WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40

WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) [2003] NSWIRComm 40

The defendants' central challenge was to the validity of the initiating process and the proceedings, and that challenge had failed in the reference judgment. The summonses did not have the legal effect of requiring appearance, but the proceedings were nevertheless validly commenced. Costs of the s 196 reference were governed by the ordinary costs powers of the Commission, and there was no basis to depart from the usual approach that costs follow the event. The notices of motion therefore had no further utility and were dismissed, with the defendants ordered to pay the prosecutor's costs.

Jurisdiction
Australia
Judgment Date
09 May 2003
Procedural Posture
Prosecutions Under the Occupational Health and Safety Act 1983 and Reference to the Full Bench on Questions Pursuant to S 196 of the Industrial Relations Act 1996 and S 5 Ae(1) of the Criminal Appeal Act 1912 / Full Bench Judgment on Costs of the Reference, Disposition of Notices of Motion and Costs of the Motions
Outcome
Original costs order for the reference maintained; notices of motion dismissed; defendants ordered to pay the prosecutor's costs of the motions and reference, limited to one set of costs and, absent agreement, borne by the defendants in equal shares.
Legal Topics
['full Bench Reference' 'validity of Summonses' 'commencement of Prosecutions' 'notices of Motion to Strike Out, Stay or Dismiss Summonses' 'costs Orders']
['industrial Relations' 'occupational Health and Safety' 'criminal Procedure' 'costs'] ['full Bench Reference' 'validity of Summonses' 'commencement of Prosecutions' 'notices of Motion to Strike Out, Stay or Dismiss Summonses' 'costs Orders']

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Procedural Posture

Prosecutions Under the Occupational Health and Safety Act 1983 and Reference to the Full Bench on Questions Pursuant to S 196 of the Industrial Relations Act 1996 and S 5 Ae(1) of the Criminal Appeal Act 1912 / Full Bench Judgment on Costs of the Reference, Disposition of Notices of Motion and Costs of the Motions

Legal Issues

  1. 1 ["Whether the original order that the defendants pay the prosecutor's costs of the reference should be altered." 'Whether the notices of motion seeking to strike out, permanently stay or dismiss the summonses should be dismissed.' "Whether the defendants should pay the prosecutor's costs of the notices of motion." 'Whether costs in relation to appeals and references under s 196 are governed by the Criminal Appeal Act 1912 or by the ordinary costs provisions applicable to the Court.']

Ratio Decidendi

The defendants' central challenge was to the validity of the initiating process and the proceedings, and that challenge had failed in the reference judgment. The summonses did not have the legal effect of requiring appearance, but the proceedings were nevertheless validly commenced. Costs of the s 196 reference were governed by the ordinary costs powers of the Commission, and there was no basis to depart from the usual approach that costs follow the event. The notices of motion therefore had no further utility and were dismissed, with the defendants ordered to pay the prosecutor's costs.

Court Disposition

Original costs order for the reference maintained; notices of motion dismissed; defendants ordered to pay the prosecutor's costs of the motions and reference, limited to one set of costs and, absent agreement, borne by the defendants in equal shares.

Orders

  • ["The defendants shall pay the prosecutor's costs of the reference." 'The costs awarded for the reference should be limited to one set of costs which, in the absence of agreement, should be borne by the defendants in equal shares.' 'In Matter Nos IRC 230 to 238 of 2000, the notices of motion are dismissed.' "In...