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[2025] NSWCA 147
respondent. The summons for judicial review was dismissed, and the DPP was ordered to pay Peapell’s costs assessed at $140.
The Court of Appeal explained that a self-represented person can recover some actual litigation disbursements, but cannot claim the value of their own time or expenses that a lawyer could not recover on a party/party basis. Printing is ordinarily recoverable; travel and accommodation may be recoverable if they are witness expenses, but not simply because the person travelled to court to represent themselves. The evidence did not show what Peapell’s expenses related to or whether they arose in the Local Court or District Court. Because a successful DPP challenge would have meant another hearing, and the Crown had accepted the expenses were in principle recoverable, the Court dismissed the summons without finally resolving every jurisdictional question.
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2,459 words · generated 06/10/2026
The case concerned the costs order made after Aaron Peapell successfully appealed a Local Court conviction. He had been charged under s 4(1)(b) of the (NSW), on an allegation that he attempted to climb onto a complainant’s balcony shortly after midnight on 9 January 2022 [5]. He denied the offending and relied on evidence from computer chat and viewing logs. The Local Court convicted him and fined him $330 [8]-[9].
18 cited instruments linked from this judgment.
Peapell appealed under s 13(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). He represented himself. On 6 August 2024, the District Court allowed the appeal and quashed the conviction. The prosecutor accepted at the appeal hearing that there was a reasonable possibility Peapell’s denials were true [10]-[11].
The District Court then considered costs. Its order required the Crown to pay Peapell $11,200. The primary judge allowed printing, accommodation, food, taxis, flights and fuel, but not the claimed loss of contracts [19]. The DPP sought judicial review, arguing that the District Court had no jurisdiction under either the Criminal Procedure Act 1986 (NSW) (CP Act) or the CAR Act to award the disputed expenses [21].
The Court of Appeal dismissed the summons. It did not conclude that every item in the $11,200 order was necessarily recoverable. Rather, the evidence did not allow it to determine what some expenses related to, or whether they related to the Local Court case or the District Court appeal [39]. The Court considered that the matter would have to return to the District Court for further consideration if the DPP obtained relief. It declined to impose that further hearing on Peapell, having regard to the Crown’s position before the primary judge and the relatively limited amount in dispute [40].
The Court also ordered the DPP to pay Peapell $140 for the cost of producing an authorities bundle in the Court of Appeal [41]-[42].
The judgment starts from the compensatory purpose of costs. Referring to Cachia v Hanes, Ball JA states that costs indemnify a litigant for costs actually incurred. They do not compensate for another disadvantage or inconvenience associated with litigation [22]. That distinction matters especially for a self-represented litigant. Such a person cannot claim remuneration for their own time spent preparing or conducting a case, or automatically recover expenses merely because the litigation caused them to be incurred [22]-[23].
The statutory route for costs in the Local Court is s 213 of the CP Act. Section 211 defines “professional costs” as costs, other than court costs, relating to professional expenses and disbursements, including witness expenses [14]-[15]. Ball JA reads “professional” as qualifying both expenses and disbursements. A disbursement is not recoverable merely because the litigant spent money. It must be of a kind that a professional representative would have incurred and that would have been recoverable on a party/party basis [25]-[27].
This construction builds on Wang v Farkas. The judgment explains that “professional costs” exclude costs a non-professional litigant incurs by acting for themselves, including the value of their own time. Under Wang, an award of a sum that the statute does not permit can amount to jurisdictional error because it involves exercising a power that does not exist [24], [26]. Ball JA says the same reasoning applies to an award against a prosecutor under s 213 [24].
The costs power for the District Court appeal is different. Section 28(3) of the CAR Act empowers the District Court to make such costs order as it thinks just, subject to s 70. The Court treated “costs” in this context as bearing the established meaning explained in Cachia, including the principle that costs reimburse costs incurred rather than compensate for other loss [18], [28]. But Ball JA did not decide whether an incorrect application of those principles under s 28(3) would necessarily be jurisdictional error. Unlike s 213, s 28(3) is expressed as a broad discretion, and the judgment identifies no statutory language making every legal error jurisdictional [29].
The nature of the claimed expense also matters. Printing costs are ordinarily recoverable where incurred in connection with the litigation and recoverable if a solicitor had acted [33]. Travel and accommodation are more nuanced. Witness expenses can include travel and accommodation, and Ball JA saw no reason why a self-represented accused who is also a witness should be treated differently [35]. By contrast, a self-represented person’s ordinary travel to and from court to appear for themselves is not a professional disbursement under s 213, and is not properly treated as “costs” under s 28(3) [36].
The difficulty was application to the actual $11,200. The record before the Court of Appeal did not identify what Peapell’s travel and accommodation costs were for, nor whether they related to the Local Court proceedings, the appeal, or witness attendance [39]. The Court therefore could not decide which amounts were recoverable under either statutory route.
The final reason for dismissal was discretionary, not a conclusion that the costs order had been fully validated on its merits. If the DPP succeeded, the matter would need to return to the District Court for a further hearing. The Crown had accepted before the primary judge that the amounts were in principle recoverable, and the disputed sum was no more than $11,200 and likely less [40]. The Court concluded that Peapell should not be put to the cost and inconvenience of another hearing in those circumstances.
The judgment presents the relevant starting point as the general rule in Cachia v Hanes: costs are indemnificatory, not compensatory for time or inconvenience [22]-[23]. It also relies on Ryde City Council v Pedras as applying that approach to a self-represented litigant, including the exclusion of loss of earnings as a disbursement [28].
For Local Court costs under s 213 of the CP Act, Wang v Farkas had already established that “professional costs” impose a legal limit on the costs power. Ball JA applies that reasoning to costs awarded in favour of an accused person against a prosecutor and clarifies how “professional disbursements” should be understood: by their nature and recoverability, not simply by who paid them [24]-[27]. This means a disbursement may qualify even when paid directly by an unrepresented accused, provided it is of the kind a professional would have incurred and could recover on a party/party basis [27].
The decision also clarifies that travel and accommodation should not be treated as one undifferentiated category. The judgment rejects a blanket rule that they can never be recovered, because they may constitute witness expenses [35]. At the same time, it distinguishes ordinary travel to and from court for a self-represented litigant’s own appearance, which is not recoverable under the principles considered [36].
The judgment leaves important matters unresolved. It does not finally decide whether an erroneous award under s 28(3) of the CAR Act is jurisdictional error [29]. Nor does it finally determine the relationship between the District Court’s power under s 28(3), dealing with costs in the District Court, and its power under s 28(2) to exercise the Local Court’s functions in relation to Local Court costs [30]. Leeming JA’s additional observations emphasise that these are distinct powers, although the District Court can make a single order reflecting both [2].
The judgment itself does not describe how later courts have treated it. Its discussion of earlier authorities is available, but the supplied text contains no post-decision cases or subsequent judicial treatment. Any assessment of later developments therefore remains open on this source.
At [22], Ball JA adopts the statement from Cachia that costs reimburse a litigant for costs actually incurred and are not compensation for “some other disadvantage or inconvenience”. In plain English, costs are not a general payment for the effort, disruption or consequences of being involved in litigation.
At [27], Ball JA says a professional disbursement is one that would have been incurred if a professional had acted and that would have been recoverable on a party/party basis. In plain English, the key question is not just whether the self-represented person paid money. It is whether the expense belongs to a category that could properly have appeared in a recoverable costs bill prepared for a represented party.
At [33], the Court says printing costs would ordinarily be recoverable. The judgment reasons that they are an actual litigation expense and would have been recoverable by a solicitor acting for Peapell. This is a general statement about the category, not a finding that every printing expense in every case is automatically recoverable.
At [35], Ball JA rejects the proposition that travel and accommodation can never be recovered. Witness expenses can include them, and the judgment says the same principle can apply when the witness is the self-represented accused. The character and purpose of the expense therefore matter.
At [36], the Court draws the other side of the distinction: travel to and from court for the litigant’s own appearance is not recoverable as a professional disbursement under s 213 or as costs under s 28(3). The judgment nevertheless leaves open whether allowing such an amount under s 28(3) would amount to jurisdictional error.
At [40], the Court explains why the summons was dismissed despite unresolved questions. A further hearing would impose costs and inconvenience on Peapell; the Crown had accepted that the costs were in principle recoverable; and the amount at issue was limited. This passage shows that the disposition turned on discretion in the circumstances, not on a comprehensive ruling that every claimed item was valid.
Leeming JA’s observation at [2] adds a procedural distinction. The District Court could exercise the Local Court’s costs power and also its own appeal-related costs power. Those are separate statutory powers, even though a single order may combine their results.
The reasoning is most directly relevant where an unrepresented accused person succeeds in criminal proceedings and seeks costs under the statutory provisions considered in this case. The first question is which proceeding generated the costs: the Local Court matter or the District Court appeal. The judgment treats the Local Court and appeal costs powers as distinct, and Leeming JA explains that a single order can reflect both powers [2], [18], [30].
It is also relevant where the costs claim includes expenses rather than a lawyer’s professional fees. The judgment requires attention to the nature of each expense, whether it was actually incurred, whether it relates to the proceedings, and whether it would have been recoverable by a professional on a party/party basis [22], [27], [33].
For travel and accommodation claims, the key factual distinction is whether the expense was a witness expense or simply the litigant’s travel to attend court to represent themselves. Witness travel and accommodation may be recoverable; ordinary travel to and from court for the litigant’s own appearance is not, under the reasoning in [35]-[36]. The decision does not provide a complete list of all travel purposes that qualify.
The case also matters where a costs challenge is brought by judicial review and depends on characterising an alleged error as jurisdictional. The statutory basis for the original order, the type of expense, the evidence supporting it, and whether the issue was put to the primary court may all be significant. Here, the lack of evidence identifying what expenses related to prevented the Court from determining their recoverability [39].
Finally, the discretionary aspect may be relevant where a successful challenge would lead to a remittal and a further hearing. The Court considered the parties’ positions below, the amount in dispute, and the inconvenience of reopening the matter [40]. Those factors explain this disposition, but the judgment does not establish that the same discretion must be exercised in the same way in other cases.
The supplied judgment does not identify any later court decisions applying, distinguishing, or otherwise treating Director of Public Prosecutions (NSW) v Peapell. It was decided on 8 July 2025, and the materials provided contain no subsequent authorities.
The judgment itself discusses earlier decisions. It applies the reasoning in Cachia v Hanes on the indemnificatory nature of costs [22]-[23], relies on Wang v Farkas for the statutory meaning and jurisdictional significance of “professional costs” under the CP Act [24]-[27], and refers to Ryde City Council v Pedras in relation to the meaning of costs under the CAR Act [28]. It also discusses authorities concerning travel expenses, including Cachia v Isaacs, Murphy v Arnoldus-Lewis, Indjic v Stojanovic, Cmunt v Commissioner of Police NSW, and Anderson v Canaccord Genuity Financial Ltd (No 2) [34]-[36].
Those citations explain the reasoning available in this judgment; they do not establish how later courts have treated Peapell. The latter question cannot be answered from the supplied source.
First, the Court did not finally decide whether a legal error in applying the Cachia principles to an order under s 28(3) of the CAR Act constitutes jurisdictional error. Ball JA contrasted the broad discretion in s 28(3) with the specific statutory definition of “professional costs” in the CP Act, and said the point was unresolved [29].
Second, the precise division between ss 28(2) and 28(3) remains open. Ball JA considered that s 28(2) probably gives the District Court the Local Court’s power for Local Court costs, while s 28(3) concerns costs of the District Court appeal. But he did not express a final view because the parties had not addressed the issue [30]. Leeming JA’s observations confirm that the powers are distinct, but do not resolve every question about their boundaries [2].
Third, the judgment does not determine which of Peapell’s travel and accommodation expenses were witness expenses or otherwise recoverable. The record lacked evidence identifying their purpose and connection to the particular proceedings [39]. Nor does the judgment provide an exhaustive test for every possible travel purpose.
Fourth, the Court left open whether an award of travel costs under s 28(3), despite the principles in Cachia, would be a jurisdictional error. The judgment notes that Cachia described disallowance of travel expenses as within the Taxing Master’s discretion, without stating that allowing such expenses would necessarily be legal or jurisdictional error [36].
Finally, the dismissal of the DPP’s summons should be read in light of the Court’s express reliance on discretion. The result avoided another hearing in the circumstances described at [40]. It did not settle every possible dispute over self-represented litigants’ costs or confirm the recoverability of every item in the original $11,200 award.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Peapell [2025] NSWCA 147
Hearing dates: 10 June 2025
Date of orders: 8 July 2025
Decision date: 08 July 2025
Before: Leeming JA at [1];
McHugh JA at [3]
Ball JA at [4]
Decision: (1) The summons filed on 19 March 2025 be dismissed.
(2) The applicant pay the first respondent’s costs assessed in the amount of $140.
Catchwords: COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW)
ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), s 2
Crimes (Appeal and Review) Act 2001 (NSW), ss 13(1), 28, 70
Criminal Procedure Act 1986 (NSW), ss 211, 212, 213, 214, 217
Director of Public Prosecutions Act 1986 (NSW), s 9(1)(b)
District Court Act 1973 (NSW), s 176
Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
Legal Profession Uniform Law Application Act 2014 (NSW)
Cases Cited: Anderson v Canaccord Genuity Financial Ltd (No 2) (2024) 115 NSWLR 1; [2024] NSWCA 161
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Cachia v Isaacs [1989] NSWCA 31
Cmunt v Commissioner of Police NSW [2019] NSWLEC 33
Indjic v Stojanovic [2020] NSWSC 470
Murphy v Arnoldus-Lewis [2009] NSWCA 142
Ryde City Council v Pedras [2009] NSWCCA 248
Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) – Sydney (Applicant)
Aaron Peapell (First Respondent)
District Court of New South Wales (Second Respondent)
Representation: Counsel:
J Davidson (Applicant)
Litigant in Person (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
Litigant in Person (First Respondent)
File Number(s): 2025/107317
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 4 February 2022, the respondent, Mr Aaron Peapell, was charged with an offence of unlawfully entering into inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW). It was alleged that the respondent had attempted to climb onto the complainant’s balcony shortly after midnight on 9 January 2022.
Mr Peapell did not appear at his Local Court hearing and was convicted in his absence and fined $500. On 27 June 2022, Mr Peapell made an application to have his conviction annulled. The application failed in the Local Court but was successful in the District Court on 13 October 2022.
The matter was reheard in the Local Court on 15 June 2023. Mr Peapell was convicted in the Local Court and fined $330. He then appealed to the District Court pursuant to s 13(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Pursuant to a protocol that then operated between the police and the Director of Public Prosecutions (DPP), the DPP took over the conduct of the appeal. Mr Peapell again represented himself on appeal. On 6 August 2024 Wass SC DCJ allowed the appeal and quashed the conviction.
After determining the appeal and receiving submissions on costs, Wass SC DCJ ordered the Crown to pay Mr Peapell’s costs in the sum of $11,200. That figure comprised of amounts for printing, accommodation, food, taxis, flights and fuel.
By a summons filed on 19 March 2025, the DPP sought judicial review of that decision. The DPP contended that the primary judge had no jurisdiction to award the costs that she did under either the CAR Act or the Criminal Procedure Act 1986 (NSW) (CP Act).
The Court held (Ball JA, Leeming and McHugh JJA agreeing) dismissing the summons:
(1) The Court has a discretion to refuse the relief claimed. That discretion should be exercised in Mr Peapell’s favour. Mr Peapell was only entitled to recover disbursements that would have been recoverable by a legal practitioner acting for him on a party/party basis under both s 213 of the CP Act (in respect of costs in the Local Court) and s 28(3) of the CAR Act (in respect of costs in the District Court). That included printing costs and witness expenses, including travelling costs incurred by Mr Peapell as a witness, but it did not include Mr Peapell’s costs of travelling to and from court to represent himself. Moreover, although the question whether those costs were recoverable raised a jurisdictional question so far as the Local Court is concerned, it is unclear whether it raised a jurisdictional question so far as the District Court is concerned. It was not clear on the evidence precisely how the $11,200 was made up or whether it related to costs in the Local Court or District Court. Consequently, if relief were granted to the DPP it would be necessary for the matter to be referred back to the District Court for a further hearing. Mr Peapell should not be put to the costs and inconvenience of a further hearing when the Crown accepted before the primary judge that the amounts in issue were in principle recoverable, where the amount in issue is no more than $11,200 and most likely less than that, and where there are unresolved questions concerning whether her Honour made a jurisdictional error in awarding the costs that she did: [40].
Per Leeming JA (McHugh JA agreeing):
(2) The District Court was exercising two distinct powers: the power to make the costs order the Local Court was empowered to make, and the power of the District Court to make a costs order following the determination of the appeal. The powers are distinct, and the former but not the latter must be quantified and is enforceable as a fine. It is open to the District Court to make a single order which reflects the combination of both powers, although it is also open for both powers to be exercised separately, resulting in separate orders for the costs in each of the Local Court and the District Court, which is the usual course adopted by appellate courts: [2].
LEEMING JA: I agree with Ball JA, for the reasons he gives, that the Director's summons should be dismissed, and that she should be ordered to pay Mr Peapell’s costs in this Court in the amount of $140. The Director has achieved some success in relation to her submissions upon the limitations of the power of the Local Court and the District Court to order costs, including as to the expenses incurred by an unrepresented litigant which cannot be included in a costs order; that will clarify the position in future cases, which was the reason for the Director’s application to this Court. The dismissal of the summons is a consequence of none of the points on which the Director has succeeded being raised in the District Court, although there was ample opportunity to do so. As Ball JA explains, there is some doubt as to the nature of the some of the costs incurred, leading to the possibility that the discretion may not have been correctly exercised by the District Court in favour of Mr Peapell in relation to some aspects of his claim. However, the Director’s failure to raise these points in the court below warrants the refusal of relief on discretionary grounds.
I add one thing by way of emphasis. The District Court was exercising two distinct powers: the power to make the costs order the Local Court was empowered to make, and the power of the District Court to make a costs order following the determination of the appeal. The powers were similar, and in particular the preconditions in s 214 of the Criminal Procedure Act 1986 (NSW) applicable to the former resemble those in s 70 of the Crimes (Appeal and Review) Act 2001 (NSW) applicable to the latter. Nonetheless, the powers are distinct, and the former but not the latter must be quantified and is enforceable as a fine (see ss 213(5) and 217 of the Criminal Procedure Act). It is open to the District Court to make a single order which reflects the combination of both powers, although it is also open for both powers to be exercised separately, resulting in separate orders for the costs in each of the Local Court and the District Court, which is the usual course adopted by appellate courts.
McHUGH JA: I agree with Ball JA, and with the additional observations of Leeming JA.
BALL JA: By a summons filed on 19 March 2025, the Director of Public Prosecutions (DPP) seeks judicial review of a decision of the District Court (Judge Wass SC) on 20 December 2024 the effect of which was to require the Crown to pay the first respondent, Mr Aaron Peapell, costs in the amount of $11,200 following Mr Peapell’s successful appeal against his conviction in the Local Court of an offence of unlawfully entering into inclosed lands contrary to s 4(1)(b) of the (NSW). Judicial review is only available for jurisdictional error: see (NSW), s 176. For reasons which will become apparent, if the application is successful the DPP seeks an order that the matter be remitted to the District Court to be dealt with according to law.
Mr Peapell was charged with the offence on 4 February 2022. It was alleged that shortly after midnight on 9 January 2022, Mr Peapell had attempted to climb onto the complainant’s balcony. The complainant pushed him away and called the police. The complainant told the police that she had seen Mr Peapell on several occasions previously (he then lived nearby), that he appeared to be intoxicated and that she had seen him again shortly afterwards at a bus stop outside her apartment complex. The police searched the area, but found no one. The officer in charge made some attempts to obtain CCTV footage of the incident, but was unsuccessful and took no further steps in that regard.
On 15 January 2022, the complainant observed Mr Peapell near her residence and reported him to the police as the person who had unlawfully entered her premises. The police arrested Mr Peapell on 4 February 2022. He participated in a record of interview. He said that he was at home that night working on the internet.
The matter was listed for hearing on 9 June 2022. However, Mr Peapell did not appear at that time. He was convicted in his absence and fined $500. On 27 June 2022, Mr Peapell made an application to have the conviction annulled. That application failed in the Local Court, but was successful in the District Court on 13 October 2022.
The matter was reheard in the Local Court on 15 June 2023, by which time Mr Peapell had moved to Perth. He represented himself and gave evidence at the hearing. He denied the offending. He produced evidence of his Google and YouTube chat logs from his computer both immediately before and immediately after the alleged offending. The logs disclosed that Mr Peapell finished messaging at 9.52 pm and watched a YouTube video up until at least about 11.52 pm and commenced viewing another video at 1.04 am. Mr Peapell submitted that the nature of his correspondence indicated that he was not intoxicated. Mr Peapell also submitted that despite his requests at the time he was interviewed, the police had not obtained complete CCTV footage or conducted a search for the green shirt and black pants the complainant said he was wearing. The evidence produced by Mr Peapell had previously been offered to the police, but was initially declined. It was ultimately provided to the police on 7 February 2022.
Mr Peapell was convicted in the Local Court and fined $330. Magistrate Moody accepted that the complainant was a “credible witness” and was “very clear that she knew who he was”. The Magistrate also thought that the computer logs indicated that there was sufficient time between when Mr Peapell ceased viewing the first YouTube video at about 11.52 pm and viewing another at 1.04 am to have committed the offence.
Mr Peapell appealed to the District Court pursuant to s 13(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Pursuant to a protocol that then operated between the police and the DPP, the DPP took over the conduct of the appeal exercising her rights under s 9(1)(b) of the (NSW).
“When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.
(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967.
Note: The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction.”
“When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.
…
(5) The order must specify the amount of professional costs payable.”
The phrase “professional costs” is defined in s 211 of the CP Act to mean “costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court”.
Section 214(1) of the CP Act provides:
“Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following—
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.”
An order for the payment of costs under the CP Act is enforceable as a fine: see s 217.
Section 28(2) of the CAR Act provides that “In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings”. It follows that Judge Wass had power to make orders in relation to the costs of the Local Court proceedings in accordance with s 212 of the CP Act. In addition, in relation to the costs of the appeal, s 28(3) of the CAR Act provides:
“Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.”
Section 70 relevantly provides:
“Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied—
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or
(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter—
(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
(2) …
(3) …”
The Crown contends that any such order must be confined to those expenses incurred during the proceedings; I agree.
The Applicant needs to establish that the costs were incurred in the proceedings both in the Local Court and on appeal. The Crown accepts that the order can include “money paid by the Applicant in defence of the charge”.
The Applicant has provided a list of expenses which were incurred in the course of the proceedings, being flights, fuel, accommodation, printing and the like, where he actually incurred the costs. They were not ultimately disputed. They are to be allowed. It does not extend to the time lost for compensation made for lost contracts and the like; I do not regard the costs claimed as fair and reasonable. There are no professional costs to be claimed and I have had regard to Wang v Farkas [2014] NSWCA 29 dealing with professional costs but also making clear the meaning of disbursements where money is to be paid out and expended and the disbursements do not link themselves to legal expenses. I do not read that decision to mean that expenses did not need to be by way of disbursements to be paid to a legal practitioner if they are otherwise relevantly and reasonably incurred.
Those reasonable disbursements include in relation to the proceedings: printing for $100; accommodation for $4,500; food for $300; taxis for $300; flights for $5,250; fuel for $750, rendering on my total without the contract loss, $11,200. I have not allowed the contract loss although if I am wrong about that, I would hear the parties as to whether or not that had to be paid out by the Applicant by reason of appearing in the proceedings. I would not otherwise allow it. I will return to that in the end.
“…the accepted basis for an award of costs is that they are by way of indemnity. They are intended to reimburse a litigant for costs actually incurred; they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant.”
“The disbursements claimed by the appellant and disallowed upon taxation were, on the one hand, travelling expenses in addition to a witness’s fee for preparation and, on the other hand, travelling expenses to hear judgment. Either the appellant was entitled to the witness’s fee or he was not; he was not entitled to travelling expenses in addition to or in lieu of the fee. And since the appellant was not entitled to any recompense for his appearance in court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose. They were not an out-of-pocket expense which would have been recoverable by him or his solicitor in this case had he been legally represented. (at 417)”
“Accepting that difficulties will arise in drawing a line between jurisdictional and non-jurisdictional errors of law, the respondent's submissions cannot be accepted. Although the power conferred on the Local Court is to award such costs as it thinks to be ‘just and reasonable’, what is just and reasonable is not to be judged at large. Rather, the exercise is constrained by the defined term, ’professional costs’. If, properly understood, that phrase does not include the value of time spent by a legal practitioner in conducting his or her own litigation, then the inclusion of an amount on that account in the award would be an error of law on the part of the Court. But it is more than that: it involves the award of an amount of money to compensate for that for which the law says compensation is unavailable. In functional terms, it involves the exercise of a power which does not exist. That constitutes jurisdictional error. Accordingly, this Court has power to intervene.”
The same reasoning applies equally to an award of costs against a prosecutor under s 213.
There is a question of what is meant by the phrase “costs … relating to professional expenses and disbursements”. In circumstances where the phrase defines a term (“professional costs”) which itself uses the word “professional”, the word “professional” in the definition must be read distributively. What can be recovered are costs relating to professional expenses and costs relating to professional disbursements. The draftsperson could not have intended “professional costs” to include any type of disbursement whether professional or not.
It seems plain that a professional expense is an expense (that is, a fee) charged by a professional for the delivery of services in respect of the proceedings before the Court. That conclusion is consistent with the decision in Wang. In that case, Basten JA (with whom Bathurst CJ and Beazley P agreed) said at [21] that the defined term (“professional costs”) “must exclude costs which would be incurred by a non-professional person, such as a litigant acting for himself or herself”. His Honour thought the position was the same even if the self-represented litigant was a qualified lawyer on the basis that “the plural ‘expenses’ is not used in ordinary parlance to refer to matters other than money”, with the result that it is not possible to say that such a litigant who spends time on the litigation can be said to have incurred any expenses in relation to it.
What is meant by “professional disbursements” is not as clear. A narrow reading is that it only refers to disbursements incurred by a professional. But there is a difficulty with that construction. It is apparent from the definition of “professional costs” that professional disbursements include witness fees. But it cannot matter whether the witness fees are paid by the professional or are paid directly by the client (the accused person). And if that is correct, it cannot matter whether the accused person is represented or not. More generally, it is difficult to see why the recoverability of a disbursement should depend on who pays it. A preferable interpretation of the expression in this context is that it refers to the nature of the disbursement. Read in that way, a professional disbursement is one that would have been incurred if a professional had been acting for the accused person and that would have been recoverable on a party/party basis. On that interpretation, the limitation in respect of “professional costs” closely reflects the principles ordinarily applicable to the recovery of costs as explained in Cachia. The only difference is that the incorrect application of those principles amounts to a jurisdictional error.
Section 28(3) of the CAR Act confers a general power on the District Court to award costs, subject to satisfaction of the requirements set out in s 70. “Costs” in this context has been taken to mean costs in the sense explained in Cachia: see Ryde City Council v Pedras [2009] NSWCCA 248 (). In that case, Giles JA (Buddin J agreeing) stated (at [28]):
“The reasoning of the majority in Cachia v Hanes applies. ‘Costs” means money paid or liabilities incurred for professional legal services, and costs orders are intended to reimburse a party for costs incurred, and ‘are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant’ (at 414, per Mason CJ and Brennan, Deane, Dawson and McHugh JJ). Loss of earnings can not be treated as a disbursement (at 417, ibid).”
Pedras was referred to by Basten JA in Wang (at [36]) as being “a straightforward application of Cachia v Hanes to a non-legal practitioner litigant”.
One important difference between s 213 of the CP Act and s 28(3) of the CAR Act is that it is unclear whether a failure to award costs under s 28(3) of the CAR Act in accordance with the principles stated in Cachia amounts to a jurisdictional error. Section 28(3) gives the District Court a broad discretion in relation to costs in relation to the hearing before it subject only to s 70. There is nothing in s 28(3) to suggest that a legal error in relation to the principles applicable to the exercise of that discretion was intended to be a jurisdictional one. Plainly the reasoning of Basten JA in Wang at [43] has no application. Moreover, in the normal course of events, where a lawyer is acting for the accused person, the court may simply make an order that the prosecutor pay the accused person’s costs (or some proportion of them) of the hearing before it, leaving those costs to be assessed in accordance with Part 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). The question of jurisdictional error would not arise. It is unclear why a different result should follow if the District Court makes an order for costs in favour of a self-represented litigant, at least if those costs are of a general nature that a self-represented litigant is entitled to recover.
There is a question whether the discretion conferred by s 28(3) of the CAR Act is limited to the costs in the District Court or whether it also applies to a re‑exercise by the District Court of the costs discretion conferred on the Local Court. The better view seems to be that s 28(3) deals with the costs in the District Court and s 28(2) deals with the costs in the Local Court by giving the District Court the same power in relation to those costs as the Local Court has. If that is correct, the District Court would make a jurisdictional error if it made a costs order in relation to the costs in the Local Court that the Local Court could not have made. However, these issues were not addressed by the parties on this appeal, and it would not be appropriate for this Court to express a final view absent submissions on the point. For reasons which will become apparent, this is not an appropriate case for the Court to invite further submissions on the issue.
There is also a question of what costs are recoverable as professional disbursements under s 213 of the CP Act or in accordance with the general principles relating to the recovery of costs as they apply to s 28(3) of the CAR Act.
Three types of cost are in issue in this case. They are printing costs, accommodation costs and travel costs.
In the normal course of events, printing costs would be recoverable. They are an actual disbursement or cost incurred in connection with the litigation and would have been recoverable by a solicitor if one had been acting for Mr Peapell.
Accommodation and travel costs can be taken together. The Court was taken to several authorities that suggest that travel costs are not recoverable, including [2009] NSWCA 142; [2020] NSWSC 470 at [76]-[77] (Hallen J) and [2019] NSWLEC 33 (Pepper J). See also (2024) 115 NSWLR 1; [2024] NSWCA 161 at [131], where this Court after referring to the decision of Samuels JA (with whom Clarke JA agreed) in [1989] NSWCA 31 said:
“Samuels JA held that the appellant was entitled to out of pocket expenses of travel to collect the security [for the costs of the appeal], but was not entitled to recompense for time spent in doing so, or otherwise for his time spent on the litigation. The dispositive reasoning of Samuels JA in relation to the relevant items was as follows:
No case places restrictions upon the character of out of pocket expenses in respect of which a litigant in person may recover; save that I think that if she is not entitled to be remunerated for appearing in court, she ought not to be paid for getting there. I see no reason therefore why unqualified persons cannot be paid to type if qualified persons can be paid to advise.
I think that the error arises out of the concept that an unqualified litigant in person cannot recover for anything spent ‘for the carrying out of legal or professional work’. That is not the test. Moneys spent ie moneys out of pocket, for such a purpose are recoverable. Compensation for time lost by the litigant in doing the work himself is not.
That really disposes of the appeal …”
Plainly, it states the position too broadly to say that travel and accommodation costs can never be recovered. Witness costs, which may include travel and accommodation costs, are recoverable. There is no reason why a different principle should apply where the witness is the accused person, even if the accused person is self-represented.
In other cases, travel and accommodation costs may be recoverable depending on the reasons for the travel. However, it seems to be accepted that expenses incurred in travelling to and from court are not recoverable. Expenses of that type do not fall within the definition of “professional costs” for the purpose of s 213 of the CP Act because they are not expenses that a professional would be entitled to recover. They are not properly regarded as “costs” for the purposes of s 28(3) of the CAR Act. However, in the case of s 28(3) of the CAR Act there remains a question whether an award of travel costs would amount to a jurisdictional error. That is particularly so where in Cachia*,* the Court simply said that it was “within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose”. The Court did not suggest that it would have been a legal error, let alone a jurisdictional one, if the Taxing Master had allowed costs of that type.
The primary judge proceeded on the basis that it was open to her to award any expenses incurred by Mr Peapell “during the proceedings”. The Crown did not suggest that that was incorrect. Most of its submissions in relation to the quantification of costs were focussed on Mr Peapell’s claim for his time in preparing his defence and in preparing for the appeal, which were not allowed. In relation to travel and accommodation costs, the DPP in her written submissions said this:
“Removing the impermissible disbursements to the applicant himself, the Court is left with alleged costs related to printing, driving, an airfare and accommodation. In the absence of evidence of these costs being actually incurred by the applicant, and in the absence of evidence connecting these specific costs with the applicant’s defence of the charge before the Court, the Crown submits the applicant has failed to discharge his onus and consequently the Court would refuse the application.”
However, at the hearing, Mr Lovely, who appeared for the DPP, accepted that the Crown did not dispute that Mr Peapell had “in fact incurred the costs that he’s set out”. Her Honour proceeded on that basis.
There is no material before this Court which sheds light on what the accommodation and travel costs related to or whether they related to the prosecution or the appeal. Consequently, there is no basis on which this Court could determine whether the expenses are recoverable under s 213 of the CP Act or s 28(3) of the CAR Act. All that can be said is that it seems likely that the printing costs of $100 are recoverable and that some of the travel and accommodation costs may be recoverable as witness fees. For those reasons, if the application succeeded the matter would have to be sent back to the District Court for a further hearing.
The DPP accepts that the Court has a discretion to refuse the relief claimed. In my opinion, that discretion should be exercised in Mr Peapell’s favour. Mr Peapell should not be put to the costs and inconvenience of a further hearing when the Crown accepted before the primary judge that the amounts in issue were in principle recoverable, where the amount in issue is no more than $11,200 and most likely less than that, and where there are unresolved questions concerning whether her Honour made a jurisdictional error in awarding the costs that she did.
That leaves the question of costs in this Court. During the course of argument, Mr Peapell indicated that he had incurred costs of $140 in producing for the court a bundle of authorities. In accordance with the principles set out earlier, those costs are recoverable. It was not suggested that Mr Peapell had incurred other costs that were recoverable in accordance with those principles. The Court did not have before it evidence of the actual costs of producing the bundles. However, it did have the bundles and $140 appears to be a reasonable allowance for the costs of their production. Consequently, I would propose that the Court order that the DPP pay Mr Peapell the sum of $140 in respect of his costs.
The orders I therefore propose are:
The summons filed on 19 March 2025 be dismissed.
The applicant pay the first respondent’s costs assessed in the amount of $140.
**********
Change in orders on coversheet and [42] - summons filed 19 March 2025 not 19 May 2025.
Director of Public Prosecutions (NSW)
Peapell [2025] NSWCA 147
(2024) 115 NSWLR 1
(1994) 179 CLR 403
(2014) 85 NSWLR 390
The summons for judicial review was dismissed, and the DPP was ordered to pay Peapell’s costs assessed at $140.
Again, Mr Peapell represented himself in the appeal. On 6 August 2024, Judge Wass allowed the appeal and quashed the conviction. At the hearing of the appeal on that date, the prosecutor accepted that it was fair to say that there was a reasonable possibility that Mr Peapell’s denials of the offence were true.
After determining the appeal, Judge Wass sought submissions on costs. Her Honour delivered judgment on that question on 20 December 2024. Relevantly, her Honour ordered that “The respondent is to pay the applicant costs in the sum of $11,200”.