SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334

SafeWork NSW v AKA Civil Australia Pty Ltd (No. 2) [2019] NSWDC 334

Because the prosecutor's amendment of the Summons and the wording that prompted earlier requests for particulars caused costs to be thrown away, the prosecutor should pay the defendant's costs of those particular requests. However, the defendant failed on its separate ground concerning identification of other persons, so the competing costs considerations on the motion cancelled each other out and each party should otherwise bear its own costs. There was no utility in deferring the costs orders until the end of the proceedings.

Jurisdiction
Australia
Judgment Date
19 July 2019
Procedural Posture
Criminal Prosecution / Costs Determination on the Papers Following Dismissal of the Defendant's Interlocutory Notice of Motion Filed on 11 March 2019
Outcome
Costs orders made; prosecutor ordered to pay limited costs of requests for further and better particulars, with each party otherwise to bear its own costs of the motion and costs issue.
Legal Topics
['costs of Interlocutory Proceedings' 'costs Thrown Away by Amendment' 'further and Better Particulars' 'amendment of Summons']
['criminal Procedure' 'work Health and Safety' 'costs'] ['costs of Interlocutory Proceedings' 'costs Thrown Away by Amendment' 'further and Better Particulars' 'amendment of Summons']

Case Brief

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Procedural Posture

Criminal Prosecution / Costs Determination on the Papers Following Dismissal of the Defendant's Interlocutory Notice of Motion Filed on 11 March 2019

Legal Issues

  1. 1 ['Whether costs of interlocutory proceedings should be awarded immediately or deferred until the conclusion of the prosecution.' 'Whether the prosecutor should pay costs thrown away by amendment of the Summons and earlier requests for further and better particulars.' "Whether costs should follow the event on the defendant's unsuccessful ground concerning identification of other persons put at risk."]

Ratio Decidendi

Because the prosecutor's amendment of the Summons and the wording that prompted earlier requests for particulars caused costs to be thrown away, the prosecutor should pay the defendant's costs of those particular requests. However, the defendant failed on its separate ground concerning identification of other persons, so the competing costs considerations on the motion cancelled each other out and each party should otherwise bear its own costs. There was no utility in deferring the costs orders until the end of the proceedings.

Court Disposition

Costs orders made; prosecutor ordered to pay limited costs of requests for further and better particulars, with each party otherwise to bear its own costs of the motion and costs issue.

Orders

  • ["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...