Schloss v Bell[2016] ICQ 17

INDUSTRIAL COURT OF QUEENSLAND

Decision

1. [1]
   On 12 September 2014, the appellant was found guilty of an offence under s 702 of the Petroleum and Gas (Production Safety) Act 2004 (Qld) in that he had failed to comply with safety procedures and obligations under the Safety Management Plan (SMP) for an operating plant to the extent the procedures and obligations applied to him.

2. [2]
   On 24 December 2015 the Court allowed the appeal against his conviction, setting aside the guilty verdict and dismissing the complaint in matter C/2014/43. The respondent's cross-appeal in matter C/2014/44 was also dismissed.

3. [3]
   The appellant having succeeded on the appeal seeks costs of both the proceedings in the Industrial Magistrates Court and in this Court on the cross-appeal.

The Legislation

4. [4]
   The Industrial Relations Act 1999 (the "IR Act") is a grant of power to the Court to award costs on an appeal.  Section 335 of the IR Act provides as follows:

"335 General power to award costs

1. (1)
   The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied -

1. (a)
   the party made the application vexatiously or without reasonable cause; or

2. (b)
   for an application for reinstatement - the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings.

2. (2)
   In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party."

5. [5]
   The relevant statutory provisions dealing with costs under the Justices Act 1886 are set out below:

"158 Costs on dismissal

1. (1)
   When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

2. (2)
   When a complaint is before a Magistrates Court which the court has no jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

158A Exercise of discretion in relation to an award of costs

3. (1)
   Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.

3. (2)
   In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example -

158B Costs for division

3. (1)
   In deciding the costs that are just and reasonable for this division, the justices may award costs only - 

1. (a)
   for an item allowed for this division under a scale of costs prescribed under a regulation; and

2. (b)
   up to the amount allowed for the item under the scale.

3. (2)
   However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. (emphasis added)

159 The sum allowed for costs to be specified in the conviction or order

159 The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction."

Power to award costs in the Industrial Magistrates Court

6. [6]
   The respondent contends that under s 335(1)(a) of the IR Act the Court may, on appeal, only order a party to pay costs incurred by another party if satisfied that the party made the application vexatiously or without reasonable cause.  As a consequence, the appellant does not have an entitlement to costs below under s 335(1)(a) of the IR Act.

7. [7]
   It is submitted by the respondent that any power to grant costs in the Industrial Magistrates Court proceedings must therefore be derived from s 158 of the Justices Act 1886.

8. [8]
   The respondent argues that the costs to be awarded to a defendant under s 158 of the Justices Act 1886 should be determined at the time of the dismissal of the complaint.  Therefore, the Court having ordered the dismissal of the complaint by its written decision on 24 December 2015 and entry onto the court record is now beyond power and unable to make an order for costs in the Industrial Magistrates Court pursuant to s 158(1) of the Justices Act 1886.  The respondent relies on Bell v Carter; Ex Parte Bell^[1] ("Bell v Carter") to support their argument.

9. [9]
   Bell v Carter involved the respondent executing a deed which precluded him from seeking a costs order upon the dismissal of the charges against him.  The magistrate dismissed the charge against the respondent and he subsequently sought a costs order.  The magistrate endorsed the bench charge sheet dismissing the charge and adjourned costs or the quantum of costs to a later date.  McPherson, Davies JJA and Thomas J in a joint judgment held:

"If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the question of costs."

10. [10]
    It would appear that the only decision which has followed Bell v Carter is a decision of Robin QC DCJ in Morley v Senewirantne & Anor.^[2]  His Honour stated:

"The main issue in this appeal brought by the complainant under s 222 of the Justices Act 1886 arises from the failure of another Magistrate and some (if not all) counsel to have in mind Bell v Carter at the vital moment in the Magistrates Court at Holland Park on 20 September 2007, notwithstanding that they were aware of the case from previous experience. The Magistrate here, when counsel for the parties who were going to have to pay costs took the point, accepted that he had made an error and that he was functus officio, without any jurisdiction to make an order about costs. No submission was made to the contrary. His Honour stated that the matter would have to be rectified on appeal."

11. [11]
    In Gibson v Canniffe; Kidd v Baragan; Slabon v Moore^[3] Devereaux SC ADCJ 24 December 2008 took a different approach to the effect of s 159 of the Justices Act 1886 when he wrote:

"…one may argue that the chief purpose of s 159 is to obtain the certainty brought about by costs being specified and that the emphasis placed by the court on the coincidence of the order for costs and the order, say, of dismissal, was misplaced. The remaining words of the section merely refer back to the language of ss 157 and 158 that the costs be ordered "by" the conviction or order or "by" the order of dismissal. A better view of the practical effect of s 159 may be that while a court is entertaining an application for costs the "formal dismissal" is thereby deferred and the order is yet imperfect."

12. [12]
    It was submitted by the appellant that the power under the Justices Act 1886 and the decision of Bell v Carter relate to the power of justices and not the power of this Court on upholding an appeal and determining what should occur to the costs below.

13. [13]
    The jurisdiction and powers of the Industrial Court are conferred by Division 3 of Part 1 of Chapter 8 of the IR Act.  Section 248 relevantly provides:

"248 Court’s jurisdiction

(1) The court may -

1. (a)
   perform all functions and exercise all powers prescribed by the court by this or another Act; and

...

5. (e)
   if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—

(i) the ... magistrates exercise their jurisdictions according to law;

(ii) the ... magistrates do not exceed their jurisdictions.

(2) In proceedings, the court may -

1. (a)
   make the decisions it considers appropriate, irrespective of specific relief sought by a party; and

2. (b)
   give directions about the hearing of a matter ..."

14. [14]
    The appeal to the Industrial Court from the orders of the Industrial Magistrate was brought under s 341 of the IR Act.  Section 341 relevantly provides:

"341 Appeal from commission, magistrate or registrar

(1)  ...

3. (2)
   A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.

3. (3)
   The court may -

1. (a)
   dismiss the appeal; or

2. (b)
   allow the appeal, set aside the decision and substitute another decision; or

3. (c)
   allow the appeal and amend the decision; or

4. (d)
   allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law."

15. [15]
    In Harrison v President of the Industrial Court of Queensland & Ors^[4] Justices Act 1886ckson J (with whom McMurdo P and Morrison JA agreed) held:

"A critical consideration is that the Industrial Court exercising appellate jurisdiction is not exercising the original jurisdiction of the Industrial Magistrate. On appeal, the statute conferring the right of appeal gives the Industrial Court power to decide whether the Industrial Magistrate was right or wrong and to make orders accordingly…

…

If the Industrial Court had decided that the Industrial Magistrate had made an error … it would have proceeded to consider for itself the consequences of that error in terms of the orders it should make under s 341(3)(b) and (d) of the Industrial Relations Act 1999 (Qld), still exercising the appellate jurisdiction of the Industrial Court.

At no point would the Industrial Court have exercised the original jurisdiction of the Industrial Magistrate."

Power to amend order dismissing complaint

16. [16]
    Even accepting the submission of the respondent as the effect of the decision in Bell v Carter, the Court has a power under s 329(e) of the IR Act to "correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal."  This provision is otherwise known as the "slip rule".

17. [17]
    The power to amend under s 329(e) of the IR Act was discussed by Hall P in Ray and Sue Boundy Pty Ltd v Daniel Paul Gwydir:^[5]

"Ray and Sue Boundy Pty Ltd v Daniel Paul Gwydir involved an appeal from the dismissal by the Industrial Magistrate at Townsville of two complaints brought by an Industrial Inspector pursuant to s. 423 of the Workplace Relations Act 1997.  The then President of the Industrial Court dismissed the appeal and the respondent sought an order that the appellant pay the respondent’s costs of and incidental to the appeals.  His Honour’s judgment is entirely silent on the matter of costs.  The ordinary practice at the time, in conformity with the decision in Toowoomba City Council v. Schaumberg was that costs should follow the event.  Hall P concluded that if his Honour had directed his mind to the question of costs, he would have awarded costs against the appellant Industrial Inspector.  He wrote:

'In jurisdictions with a "slip-rule" incidental matters such as costs which can accidentally be overlooked are commonly revisited, compare Storey and Keers Pty Ltd v. Johnstone (1987) 9 NSWLR 446 at 452.  The courts have long since moved from correcting Ministerial errors or errors in expressing the real intention of the Court to corrections intended to express an intention which the Court would certainly have had if eg it adverted to the matter, compare Phillips v. Phillips [1966] QWN 19.  There is no “slip-rule” in the Industrial Court Rules 1997.  However, s. 344(e) of the Workplace Relations Act 1997 authorises the Industrial Court to correct, amend or waive an error, defect or irregularity in the proceeding, whether substantive or formal.  Section 329(e) of the Industrial Relations Act 1999 is in the same terms.  In my view s. 344(e) vested and s. 329(e) vests ample power to make the correction now sought.'"

18. [18]
    In addition, r 95 of the Industrial Relations (Tribunals) Rules 2011 provides that:

"(1) The court, commission or registrar may correct an error in an industrial instrument, order or direction."

19. [19]
    "Error" is defined to mean "a clerical mistake, misnomer, inaccurate description, omission or other manifest defect or irregularity."

20. [20]
    In Storey & Keers Pty Ltd v Johnstone,^[6] McHugh JA adopted the following passage from the speech of Lord Herschell in Hatton v Harris^[7] concerning the test to be satisfied when making an order under the slip rule:

"I cannot doubt that the correction would at once have been made if the matter had been drawn to the attention of the judge who made the decree."

21. [21]
    A similar approach was adopted by Lockhart J (with whom Black CJ agreed) in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd:^[8]

"An exercise of the power of the court under the slip rule is ultimately to avoid injustice. This obvious purpose of the slip rule underlies a number of decisions of judges of this court and of other courts."

22. [22]
    In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd^[9] Toohey J said:

"In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced."

23. [23]
    Had the effect of Bell v Carter been adverted to in this Court in the written or oral submissions I am satisfied the orders given would have been expressed in such a way so as to avoid the consequences which may flow by virtue of s 159 of the Justices Act 1886.

24. [24]
    In L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2)^[10] an application was made under O. 29, r. 11 of the High Court Rules.  The High Court Rules provided that: "A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons."  Neither the notice of appeal to the Court of Appeal nor the notice of appeal to the High Court sought an order providing for the payment of interest, in the event the appeal was upheld.  The matter was not adverted to in argument on the appeal to the High Court nor in the reasons for judgment published by the justices who comprised the Court.  In the joint judgment of Mason ACJ, Wilson and Deane JJ the court held:

"We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it."

25. [25]
    It is clear from the written decision that it was the intention of the Court to hear submissions from the parties with respect to the costs of the proceedings in the Industrial Magistrates Court.

26. [26]
    The Court has a power to set aside an order, although I acknowledge that such a power should be exercised cautiously^[11] and sparingly.^[12]

27. [27]
    In my view, and out of an abundance of caution, I think this is an appropriate occasion upon which the Court should exercise its power under s 329(e) of the IR Act to set aside the order for dismissal made on 24 December 2015.  Justice requires that the judgment be amended accordingly so as to properly reflect the intent of the Court.

Costs in the Industrial Magistrates Court

28. [28]
    The power to award costs in respect of a summary hearing in the Industrial Magistrates Court are found in ss 158 and 158A of the Justices Act 1886.

29. [29]
    In Latoudis v Casey,^[13] Mason CJ, McHugh and Toohey JJ wrote:

"…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. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor."

30. [30]
    In response to Latoudis v Casey, the Justices Act 1886 was amended to insert s 158A which placed a fetter on s 158.

31. [31]
    McPherson JA in MacPherson v Commissioner of Taxation^[14] in dealing with s 158A wrote:

"In making his determination as to costs, the magistrate applied s.158A of the Justices Act (the Queensland Act). That section was enacted shortly after the decision of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534, in which their Honours reviewed the principles governing the discretion to award costs in respect of unsuccessful proceedings for an offence that was conducted summarily. On the appeal before us, s.158A was, on both sides, accepted as being a direct and speedy legislative response by State Parliament to the decision of the majority of their Honours in that case. The object evidently was to replace the principles adopted in Latoudis v. Casey with a series of statutory provisions amounting to a virtual codification of the leading factors to be considered in deciding whether costs should be awarded against a police officer or a public officer whose complaint is dismissed by justices."

32. [32]
    Section 158 of the Justices Act 1886 (Qld) provides for the general power to award "just and reasonable" costs in favour of a defendant when a complaint is dismissed.

33. [33]
    Section 158A(1) fetters the discretion in relation to a public officer such that a costs order may be made "only if the justices are satisfied that it is proper that the order for costs should be made".  In determining whether it is proper to make the costs order, s 158(2) provides that the trial magistrate "must" take into account "all the relevant circumstances".

34. [34]
    Davies JA spoke similarly about the limitation on the discretion in s 158A in Murray v Radford^[15] where his Honour said:

"There is no doubt that s 158A applied to this case because the complainant was a police officer. Under that section despite s 158(1) the magistrate may make a costs order such as the applicant says should have been made only if he is satisfied that it is proper that such an order should be made; and in so deciding he is obliged to take into account all relevant circumstances including but not limited to those enumerated in subsection (2). Section 158A is thus, plainly, a limitation on the discretion which s 158 permits to order costs against a complainant."

35. [35]
    The respondent submits that the prosecution in the Industrial Magistrates Court could not be characterised as difficult, complex or important in the relevant sense in order to justify an uplift of costs pursuant to s 158B(2) of the Justices Act 1886.  I disagree.

36. [36]
    In supporting the contention that the case was of "special difficulty, complexity or importance", the appellant made the following submissions:

37. [37]
    Farr SC DCJ wrote in Cullinane v McCahon:^[16]

"That submission ignores the actual words used in ss 158B and 232A of the Justices Act, namely "just and reasonable having regard to the special difficulty, complexity or importance of the case". The adjective "special" does not apply to, or restrict, the words "just and reasonable". They apply to "difficulty, complexity or importance". Properly construed, the discretion to award a higher amount for costs as provided for in the statutory provisions, is enlivened where: (a) special difficulty, complexity or importance exists; and (b) it is just and reasonable to make a higher award having regard to the identified special difficulty, complexity or importance."

38. [38]
    In Senior Constable Sheehan v Leo,^[17] Robertson DCJ found a matter must be more than "unique":

"Although her Honour’s reasons referred to above are somewhat equivocal about the issue of "special difficulty", I agree with the appellant that in stating that the s 27 issue takes “it somewhat out of the realm of the ordinary”, her Honour misdirected herself as to the threshold that was required by reference to authority. It may be unusual for a s 27 defence to be raised in the Magistrates Court, but, in this case the issue was greatly simplified by the approach of the parties. The trial lasted less than a day. The prosecution evidence took 9 minutes. Dr Georgious gave evidence for 59 minutes most of which was in cross-examination. There were no objectively especially difficult aspects of the case. "Unusual" is not synonymous with "difficulty" and, in any event, this was not a case that involved special difficulty, including having regard to the reversal of onus issue that does arise from time to time …"

39. [39]
    It was submitted by the appellant that the consequences for the appellant were significant in that a conviction for non-compliance with work safety obligations in the Petroleum and Gas industry was likely to destroy or significantly affect the appellant's ability to hold or obtain future employment in the industry.

40. [40]
    In Whitby v Stockair Pty Ltd & Anor,^[18] Farr SC DCJ had to consider a conclusion by the Magistrate that the case against each defendant was of special importance because the defendants' reputations "were on the line" and "at stake" and that a finding of guilt would have caused "immeasurable damage" to their reputations.  Farr SC DCJ affirmed his earlier decision in Cullinane v McCahon where he said:

"... I accept that this case was important to the appellant, as no doubt every criminal case is to every defendant. To invoke special importance however, the case must involve more than the charge merely relating to a defendant in his/her professional capacity. 'Special importance' is clearly a reference to the importance of the case generally, in terms of questions of law or public interest (this list is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her."

41. [41]
    To assist the Court in determining the phrase "special difficulty, complexity or importance", the Court was referred to the often cited case of Interclean Industrial Services Ltd v Auckland Regional Council^[19] ("Interclean").  In that matter, the Auckland Regional Council sought higher costs after Interclean Industrial Services Ltd pleaded guilty to two criminal charges under the Resource Management Act 1991.  As with the present case, an award of costs in excess of scale was sought on the basis of "special difficulty, complexity or importance".  On appeal, the High Court held that there was no special difficulty or complexity in the case, the defendant had pleaded guilty and the issues raised by both the prosecution and defence did not go significantly beyond those raised in prosecutions generally.  Randerson J said:

"As observed by Tipping J in T v Collector of Customs (High Court, Christchurch, AP 167/94, 28 February 1995) at p2:

'The use of the word "special" when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him.'"

42. [42]
    I am therefore satisfied that in terms of s 158B(2) of the Justices Act 1886, the matter involved special difficulty, complexity or importance having regard to the facts, the particular factual and legal issues raised and the complexities of the legislation.

43. [43]
    In considering the matters under s 158A(2) of the Justices Act 1886, the only provisions which have relevance to the current matter and which the appellant relies are subparagraphs (b) and (c) of s 158A(2).

44. [44]
    In regard to subparagraphs (b) and (c) of s 158A(2), the appellant submits that:

"(a) for a period going back for well over a year before the trial, the defence had struggled to have the Prosecution articulate and explain precisely what complaint they were bringing pursuant to the breach of what provisions;

…

5. (e)
   the Prosecution had many opportunities pre-trial to properly investigate precisely what obligations arise in what documentation against this Defendant.  In essence, it did this on the run during the trial … All of this meant that a substantial amount of time in the trial was spent on matters that the Prosecution ought have sorted out long before the trial even started; …"^[20]

And

"It emerged during the trial that there were a number of significant matters of which the Prosecution, had it properly investigated the matter, did or ought always have known and what was critical to the prospects of success of the case."^[21]

45. [45]
    Counsel for the respondent accepted during argument that it was appropriate that an award of costs in accordance with the Magistrates Court Scale be awarded.

46. [46]
    For the reasons outlined above, I accept that the matter had "special difficulty, complexity or importance".

Quantum of Costs

47. [47]
    The appellant seeks an award of costs on a non-scale basis in the sum of $596,980.93, submitting that the complexities of the matter justify that reasonable actual costs be allowed.

48. [48]
    In the alternative, adopting the approach taken in Bell and Gordon v Uniman Australia Pty Ltd (No. 4),^[22] the appellant submits that costs in the sum of $395,770.90 be awarded.  The figure is made up of $23,625, being three times the scale, plus senior and junior counsel fees of $350,212.50 and outlays of $21,933.40.

49. [49]
    It was further submitted, in the alternative, that if the Court did not accept the submission that the appellant should recover their "reasonable actual costs" then they ought recover their costs calculated in accordance with Schedule 2 of the Justices Regulation 2004.

50. [50]
    Regulation 18 of the Justices Regulation 2004 provides that the scale of costs for Part 6, Division 8 and Part 9, Division 1 of the Act is contained in Schedule 2.

51. [51]
    Schedule 2 relevantly provides:

"1 Scale sets out amounts up to which costs may be allowed 

This scale sets out -

1. (a)
   the only items for which costs may be allowed for part 6, division 8 and part 9, division 1 of the Act; and

2. (b)
   the amount up to which costs may be allowed for each item.

Note -

A higher amount for costs may be allowed under section 158B(2) or 232A(2) of the Act.

2 Item of costs covers all legal professional work 

An item in part 2 covers all legal professional work, even if the work is done by more than 1 lawyer.

3 Only necessary or proper costs may be allowed 

A cost is to be allowed only to the extent to which -

1. (a)
   incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or

2. (b)
   the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party.

4  Appeal to District Court judge - professional costs are 20% higher than for complaint 

For an appeal to a District Court judge under part 9, division 1 of the Act, the amount up to which costs may be allowed for legal professional work is the amount that may be allowed under part 2, as if the work were for a complaint, increased by 20%.

Part 2 Amounts up to which costs may be allowed for legal professional work

Work for hearing of complaint up to and including day 1  

1. Instructions and preparation for the hearing,

 including attendance on day 1 of the hearing  up to $1500.00 

After day 1  

1. For each day of the hearing after day 1 up to $875.00 

Other court attendances  

2. Court attendance, other than on the hearing

of the complaint      up to $250.00 

5  Disbursements, other than to witness for attending 

Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable."

52. [52]
    The appellant's primary submission seeks an order for costs on an indemnity (solicitor and client) basis.  However, I do not consider it appropriate on this occasion to award costs on that basis.

53. [53]
    In Morley v Senewiratne & Anor,^[23] Robin QC DCJ wrote:

"The appellant, as prosecutor, cannot expect anything like a costs indemnity. Traditional practice precluded costs orders for or against the prosecution. The statutory in-roads are on the basis of a modest scale which imposes a cap. The discretion the court has to exceed that cap must still have regard to it as the starting point. In other words, I think the question comes down to one of by how much should the cap amounts be increased. If distinctions are to be drawn between prosecution and defence, I would expect the court to be more parsimonious in awarding costs in favour of the prosecutor, at least where he or she is or represents a public authority, such as a local government, which bears the responsibility of enforcing State and local laws."

54. [54]
    If a court is contemplating the awarding of costs over and above the Magistrates Court Scale then, in determining what is just and reasonable, the scale must be used as a guide in the calculation of the quantum of costs above the scale.

55. [55]
    In Washbourne v State Energy Commission of Western Australia^[24] Ipp J wrote:

"The starting point is that the amount of the costs are to be in accordance with the scale prescribed. If however the special difficulty, complexity, or importance of the case leads the court to order higher costs than those laid down in the scale, the court is empowered to order costs in excess of the amount for scale items; nevertheless, the scale items are to be the basic guidelines in determining the amount of costs to be ordered.

The amounts reflected in the scale are substantially lower than the costs set out in the Supreme Court Costs scale. Plainly, the intention of the legislature is that the costs awarded under the Official Prosecutions (Defendant's Costs) Act are to be lower, generally, than the costs awarded in a Supreme Court action. The court, in ordering costs under s 5(5) therefore does not have a discretion limited only by considerations of reasonableness. Even if costs are awarded in excess of the scale, regard must be had to the scale as a guideline."

56. [56]
    The exercise of the discretion in s 158 of the Justices Act 1886 is clearly fettered.  First, by the words "just and reasonable" in s 158(1); secondly, by the requirement in s 158A that in awarding costs against a public officer the justices must be satisfied that it is "proper" that an award for costs be made; and thirdly, in s 158B costs in excess of scale can only be awarded in cases of "special difficulty, complexity or importance".

57. [57]
    In calculating the quantum of the costs, I have had particular reference to the affidavit of Brett Stephen Elgar.

58. [58]
    In determining the quantum of the costs of the prosecution, I have considered the approach adopted by Shanahan SC DCJ in Hickey v Crime and Misconduct Commission.^[25]  His Honour wrote:

"The respondent submits that the scale should be used as a guide in arriving at a quantum above the scale (Washburn v State Energy Commission (WA) 1992 8 WAR 188 at 193, 194; Durrant v Gardner [2000] QDC 198, McGill DCJ, 23 June 2000 at [46]). It is submitted that the amount awarded should be a small multiple of that scale.

To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind. No authorities have been placed before me where solicitor/client costs or indemnity costs have been awarded in these circumstances.

The costs to be awarded must be “just” in relation to the appeal and “just and reasonable” in relation to the summary trial. The amounts to be awarded must be made bearing in mind the policy of the legislation. The scale in the regulation is a clear indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear."

59. [59]
    Shanahan SC DCJ concluded that it was just and reasonable to award costs based on the daily rate for senior counsel as provided by the Federal Court of Australia's National Guide to Counsel Fees^[26] but also to award costs for the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004.  In doing so, his Honour concluded that a multiple of three times that scale would be appropriate.

60. [60]
    I accept, having regard to the nature and complexity of the summary trial that it was appropriate to brief senior counsel.  The respondent was equally represented by senior counsel.

61. [61]
    I also accept it is common practice when determining costs in the Magistrates Court to adopt an approach of a multiple of three times scale for a solicitor's preparation plus the costs of senior counsel and any allowed outlays.^[27]

62. [62]
    I respectfully adopt the reasoning and approach of Shanahan SC DCJ and conclude that it would be just and reasonable to award costs on the rate for senior counsel as provided for in the Federal Court of Australia's National Guide to Counsel Fees.  I also consider it appropriate to award costs of the solicitor's preparation under the scale set by the Justices Regulation 2004 but on a multiple of three times the scale.

63. [63]
    The respondent made no submissions in relation to the disbursements of $21,933.40.  I am satisfied that they have been reasonably incurred.^[28]

64. [64]
    I propose making a lump sum award.  The calculation of the costs of the prosecution to achieve a just and reasonable lump sum is as follows:

TOTAL:       $81,208.40

Costs of the Cross Appeal

65. [65]
    The appellant seeks the costs of successfully defending the cross-appeal.

66. [66]
    The ground of appeal for the cross appeal was that the learned Industrial Magistrate erred in her determination that the Defendant's breach of s 702 of the Petroleum and Gas (Production and Safety) Act 2004 did not cause bodily harm to Gavin James Vieritz.

67. [67]
    The omission said to constitute the offence was the failure of Mr Schloss to ensure that Mr Vieritz considered and conducted a Job Hazard Analysis (JHA).  It was, on the cross-appellant's case, not necessary that the omission be the sole cause of the injury but rather the question is whether the omission was a "substantial or significant cause" viewed in a common-sense and practical way. The omission, it was argued, resulted in an increased risk of injury and that risk eventuated with the cross-respondent's conducted said to have materially contributed to the injury that was suffered.

68. [68]
    The cross-respondent argued that the test of causation is not whether there is an increased risk of injury being caused, but rather, whether it was so caused.

69. [69]
    It is not contended that the cross-appeal was made vexatiously.  Rather, it is the contention of the cross-respondent that the cross-appeal was made "without reasonable cause".

70. [70]
    Her Honour concluded that:

 "As a result of Mr Vieritz's evidence, his experience, and the actions he took on the day of the incident to isolate the separator, I am not satisfied that the bodily injury sustained by Mr Vieritz was caused by the 'act or omission that constitutes the offence'.  I therefore find that the prosecution has not proved the aggravating circumstances provided by Section 732(3)(d) of the Act to the required standard and the increase in the maximum penalty is not activated."^[29]

71. [71]
    Having considered the evidence, it was open for her Honour to come to the conclusion that she did.  It is not the submission of the cross-appellant that there was insufficient or no evidence to support the conclusion reached by her Honour.  Rather, that the cross-appellant points to other evidence which might support a different conclusion. No appellable error has been disclosed.

72. [72]
    In MIM Holdings Ltd v AMWU,^[30] his Honour President Hall held:

"As a matter of first impression, the purpose of s 335 seems to be to spare parties the rule of having to pay the costs of an opposing party whilst providing a measure of protection to parties defending proceedings which have been instituted vexatiously or without cause…I am reluctant to construe the provisions in such a way that a successful appellant (respondent) would always, subject to the (proper) exercise of discretion, recover costs of the appeal and the application whilst a successful appellant (applicant) would never do so. It seems to me to be more likely that s 335 (1) (a) is aimed at the case which was objectively recognisable as one which could not succeed at the time when the application was made."

73. [73]
    The circumstance that an appeal is wholly unsuccessful does not in itself demonstrate that it was launched without "reasonable cause".  An appeal should not be characterised as an appeal having no objective prospect of success unless, at the time when the appeal was commenced, it was readily recognisable as doomed to failure.^[31]

74. [74]
    In Bow Park Pty Ltd v Williams,^[32] Hall P said:

"The case made was that the appeal was brought "without reasonable cause" because it had no objective prospect of success. With respect, there is too much of the clarity of vision which flows from the advantage of hindsight in that submission. Whilst the appeal was entirely unsuccessful and the appellant's arguments were wholly demolished, the demolition required significant argument by the respondent and mature consideration by the Court. The appellant's case was not one immediately recognisable as doomed to failure. That is sufficient to determine the application for costs."  

75. [75]
    I am not satisfied that the respondent has acted "vexatiously or without reasonable cause" in bringing the cross-appeal.  In those circumstances, the power to award costs in favour of the appellant has not been enlivened.

76. [76]
    I invite the parties to make submissions as to the appropriate orders which should be made.