1. Ordinarily at the conclusion of proceedings for breach of the Work Health and Safety Act 2011 (NSW) the ‘usual’ order as to costs will be made: namely that that the unsuccessful party pay the costs of the successful party as agreed or as assessed.
2. Occasionally, however, questions arise as to whether a departure from the usual order is justified.
3. This paper seeks to summarise the applicable principles, and provide some examples of recent cases where an order other than the usual order has been made.
4. Part 5, Division 4 of the Criminal Procedure Act 1986 (NSW) governs the award of costs in criminal proceedings in New South Wales.
5. Section 257B (When costs may be awarded to prosecutor) provides the court with a discretionary power to order that an accused person pay the prosecutor’s costs upon a conviction or order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
6. Section 257C (When costs may be awarded to accused person) provides a corresponding discretionary power to the Court to order that the prosecutor pay costs to the registrar, for payment to the accused person “if the matter is dismissed or withdrawn” including where the proceedings are found to be invalid.
7. For most criminal prosecutions, pursuant to s257D, the power to award costs against the prosecutor only arises where the accused can also show some additional exceptional circumstance such as: the investigation was unreasonable or improper; or the proceedings were initiated without reasonable cause. However that additional limitation does not apply to proceedings for an offence against the Work Health and Safety Act 2011 (NSW) or the regulations under that Act. Accordingly, the discretionary power to award costs to an accused who succeeds at trial in WHS matters is not limited, and the usual principles (discussed below) apply.