosecutor's contention merits the same conclusion. The prosecutor's submission suggests that the way in which the defendant was able to establish its innocence is significant to the decision-making process under s 257C of the Criminal Procedure Act. As indicated above, such an approach has no support in the OHS Act, contradicts the principles of Latoudis and lacks a principled foundation.

4. [74]

   Section 28 of the OHS Act entitled the defendant to dismissal of the s 8(2) charge if it established the particularised measures were not reasonably practicable. Parliament could have made a distinction when authorising an award of costs to a successful defendant in such a case but has not done so. With respect, it was submitted, it is not for the Court to remodel the discretion to award costs conferred by s 257C in the absence of authority in the statute to do so. The legislature specifically preserved the capacity for the award of costs in proceedings under the OHS Act, namely, the present proceedings from exclusion that may otherwise apply.

5. [75]

   In the case of the s 10(2) charge, the prosecutor's submission has no application in any event as the Court dismissed this charge without reference to the statutory defences. The defendant is entitled to its costs on each charge brought before the Court.

6. [76]

   The defendant also submitted that the establishment of a prima facie case by the prosecutor was irrelevant to the question of costs. The following submission was made:

7. [77]

   The defendant’s contentions on the first particularised measure in particular 9 may be considered in two parts. First, it was submitted in written submissions in reply as follows:

8. [78]

   The defendant contended that, at the time of the service of Dr Richardson’s first report, there were no relevant Australian Standards bearing upon the defendant’s operations which were the subject of the charges. That evidence led to the prosecutor changing the way it pursued particular 9, in terms of the first particularised measure.

9. [79]

   The defendant’s written submissions in reply then continued, as follows:

10. [80]

    As to the timing of the service of Dr Richardson’s report, the defendant provided the report earlier than it was required to do, absent any orders from the Court. The defendant gave notice of an issue raised in its defence. Further, there could have been no reasonable expectation in the defendant that the service of its report could have resulted in such an expenditure of time and costs in the proceedings as the time and costs derived from the prosecutor’s exploration of an energy absorbing FOPS. The time taken by the prosecutor to develop evidence on the issue was considerable and it may be doubted that earlier service of Mr Richardson’s first report may have produced any saving of time. Rather than withdrawing that particular of the charge, the prosecutor effectively relied upon further particulars and a “different FOPS”.

11. [81]

    That different system of FOPS did not exist at the time of the incident (or at the commencement of the proceedings). The issue took on a “life of its own” as further adjustments were made to a new and untested model to make it workable.

12. [82]

    Whether Mr Richardson made a mistake or not in some of his calculations in Richardson Report 1, the ultimate finding of the Court was, as Dr Richardson opined, energy resistant FOPS would not have worked. Thus, the prosecutor had not considered the issue of how it may prove the offence under s 8(2) with respect to the first particularised measure in particular 9. After Dr Richardson’s report, the prosecutor brought a new case as to the first particularised measure in particular 9.

13. [83]

    Further, even as to energy absorbing FOPS, the Court found that the modification to trucks to make it work fell outside of the particulars. Even though the charge was found under absolute liability to be proven, the Court found that there was “great difficulty” in actually making the FOPS model prepared by the prosecutor work.

14. [84]

    As to particular 11, the defendant submitted:

15. [85]

    As to the prosecutor’s contention relating to the conduct of the proceedings, more generally, the defendant submitted:

16. [86]

    Finally, the defendant submitted the applicable authority on apportionment was Bulga at [220]. However, it was submitted apportionment did not apply, as there is no instance of the defendant having failed in its case.

CONSIDERATION

1. [87]

   The final disposition of the prosecution brought against the defendant for offences under the OHS Act in these matters occurred in the summary criminal jurisdiction of this Court. Upon the dismissal of these proceedings, namely, the charges brought for offences under ss 8(2) and 10(2) of the OHS Act, the Court was seized of a discretion to award costs against the prosecutor pursuant to s 257C of the Criminal Procedure Act.

2. [88]

   In submissions directed to the exercise of that discretion both parties focused attention upon the determination of the Court as to the first particularised measure in particular 9 and, to a lesser extent, particular 11 of the s 8(2) charge (“the subject particulars”). The prosecutor conceded that the defendant should have costs with respect to the s 10(2) charge (and the counterpart particulars of s 8(2) charge). The disposition of the costs issue shall proceed upon that foundation, noting that the prosecutor’s primary position was that each party should pay its own costs with respect to that part of the proceedings concerning particulars 9 and 11 (the prosecutor did not distinguish, in that respect, the second particularised measure in that contention but it is consistent with her overall submissions on costs that the costs of that particular measure should be treated in the same manner as the s 10(2) charge).

3. [89]

   Latoudis is the leading authority setting principles for the exercise of a discretion to award costs in criminal summary proceedings. The relevant principles deriving from the High Court have been distilled earlier in this judgment.

4. [90]

   The prosecutor submitted that the Court should cautiously approach the application of Latoudis in the context of the case of the public regulatory offences of the kind found under the OHS Act for a number of reasons which are discussed more fully in the earlier summary of the prosecutor’s submissions but may be encapsulated here as comprising of the following:

   1. (1)

      Under that scheme the defendant bore the onus of making out a defence to the civil standard. The defendant discharged that onus with respect to the subject particulars.

   2. (2)

      That defence was only enlivened after the prosecutor had proven beyond reasonable doubt the elements of the offences charged, under ss 8(2) and 10(2) of the OHS Act for particularised risks and measures. The prosecutor had proven beyond reasonable doubt the respective charges with respect to the first particularised measure in particular 9 and particular 11 of the s 8(2) charge.

   3. (3)

      In typical criminal cases, the prosecutor may be expected to have evidence before it to determine whether a prosecution has reasonable prospects. Often times, the defendant will make out a defence on material not available to the prosecution before the hearing commences in circumstances where the defendant is peculiarly placed to know and acquire such evidence.

   4. (4)

      Thus, in this case, the defendant produced evidence after 27 days of hearing as to the first particularised measure in particular 9 to prove that FOPS were not reasonably practicable for the purposes of s 28(a) of the OHS Act. The defendant bore the onus to make out that defence.

   5. (5)

      There was no evidence available to the prosecutor that the particularised FOPS were not reasonably practicable. The prosecutor ultimately proved the elements of the first particularised measure of particular 9 by its reliance on energy absorbing FOPS but that evidence did not satisfy the Court that the measure was reasonably practicable for the purposes of s 28(a) of the OHS Act.

5. [91]

   It is unnecessary to resolve the issue of principle raised by the prosecutor in those submissions as, in my view, even if the application of Latoudis as espoused by the prosecutor (the prosecutor did not appear to argue Latoudis was to be distinguished as such) was applied in these matters, upon a proper appreciation of the conduct of the trial and ultimately the parties with respect to subject particulars, it would nonetheless be appropriate to make an award of costs in favour of the defendant.

6. [92]

   My reasons for that conclusion, with respect to the first particularised measure, are as follows (each of which derives from findings in Nash No 1 and some of which stands as a rejection of the prosecutor’s submissions as to the course of the proceedings):

   1. (1)

      Even though the Court found the first particularised measure to be valid, it also found the means by which the defendant discerned the prosecutor’s case as to this measure was by the production of the expert evidence of Mr Wiltshire. There was nothing on the face of the particular, the opening address of the prosecutor or evidence led in the prosecutor’s case at trial, prior to the evidence of Mr Wiltshire much later in the proceedings, which disclosed that the adequate overhead fall protection relied upon by the prosecutor to establish the first particularised measure in particular 9, was the model concept FOPS or an energy absorbing FOPS. The model required development by Mr Wiltshire during the trial.

   2. (2)

      Having regard to earlier stages of the trial, the Court accepted the submission of the defendant that it appeared particular 9 was drafted on the basis of the prosecutor’s view that the hopper bin was designed to be used by mine trucks fitted with FOPS, such as a CAT 773 mine truck. By the end of the case, there was no evidence that such a truck could withstand the impact of 10 tonnes of chitter dropped from Bin 802. As noted in Nash No 1 (at [733]), despite the potential significance of the second particularised measure of particular 9, it had received scant attention by the prosecutor (the particular was ultimately dismissed in Nash No 1 by the giving of short reasons).

   3. (3)

      It followed that the service of Dr Richardson’s report was the first evidence in the proceedings directly concerning the first particularised measure, notwithstanding the prosecution commencing on 15 February 2011 and a substantial amendment to the charges being allowed on 11 June 2013. That evidence was not initially led as to the statutory defence (as it was later employed) but to disprove the first particularised measure in particular 9 of the s 8(2) charge. In other words, it went to the question as to whether the prosecutor had proved particular 9 of the s 8(2) charge beyond reasonable doubt. That was because the evidence went to:

   4. (4)

      Whatever the error in the equation used by Dr Richardson in Richardson Reports 1 and 2, alluded to in a footnote to the prosecutor’s submission (this submission seems to also include a reference to the absence of a safety factor in the Australian Standard referred to by Dr Richardson), the Court accepted the evidence of Dr Richardson that, applying the only available Australian Standard for FOPS at the time of the incident giving rise to the charges, the fitting of FOPS designed to that standard to a relevant truck would not have been able to withstand a fall of either 5,000 kg falling approximately 3 metres in 1 second or 10,000 kg of coal reject falling approximately 3 metres in 2.5 seconds (these measures were designed to replicate the fall at the time of the incident). In other words, an energy resistant FOPS would not have withstood the fall of chitter relevant to the prosecution. The particular could not have been proven beyond reasonable doubt in the light of that evidence, absent other evidence as to how an adequate FOPS could have been applied.

   5. (5)

      Those circumstances and the course of the trial after the service of Dr Richardson’s evidence are demonstrative of the fact that at the time of the service of Dr Richardson’s first report (near the close of its case), the prosecutor had not disclosed its case on the first particularised measure of particular 9 was predicated on energy absorbing FOPS. That case only emerged after the prosecutor engaged Mr Wiltshire in the aftermath of the service of Dr Richardson’s evidence. Until the service of Dr Richardson’s report there was no expert evidence regarding FOPS that the prosecutor had indicated would be part of her case. The passage of time that was then required to obtain Mr Wiltshire’s evidence amply demonstrated that the prosecutor had not adequately obtained evidence as to energy absorbing FOPS prior to the commencement of the trial on 15 February 2011 or even by the time of the service of Dr Richardson’s report on 29 March 2016.

   6. (6)

      What followed was a significant expenditure of time, in the trial, by the prosecutor proving that particular based on an energy absorbing FOPS in a context where there had been no prior particularisation of that form of FOPS. The defendant correctly submitted that the issue of an energy absorbing FOPS took on a life of its own as further adjustments were made to the model by Mr Wiltshire.

   7. (7)

      Having regard to the absolute or strict duty imposed by s 8(2) of the OHS Act, the Court found (Nash No 1 at [640]-[644]) that, notwithstanding serious defects in the model concept FOPS, because it did afford some minimisation or mitigation of an uncontrolled risk (in the sense of the particular) the bringing of the model to fruition by development and installation of such a FOPS, fell within the duty involving the obligation to be proactive.

   8. (8)

      However, the findings of the Court as to whether the defendant made out a statutory defence also cast a light on the conduct of the prosecutor’s case.

   9. (9)

      The evidence revealed there were no structures of the kind anywhere in the world in 2008 or at the time of the reports of Mr Wiltshire being prepared after the commencement of the trial. The structure was entirely novel, untried and not adequately tested. The model required modification during the course of the proceedings both as to the principles underpinning the development of the FOPS structure and the modifications required of truck and dog combinations to adapt to the installation of the energy absorbing FOPS. The model’s emergence during the trial was described at [580]-[585] and [587]-[590] of Nash No 1 (extracted above). The Court made a finding that some of the modifications required to vehicles to accommodate the model concept FOPS fell outside the particulars of s 8(2) charge – see [703] of Nash No 1.

   10. (10)

       Further, whilst the model concept FOPS provided a degree of protection, albeit via an untrialled and untested structure, the design left a serious issue as to the safety unchecked such that there remained, even after the considerable time spent on its development by Mr Wiltshire during the trial, a serious risk of death or serious injury if the measure were adopted. Further the Court found that no reasonable colliery operator in the position of the defence could possibly be expected to take a measure which did not protect the whole of the cabin roof and that it was not incumbent upon the defendant to take a measure that was novel, untested and untrialled.

   11. (11)

       A significant portion of the trial, as illustrated by Nash No 1, was spent in the contest as to the first particularised measure in particular 9. Putting aside the first two reports of Dr Richardson concerning the proof of the particular, a substantial amount of the time was spent in the prosecution’s case, unsuccessfully, resisting the defendant’s statutory defence of that particular.

   12. (12)

       There was nothing, in my view, about the manner of the defendant’s service of Mr Richardson’s first two reports which represented disentitling conduct as to costs. There was no obligation to serve them earlier in time and, in particular, before the close of the prosecutor’s case, particularly in circumstances where the prosecutor had not produced any tangible evidence in proof of particular 9. Further, I accept the submission of the defendant that, on the evidence before the Court, there could have been no reasonable expectation that the service of Richardson Reports 1 and 2 could have led to the expenditure of time and costs that then followed from the prosecutor’s exploration of a model concept FOPS.

7. [93]

   As to particular 11, little attention was devoted by the prosecutor to this issue. I accept the submission of the defendant (at [85] above) that no aspect of the defendant’s case, in this respect, represented disentitling conduct for the reasons there given.

8. [94]

   Further, at a broader level, I reject the submission that the defendant conducted its defence in a way that unreasonably prolonged the proceedings. I have earlier dealt with the provision of Mr Richardson’s reports. The adjournment which followed was a product of the prosecutor not having available expert evidence in support of a case on energy absorbing FOPS at that time. I do not consider the cross-examination by Mr D A Buchanan SC in the circumstances of the matter to have been unnecessary or prolix or the tender of a large amount of documentary material to be unwarranted. It is true that the Court did admit some material as provisionally relevant but, when considered in the light of the entirety of the issues raised on the trial, the material was relevant and often featured in the judgment of the Court.

9. [95]

   To paraphrase the submission of the defendant, the allegation of a failure to take certain measures to ensure safety were technically complex, disparate and lengthy, such as the PLC programming issue, all of which were reflected in the case properly mounted by the defendant. The historical and operational considerations and events that led to the incident in evidence were all important matters. The defendant is right to point to the fact that it took the prosecutor three years to have an expert identify the flaw in a programmable logic that enabled the incident to occur.

10. [96]

    Finally, and without deciding the issue, I have serious reservations as to the contentions of the prosecutor regarding the application of Latoudis in the context of these summary criminal proceedings for the following reasons:

    1. (1)

       The proposition significantly understates and appears to overlook the relationship between the duties imposed upon an employer under s 8 (in this case, s 8(2)) of the OHS Act and the statutory defence. This is vividly exposed by the following passages of the judgment of the plurality in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 at [18]-[19].

    2. (2)

       Whilst it is not entirely clear, it would appear the prosecutor sought, to an extent, to distinguish Latoudis, and sought to make that proposition good for all OHS cases (although such cases are now exhausted), rather than confining the contention to the particular facts and circumstances of this case. Both the absolute nature of the duties and experience of the prosecutions under the OHS Act, which are ordinarily only successful by means of the establishment of a statutory defence, must result in the contention advanced by the prosecutor, if accepted, effectively rendering nugatory the discretion to award costs to a successful defendant in OHS proceedings.

    3. (3)

       The immediately preceding consideration sits ill with the exclusion of proceedings under the OHS Act from the operation of s 257D of the Criminal Procedure Act. This has greater significant in the light of the fact that s 257D emerged in the aftermath of Latoudis.

    4. (4)

       The defendant is correct to submit that there is a real tension between the prosecutor’s contentions, in this respect, and the ratio of Latoudis, namely, a successful defendant in summary proceedings ordinarily has a reasonable expectation of obtaining an order for the payment of his or her costs on the basis that it is just and reasonable that a prosecution reimburse him or her for liability for costs which have been incurred in defending the prosecution. That proposition gains greater force when it is understood that the reasoning of the High Court in Latoudis, in that respect, hinged upon the principle that it is just and reasonable to indemnify defendants for the costs to which they were exposed in defending an unsuccessful prosecution: Latoudis at 542 (per Mason CJ), 565 (per Toohey J) and 569 (per McHugh J). As Mason CJ observed (at 542):

    5. (5)

       It is true that under the OHS Act the defendant bore an onus to make out a statutory defence and the prosecutor will often not know the nature of the defence until the close of the prosecutor’s case, absent orders made in the summary proceedings to expose the defendant’s case (although, in these matters, the prosecutor was aware of the defendant’s case with respect to FOPS before the close of its case in this matter).

    6. (6)

       However, this apparent distinction has less force upon closer examination. First, the prosecutor has an option when confronted with a defence to contest the defence or accept its viability with respect to a particular of a charge. Secondly, in this case, a considerable proportion of the expenditure of time and costs in the prosecutor’s case was spent not only on making out a defence but on the prosecutor’s case as to liability. Thirdly, and subject to orders made under Pt 5 of Ch 4 of the Criminal Procedure Act, the prosecutor in ordinary summary criminal proceedings will not necessarily know the case for the defendant prior to the defendant opening its case. This would appear to be the case in relation to the third unsuccessful information in Latoudis.

CONCLUSION

1. [97]

   In all the circumstances, the defendant should have its costs of the proceedings on an ordinary basis.

DIRECTION

1. [98]

   The defendant shall bring in short minutes of order reflecting this judgment within 7 days of the publication of this judgment.