WorkCover Authority of NSW (Insp Carmody) v Develco Projects Pty Ltd [2001] NSWIRComm 246

WorkCover Authority of NSW (Insp Carmody) v Develco Projects Pty Ltd [2001] NSWIRComm 246

Costs were awarded to the defendant on a party and party basis because the prosecution failed to prove a fundamental element (that the defendant was the employer) and did not conduct adequate inquiries. However, there was insufficient evidence of unreasonable conduct by the prosecutor to warrant indemnity costs; the prosecution acted properly once notified of the employer issue.

Jurisdiction
Australia
Judgment Date
12 October 2001
Procedural Posture
Prosecution / Application for Costs After Dismissal of Charge
Outcome
Application for costs granted in part; prosecution to pay defendant's costs on a party and party basis.
Legal Topics
['costs' 'occupational Health and Safety' 'party and Party Costs' 'indemnity Costs' 'employer Definition']
['industrial Law' 'criminal Law'] ['costs' 'occupational Health and Safety' 'party and Party Costs' 'indemnity Costs' 'employer Definition']

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Procedural Posture

Prosecution / Application for Costs After Dismissal of Charge

Legal Issues

  1. 1 ["Whether the defendant is entitled to indemnity costs after the dismissal of a prosecution for breach of s16(1) of the Occupational Health and Safety Act 1983; whether the prosecutor's conduct was unreasonable to justify indemnity costs; whether costs should be awarded at all and if so, on what basis"]

Ratio Decidendi

Costs were awarded to the defendant on a party and party basis because the prosecution failed to prove a fundamental element (that the defendant was the employer) and did not conduct adequate inquiries. However, there was insufficient evidence of unreasonable conduct by the prosecutor to warrant indemnity costs; the prosecution acted properly once notified of the employer issue.

Court Disposition

Application for costs granted in part; prosecution to pay defendant's costs on a party and party basis.

Orders

  • ["Prosecution to pay the defendant's costs on a party and party basis." "Parties to meet and conciliate on the quantification of costs; seek Registrar's assistance if required." 'Leave granted to relist the matter for final quantification if necessary.']