Insp Benbow v Planada Holdings Pty Ltd (No 2) [2001] NSWIRComm 299 (14 November 2001)

Last Updated: 18 December 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Insp Benbow v Planada Holdings Pty Ltd (No 2) [2001] NSWIRComm 299

FILE NUMBER(S): IRC4099

HEARING DATE(S): 14/11/2001

EX TEMPORE DATE: 14/11/2001

PARTIES:

PROSECUTION:

Inspector Benbow

DEFENDANT:

Planada Holdings Pty Ltd

JUDGMENT OF: Kavanagh J

LEGAL REPRESENTATIVES

Prosecutor:

Solicitors:

Mr G. Henderson

PricewaterhouseCoopers Legal

Defendant:

No appearance

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 2 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN

COURT SESSION

CORAM: KAVANAGH J

Date: Wed 14 November 2001

IRC4099 of 2000

INSPECTOR ELIZABETH BENBOW v PLANADA HOLDINGS PTY LTD

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

EX TEMPORE JUDGMENT

[2001] NSWIRComm 299

1 The Prosecutor makes application under Part 20 rule151(1) of the Industrial Relations Act 1996 for the court to amend paragraph 35 of its judgment in Insp Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 (2 November 2001). Part 20 Rule 151(1) of the Industrial Relations Act 1996 states:

151(1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.

2 The correction relates to the power of the Court to order costs and the form of a proper order.

3 There is no appearance from the defendant. The Prosecutor (his reasons on transcript) has satisfied the court the defendant is on Notice as to this application.

4 I am satisfied I have power under Part 20 rule 151(1) to make the correction to my judgment of 2 November 2001 in accordance with the application.

5 The power of the court to order costs has been considered by Marks J in WorkCover Authority of New South Wales v Capral Aluminium Limited [1999] NSWIRComm 48 (22 February 1998) and by Schmidt J in WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Limited [2001] NSWIRComm 242; and in WorkCover Authority of New South Wales (Inspector Carmody) v Develco Products Pty Limited [2001] NSWIRComm 246 (12 October 2001); Insp Taylor v Fletcher International Exports Pty Ltd (No 2) [2001] NSWIRComm 228 [at 25] (published 29 August 2001).

6 In the latter two matters, this court has examined the effect of the Supreme Court Rules, the Industrial Relations Commission Rules and the authority of Caltex Refining Company Pty Limited v The Maritime Services Board of New South Wales (1995) 36 NSWLR 552, which authority examined a similar provision in relation to costs in the Land and Environment Court Act 1979.

7 In essence, a reading of the combined effect of the Industrial Relations Act 1996, Industrial Relations Act Rules, the Supreme Court Act 1970 and the Supreme Court Rules, this court does not give a general order in relation to costs but must give a specific order determining quantification of costs that are just and reasonable on the evidence.

8 The order made in par 35 of my judgment did not bring this matter back to the court for final orders. I amend the order to add to the last sentence of par 35. The paragraph now reads as amended:

The defendant is to pay the prosecutor's costs to be agreed or assessed and the matter is to be brought before the court for consideration and final orders as to costs.

LAST UPDATED: 22/11/2001