El-Zayet v The Queen

Summons seeking leave to appeal 15On 26 March 2014 when the issue of jurisdiction arose, the application to the Court of Criminal Appeal had not been determined. For the reasons we give below, we have treated that application to be before us, sitting as the Court of Criminal Appeal. 16As indicated above, a question arose as to whether the Court of Appeal had jurisdiction to determine the matter because it was a criminal, not a civil, proceeding. Argument in the Court of Appeal was permitted to proceed in the matter but the parties were directed to file further written submissions on the following questions: "(a) whether an application for costs under the Costs in Criminal Cases Act 1967 is a civil or criminal proceeding within the meaning of the Civil Procedure Act 2005; (b) whether, if an application for costs under the Costs in Criminal Cases Act is a criminal proceeding, any appeal lies from the order of Price J made on 14 June 2013 dismissing the notice of motion of Naseam El-Zayet by 9 April 2014." 17In his written submissions filed pursuant to this direction, the applicant submitted that the proceedings were criminal. He contended that, although the nolle prosequi on 1 June 2012 deprived the Supreme Court from further proceeding on the indictment, the Supreme Court retained the power formally to discharge the applicant and to determine any costs application made under the Costs in Criminal Cases Act in respect of that proceeding. The applicant submitted, therefore, that the costs order made by Price J on 26 July 2013 ought to be set aside, as Price J was exercising criminal jurisdiction in determining the applicant's notice of motion and so lacked jurisdiction to make a costs order on the notice of motion. 18The Crown contended that the proceedings were civil and did not fall within the definition of a criminal proceeding in the Civil Procedure Act 2005 (NSW), s 3 because an application for a certificate under the Costs in Criminal Cases Act did not involve "proceedings against a person for an offence". It submitted that, as the Civil Procedure Act defines a civil proceeding as "any proceeding other than criminal proceedings", the application under the Costs in Criminal Cases Act and the notice of motion brought in that application were properly characterised as civil proceedings. 19The Crown also submitted that the applicant had no right to appeal to either the Court of Appeal or the Court of Criminal Appeal. With respect to the Court of Appeal, the Crown relied upon the Supreme Court Act 1970 (NSW), s 17 and the Third Schedule, para (i) as precluding an appeal. With respect to the Court of Criminal Appeal, the Crown submitted that there was no appeal available under the Criminal Appeal Act, s 5F(3), as there were no extant criminal proceedings in respect of which an appeal, by leave from an interlocutory order, lay. 20At the time the questions at [16] above were formulated, the concern was that, if the proceedings were criminal proceedings, the Court of Appeal would have no jurisdiction to hear the matter, as it was not constituted as a Court of Criminal Appeal. However, as the submissions filed by the Crown make apparent, there are two preliminary questions to be determined which are not directly dependent upon the characterisation of the proceedings as civil or criminal. The first question is whether the Court of Appeal has jurisdiction to hear an appeal, including by leave, from the order made by Price J dismissing the amended notice of motion. That question in turn depends upon the provisions of the Supreme Court Act and, in particular, s 17 and the Third Schedule to that Act. If the Court of Appeal has no jurisdiction to determine the appeal, there is a second question as to whether an appeal lies to the Court of Criminal Appeal. 21If the Court of Appeal does not have jurisdiction, or there is doubt as to whether the Court has jurisdiction, this Court may be constituted as a Court of Criminal Appeal and determine the matter in the jurisdiction in which the appeal properly lies: R v King [2003] NSWCCA 399; 59 NSWLR 472 at [21]; Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172 at [7]. 22Given the doubt as to the jurisdiction of the Court of Appeal, the Chief Justice has constituted the judges of this bench as a Court of Criminal Appeal to deal concurrently with the proceedings.

Relevant legislation 23The following legislative provisions are relevant to the questions thus raised.

Costs in Criminal Cases Act 24The applicant's notice of motion seeking access to the report was filed in the application he brought for a certificate under the Costs in Criminal Cases Act. Section 2(1)(a) of the Costs in Criminal Cases Act provides that where, after the commencement of a trial, a direction is given by the Director that no further proceedings be taken, the Court may grant to the defendant a certificate specifying the matters stated in s 3. Section 3 provides: "(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 25If a certificate is granted, the defendant may apply to the Director-General of the Attorney General's Department for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates: s 4(1). The Director-General determines the amount of costs payable to the defendant to whom a certificate has been granted: s 4(2)-(3). The Director-General may also refuse to make any payment if the Director-General considers that, in all the circumstances, a payment is not justified, or if costs are otherwise recoverable: s 4(4). 26There was no dispute in this Court that the direction that no further proceedings be taken against the applicant on the indictment was given "after the commencement of the trial": see JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 so that the applicant was entitled to make an application under the Costs in Criminal Cases Act. That application remains on foot and except to the extent that the application for production of the document arose in the course of that application, the application it is not otherwise of relevance in these proceedings.

The Supreme Court Act 27Appeals to the Court of Appeal from an order or judgment of the Court in a Division are provided for by the Supreme Court Act, s 101. Pursuant to s 101(2), appeals from certain orders or judgments, including interlocutory orders or judgments in proceedings in the Court, require the leave of the Court of Appeal: s 101(2)(e). The order made by Price J dismissing the notice of motion was interlocutory: see Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423; Licul v Corney [1976] HCA 6; 180 CLR 213; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225. 28Pursuant to the Supreme Court Act, s 17, the Supreme Court Act and the Supreme Court Rules 1970 (NSW) do not apply to the proceedings specified in the Third Schedule to that Act or to certain interlocutory proceedings. Section 17 in its present form (the bolded portions having been introduced by the Statute Law (Miscellaneous Provisions) Act 1988 (NSW), Sch 18) provides, relevantly: "17 Criminal proceedings (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule ..." 29The paragraph of the Third Schedule to the Supreme Court Act that is relevant to the present case is para (i). However, other paragraphs and, in particular, paras (a), (a1) and (a2), are relevant to the construction of the provision. Those paragraphs are set out hereunder. Other paragraphs of the Third Schedule will be referred to as necessary in the course of these reasons. The Third Schedule relevantly provides: "Third Schedule Criminal proceedings (a) Proceedings in the Court for the prosecution of offenders on indictment ('indictment' including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted, (a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court, (a2) proceedings (whether in the Court or the District Court) under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, ... (i) proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967." 30The proceedings referred to in paras (a), (a1) and (i) are apparent from the terms of the provision. Paragraph (a2) refers to pleas of guilty in committal proceedings. 31Before leaving the provisions of the Third Schedule, it should be noted that it is headed "Criminal proceedings". Pursuant to the Interpretation Act 1987 (NSW), s 35(1)(b), the heading to the Schedule is taken to be part of the Act. 32The phrase "claim for relief" is defined in the Supreme Court Act, s 19(1) to include: "(a) a claim for the recovery of damages or other money, or for possession of land, or for delivery of goods, (b) a claim for a declaration of right, (c) a claim for the determination of any question or matter which may be determined by the Court, and (d) any other claim (whether legal, equitable or otherwise) justiciable in the Court."

The Civil Procedure Act 33The Civil Procedure Act and the UCPR, upon which the Director relies, apply only to civil proceedings: see Civil Procedure Act, s 4 and UCPR, r 1.5. "Civil proceedings" are defined in s 3 as meaning "any proceedings other than criminal proceedings". "Criminal proceedings" are defined in s 3 as meaning: "... proceedings against a person for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence."

Section 17 as originally enacted 34It is useful at the outset to note the legislative history of s 17 and the Third Schedule and the proper construction of those provisions having regard to the jurisdiction of the Supreme Court. Those matters were examined by the Court of Appeal in Shepherd v Bowen (1986) 4 NSWLR 475. In that case, Mahoney JA (Glass and Priestley JJA agreeing) explained, at 478: "Prior to the enactment of the Supreme Court Act 1970, the Supreme Court of New South Wales had a general jurisdiction, and that jurisdiction included the jurisdiction to deal both with civil and criminal proceedings. That jurisdiction was conferred upon the Supreme Court as the result of the Act 4 Geo IV ch 96 and the Charter of Justice 1823." 35His Honour continued: "The Supreme Court Act, as originally enacted, was intended to have application generally to the civil jurisdiction of the Supreme Court. However, limitations were imposed upon the generality of its application in respect of its criminal jurisdiction." 36Mahoney JA identified s 17 and the Third Schedule as such a limitation. It followed that s 101, which provides for appeals to the Court of Appeal from a judgment or order of a Division of the Court in a proceeding, did not apply: see at 479. 37The Court in Shepherd v Bowen was considering s 17(1) and the Third Schedule in the form in which those provisions were originally enacted. Section 17(1) in that form provided: "Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule." The Third Schedule as originally enacted bore the heading "Excluded criminal proceedings". Paragraph (a) was in the same terms as its current form and is set out at [29] above. Paragraphs (a1) and (a2) had not been enacted. 38The applicant in Shepherd v Bowen had applied for an order for a stay of proceedings on indictment in the Supreme Court that had been brought against him. That application had been dismissed. The applicant contended on the appeal that that application did not fall within the phrase "prosecution of offenders on indictment" within the terms of para (a) and accordingly was not excluded by para (a) of the Third Schedule. This argument was rejected. Mahoney JA observed, at 479: "The exclusion effected by s 17(1) applies, in my opinion, not merely to the trial of offenders on indictment but also to such interlocutory applications and orders as may be taken in the course of and as part of those proceedings. These are proceedings 'for' the prosecution of the offenders referred to in the Third Schedule." 39Mahoney JA considered that the application for a stay brought by the applicant was "an incident of the proceedings ... brought ... for the prosecution of Mr Shepherd on indictment" and therefore a proceeding for such a prosecution within the terms of para (a) of the Third Schedule. His Honour, at 480, stated, however, that he did not: "... wish to preclude the possibility that it may be possible to bring applications concerning a proceeding on indictment which do not fall within the relevant words in the Third Schedule." 40The position was different in respect of proceedings in the District Court. In Richards v Smyth (Court of Appeal, 24 December 1985, unreported), Kirby P, Hope and Priestley JJA dismissed an objection that the Court of Appeal lacked jurisdiction in a challenge, by way of summons seeking prerogative relief, filed by an accused in respect of a District Court judge's refusal of his application to change his plea. The Court observed that "the Court" referred to in para (a) of the Third Schedule: "... is the Supreme Court. The prosecution of offenders on indictment in other courts, including the District Court, is not thereby included in the exemption in s 17(1) ... Accordingly, there is no basis for suggesting that, by virtue of s 17(1), criminal proceedings of the kind here in question were excluded from the jurisdiction of the Court of Appeal." 41Thus, as originally enacted, s 17(1) and the Third Schedule precluded from the operation of the Supreme Court Act and Rules any of the proceedings in the Court specified in the Third Schedule. An interlocutory order in a proceeding within para (a) was also precluded from the operation of the Act and Rules. An appeal from a conviction or sentence in such proceedings lay to the Court of Criminal Appeal: Criminal Appeal Act, s 5. 42However, s 17(1) and the Third Schedule did not preclude an application for prerogative relief to the Court of Appeal in respect of a determination on an interlocutory application made by the District Court in proceedings for the prosecution of an offender on indictment, as para (a) was confined to proceedings in the Supreme Court. It should be noted that no appeal lay to the Court of Appeal from a conviction or sentence imposed in proceedings on indictment in the District Court. Any such appeal lay to the Court of Criminal Appeal: Criminal Appeal Act. There was, however, no provision in the Criminal Appeal Act at that time for an appeal against an interlocutory order made in such criminal proceedings. Prerogative relief was thus available in respect of such an order made in the District Court.

The 1988 amendments 43This inconsistency between the availability of relief in respect of interlocutory orders made in proceedings against an offender on indictment in the Supreme Court and in the District Court led to amendments to s 17(1) and the Third Schedule: see the long title of the Supreme Court (Appeals) Amendment Act 1987 (NSW); Explanatory Note, Supreme Court (Appeals) Amendment Bill 1987; Explanatory Note, Statute Law (Miscellaneous Provisions) Bill 1988, Sch 18. The Statute Law (Miscellaneous Provisions) Act 1988 (NSW) (the 1988 amendments) operated retrospectively so as to commence on 18 December 1987, being the date of commencement of the Criminal Appeal Act, s 5F relating to appeals against interlocutory judgments or orders in proceedings for the prosecution of offenders on indictment in the Supreme Court and the District Court: see Adler v District Court (NSW) (1990) 19 NSWLR 317 at 334; WO v Director of Public Prosecutions [2009] NSWCA 370 at [4]; Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [19]. An earlier amendment to the Third Schedule introduced by the Supreme Court (Appeals) Amendment Act, which also commenced on 18 December 1987, was replaced from the date of its commencement by the retrospective operation of the 1988 amendments. It is not necessary, therefore, to consider the 1987 amendments, which appear to have contained a drafting error, which led to the retrospective commencement of the 1988 amendments. 44The amendments made in 1988 introduced that part of s 17(1) which is bolded above at [28] and also introduced paras (a1) and (a2) into the Third Schedule. Paragraph (a2) in its original form related to the Justices Act 1902 (NSW). The paragraph was amended to its present form in 2001. There have been no further amendments to s 17(1). Nor have there been any presently relevant amendments to the Third Schedule. 45The effect of the 1988 amendments was addressed in Adler v District Court (NSW). The applicant had sought prerogative relief against the refusal of a stay of criminal proceedings on indictment brought against him in the District Court. Relief was sought not only against the District Court but also against the Director of Public Prosecutions and the Attorney General. There were various bases upon which the applicant sought the stay, including because the District Court lacked jurisdiction to hear the proceedings, which were alleged to be "void" by operation of the Criminal Procedure Act 1986 (NSW) and certain Imperial statutes. 46Kirby ACJ, at 334, observed in relation to the 1988 amendments to s 17 and the introduction of s 5F into the Criminal Appeal Act in 1987: "... the purpose of the legislation was to direct the flow of ordinary proceedings of that character from the Court of Appeal to the Court of Criminal Appeal. The re-allocation of business might be justified by the general responsibility of the latter Court for criminal appeals, including from the District Court in criminal proceedings. The [s 5F] amendments also introduced a provision for leave. They evidenced a Parliamentary intention to uphold the authority of the court of trial in considering applications for a stay." 47Having noted, at 333, that the relief sought by the applicant invoked the Court's original supervisory jurisdiction, his Honour observed, at 334, that clear statutory language would be required to oust that jurisdiction. His Honour concluded that s 17(1) did not evince a clear parliamentary intention to do so. On his Honour's construction, s 17(1) operated only where (relevantly in that case) the relief claimed was properly categorised as being against an interlocutory judgment or order in criminal proceedings on indictment within para (a1) (emphasis of Kirby ACJ at 335). A claim for prohibition or a declaration of right in respect of the jurisdiction of the District Court was not a claim for relief against such an order. 48Mahoney JA, at 337-338, also concluded that the Supreme Court's supervisory jurisdiction, which derived from its status as a superior court of record pursuant to the Charter of Justice, was not excluded by s 17(1). Mahoney JA rejected the suggestion that the reference in s 17 to "any of the proceedings in the Court" included a claim for prerogative relief brought in the Court in respect of a matter referred to in the Third Schedule. As his Honour pointed out, at 340-341, such a proceeding was not "a proceeding for the prosecution of an offender on indictment", as was required to fall within s 17 and the Third Schedule, para (a1). This aspect of his Honour's reasoning was directed to the first part of s 17, namely, that the Supreme Court Act and Rules do not apply to "any of the proceedings in the Court which are specified in the Third Schedule". 49Mahoney JA then considered the effect of the amendment to s 17 effected by the 1988 Act, namely, the addition into the section of the following words: "... and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule" 50His Honour accepted, at 341, that "claim for relief" within the amended s 17(1) included a claim made in the Court's supervisory jurisdiction for relief of a prerogative nature. His Honour considered that the purpose of the amendment made to s 17 was to restrict the extent to which the Court of Appeal "would be involved in the supervision of the orders and directions given by, inter alia, a District Court judge at the interlocutory stage". Mahoney JA stated that the prohibition against seeking relief in s 17(1) was not at large and "is limited to relief against an interlocutory judgment or order". Importantly, his Honour considered that the 1988 amendments did not oust the Court's jurisdiction to quash proceedings of a criminal nature where there was "a lack of jurisdiction in the trial court, a gross breach of natural justice or the like". As his Honour observed: "... s 17(1) does not prevent a claim being made to the Supreme Court to prohibit or quash, not an interlocutory judgment or order, but the proceeding itself."

Consideration 51Leaving aside those sections of the Supreme Court Act excepted from the operation of s 17(1) by s 17(3), none of which has application to the present matter, s 17(1) contains two preclusions. The first is the preclusion from the Act and Rules of the proceedings in the Supreme Court which are specified in the Third Schedule. The second preclusion is a prohibition on a "claim for relief" in the Supreme Court against interlocutory judgments or orders in proceedings of the type specified in the Third Schedule, paras (a1) and (a2), being proceedings for the prosecution of an offender on an indictment and proceedings relating to guilty pleas in committal proceedings, respectively. It is the first preclusion which is relevant to the circumstances presently under consideration, the application before Price J being a proceeding in the Supreme Court. However, the construction of s 17(1) as a whole is relevant to the operation of the first preclusion. 52The effect of the first preclusion in s 17(1) is that the Supreme Court Act and Rules do not apply to proceedings in the Supreme Court which are specified in the Third Schedule. As discussed above, the reference in s 17 to "proceedings in the Court which are specified in the Third Schedule" does not include a proceeding for prerogative relief: see Adler at 334; 340-1. Apart from paras (a1) and (a2), which include a reference to the District Court as well as the Supreme Court, all other paragraphs in the Third Schedule refer only to proceedings "in the Court". "Court" is defined in the Supreme Court Act, s 19 to mean "the Supreme Court". Thus, in addition to proceedings in the Supreme Court referred to in paras (a) and (a1), the Supreme Court Act and Rules do not apply to "gaol delivery": para (b); proceedings in the Court under the Criminal Appeal Act: para (d); proceedings in the Court under the Children (Criminal Proceedings) Act 1987 (which deals with "Criminal proceedings generally" in respect of juveniles charged with offences, including in respect of the commencement of proceedings); or proceedings in the Court under the Habitual Criminals Offenders Act 1957: para (h). 53It is apparent, therefore, that as originally enacted (where s 17(1) contained only the first preclusion and paras (a1) and (a2) were not in the Third Schedule), the purpose and operation of s 17(1) were clear. In the organisation of the Supreme Court's work, there was removed from the operation of the Supreme Court Act and Rules those proceedings in the Court which were specified in the Third Schedule, all of which, by reference to the heading, were criminal matters. As is relevant to this case, the Supreme Court Act and Rules did not apply to an application in the Supreme Court for a certificate under the Costs in Criminal Cases Act. 54As para (i) has remained in the same terms since its enactment, there is no reason why it should have an operation different from the operation that it has had since its inception. Thus, the Court of Appeal, whose exercise of its powers is governed by the Supreme Court Act, including s 48 and s 101, does not have power to hear an appeal from a decision of a Supreme Court judge on an application for a certificate under the Costs in Criminal Cases Act. Accordingly, had the applicant been refused a certificate under the Costs in Criminal Cases Act, there would have been no appeal, whether as of right or by leave, to the Court of Appeal. 55The question in the present case, however, is more particular, namely, whether an interlocutory order made in an application for a certificate under the Costs in Criminal Proceedings Act falls within the first preclusion in s 17(1) so that the Supreme Court Act and Rules do not apply. If the Supreme Court Act and Rules do not apply, no appeal will lie to the Court of Appeal, either as of right or by leave pursuant to s 101, from the order of Price J dismissing the notice of motion. 56There is no express provision in s 17 or the Third Schedule relating to interlocutory orders made in an application for a certificate under the Costs in Criminal Cases Act. Indeed, interlocutory orders in such applications might be thought to be unusual, but as this matter demonstrates, may nonetheless be made. Whether the Supreme Court Act and Rules, by operation of the first preclusion, "do not apply" to interlocutory orders made in such an application depends upon whether an interlocutory order so made is, as a matter of its proper construction, encompassed within the meaning of "proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act", in the Third Schedule, para (i). 57There is no authority directly in point. In our opinion, where legislation provides that a statute has no application to a proceeding of a particular type, then unless there is a specific exception of an aspect of such proceedings, such as interlocutory orders, the reference to the proceeding includes all aspects of it. The whole must be taken as including all its component parts, including interlocutory proceedings. Thus, the Act and the Rules do not apply to an interlocutory order made in an application under the Costs in Criminal Cases Act falling within the first preclusion of s 17. Accordingly, the Supreme Court Act and the Supreme Court Rules do not apply and there is no appeal to the Court of Appeal from the order made by Price J's dismissal of the applicant's notice of motion. As discussed above at [38], Mahoney JA, in Shepherd v Bowen, held that the exclusion from the operation of the Supreme Court Act and Rules effected by s 17(1) of proceedings that fell within para (a) included interlocutory orders made in the course of and as part of such proceedings. A coherent construction of the Third Schedule would require the same reasoning to apply to the other paragraphs in the Schedule, including para (i). 58This conclusion, however, needs to be tested against the construction of s 17(1) as a whole, taking into account the amendment of s 17(1) and the introduction of paras (a1) and (a2) by the 1988 amendments. As explained above, those amendments introduced a second preclusion in respect of interlocutory orders made in specific proceedings, being interlocutory orders made in the proceedings specified in paras (a1) and (a2). The question that arises is whether, as a matter of statutory construction, the inclusion of a specific provision for interlocutory orders in specified proceedings means that s 17(1) should be taken as intending that interlocutory orders made in other proceedings are not precluded from the operation of the Act and Rules. 59If the correct construction of para (i) of the Third Schedule is as stated above, it is arguable that the second preclusion in s 17(1) has no work to do. That is, it could be argued that, if the Supreme Court Act and Rules do not apply to any of the proceedings specified in the Third Schedule, including interlocutory proceedings, the Act and the Rules would not apply to any aspect of the proceedings specified in paras (a1) and (a2) of the Third Schedule. 60The answer to such argument is twofold. First, as identified above, in [47] and [52], the first preclusion does not extend to claims for prerogative relief in respect of paras (a1) and (a2) of the Third Schedule because such claims would not be proceedings in the Supreme Court "for the prosecution of offenders on indictment" or "proceedings ... under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986". Such a claim for prerogative relief would fall within the terms of the second preclusion because the claim for relief is against a judgment or order "for the prosecution of offenders on indictment" or "proceedings ... under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986". As identified at [43] above, the introduction of the second preclusion and the introduction of paras (a1) and (a2) was accompanied by an express legislative intention to exclude an application or appeal from the District Court where such an application or appeal would not lie from the same matter arising in the Supreme Court: see the long title of the Supreme Court (Appeals) Amendment Act. 61This in turn raises the question whether the second preclusion has any relevance to proceedings in the Supreme Court. The answer is likely to be found in the breadth of the second preclusion, in that it precludes any "claim for relief", rather than providing only that the Act and Rules do not apply. "Claim for relief" is defined in the Supreme Court Act, s 19(1) to include, relevantly, "any other claim (whether legal, equitable or otherwise) justiciable in the Court": para (d). As was discussed in Adler, the first preclusion does not extend to any inherent power or jurisdiction of the Supreme Court whose existence is not dependent on the Act and Rules, whereas the second preclusion would have that wider ambit. It may also be that the broader language employed by the second preclusion, in precluding a claim "against" an interlocutory judgment or order given or made in proceedings referred to in paras (a1) and (a2), would cover the potential difficulty identified by Mahoney JA, at [39] above, that an application concerning a proceeding on indictment may not fall within the relevant words of the Third Schedule. 62However, it is not necessary in this matter to decide finally the scope of the second preclusion in s 17(1) and, as there was no argument specifically directed to it, it would be inappropriate to do so. Upon its proper construction, we are of the view that the effect of the first preclusion in s 17(1), having regard to the terms of the provision as a whole, is that the Court of Appeal has no jurisdiction in respect of an interlocutory order made in the course of an application in the Supreme Court for costs under the Costs in Criminal Cases Act. Accordingly, no appeal lies to the Court of Appeal, by leave or otherwise, from such an order. 63We would also add that, in our view, Price J was not correct in finding that the application for costs was a civil proceeding within the meaning of the Civil Procedure Act, s 3.

Does s 5F of the Criminal Appeal Act apply? 64As the applicant had originally filed an application for leave to appeal in the Court of Criminal Appeal, he seeks the Court's determination of that application. This gives rise to the question as to whether an application for costs under the Costs in Criminal Cases Act and the applicant's notice of motion made in that application fall within the Criminal Appeal Act, s 5F. 65The applicant submitted that, although the Director's direction under s 7(2) deprived the Supreme Court of jurisdiction to proceed further on the indictment, the Court's jurisdiction remained, both to discharge him and to determine his costs application. The applicant submitted that the express terms of s 2, which provide that the Court may grant a certificate "in any proceedings relating to an offence" (original emphasis), demonstrated that this was so. 66The Crown contended that an application for costs did not fall with the terms of s 5F, which applies only to "proceedings ... for the prosecution of offender on indictment" (original emphasis). The Crown submitted that there were no relevant proceedings on indictment following the discharge of the applicant by Barr AJ on 1 June 2012. 67The Criminal Appeal Act, s 5F, provides: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, ... (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal ..." 68Section 5F will only apply if the order made by Price J was an interlocutory judgment "given" or "made" "in proceedings for the prosecution of [an offender] on indictment". Whilst we have no doubt that a judge, in deciding whether to grant a certificate under s 2, is exercising judicial power, we consider that there is doubt as to whether in doing so the Court is making an interlocutory order or judgment in proceedings to which s 5F applies. There are no authorities directly on point on this question and to the extent that there are judicial statements touching upon the question, they do not all point in the same direction. 69McColl JA has discussed in detail those cases that indicate that s 5F is engaged and we have been greatly assisted by her Honour's analysis. In particular, our abbreviated observations at [71] are drawn from her Honour's reasons. 70In R v Manley [2000] NSWCCA 196; 49 NSWLR 203 Simpson J, at [67], observed that an application for the grant of a certificate under s 2 was "an independent application authorised by statute". See also Solomons v District Court of New South Wales [2000] NSWCA 99; 49 NSWLR 321 at [22]-[23] per Mason P and [115] per Foster AJA. There are also a series of decisions in the Court of Appeal in which the comment has been made that there is no appeal from a decision under s 2: see Chahal v Director of Public Prosecutions [2008] NSWCA 152 at [55]; AB v DPP (NSW) [2014] NSWCA 122 at [12]. Furthermore, we note that in JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 Basten JA (Beazley P and Ward J agreeing) at [12], described the nature of the determination made under s 2 as involving: "...the expression of an opinion by a judge or magistrate, on the basis of which the Director-General may, on application, make a payment out of consolidated revenue with respect to costs incurred in the proceedings by the party to whom the certificate was granted: s 4(1)." 71Pointing in the other direction were comments made in Solomons v District Court (NSW) [2002] HCA 47; 211 CLR 119. The question in Solomons was whether the Judiciary Act 1903 (Cth), ss 68 and 79 rendered the provisions of the Costs in Criminal Cases Act applicable so as to authorise the grant of a s 2 certificate in the course of the exercise of federal jurisdiction. The majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) assumed for the purposes of the question before the Court that in determining an application under s 2 the Court was exercising "jurisdiction with respect to ... the trial and conviction on indictment". More directly, however, were the observations of McHugh J at [45] and Kirby J at [109] and [123] who described the determination as to whether a certificate should be granted under s 2 as an incidental matter or procedure associated with a criminal trial. 72In circumstances where we have concluded, for the reasons which we now give, that privilege was not waived, we have not found it necessary to finally determine whether the Court has jurisdiction under s 5F. We recognise that if there is no jurisdiction under s 5F, an anomalous position arises in that a decision of a magistrate or District Court judge in determining whether to grant a certificate is judicially reviewable, whereas a determination made by a Supreme Court judge as to whether to grant a certificate under s 2 is not reviewable by way of appeal or otherwise. 73The anomaly may be explained by the fact that magistrates and judges of the District Court are judges of inferior courts whose decisions are judicially reviewable by the Supreme Court. There is no statutory right of review in relation to decisions of such judges any more than there is a statutory right of review in relation to judges of the Supreme Court. The latter, however, are judges of a superior court and when exercising judicial power are not amenable to judicial review by the Court of Appeal. Whether they would be amenable to review by the High Court need not be considered.

Was privilege waived when the legal advising document was handed to the Court? 74The evidence before Price J on the hearing of the waiver motions was set out by his Honour in his judgment [2013] NSWSC 760, as follows: "10 Affidavits of Lloyd Babb, the Director, and John Pickering, a Deputy Director, were read by the Crown. Neither deponent was required for cross-examination. 11 In an affidavit affirmed on 24 October 2012, Mr Babb states that he directed no further proceedings in relation to both applicants for the murder of Ahmed Fahda. Mr Lungo was not involved in any aspect of the prosecution and at no stage prior to 1 June 2012 did Mr Babb have any conversation with Mr Lungo about the matter. Mr Babb was unaware that the matter was listed on that day and that Mr Lungo was to appear. He only became aware that Mr Lungo handed up to the court his direction for no further proceedings when he was told by Mr Pickering what had occurred before Hidden J on 22 August 2012. Mr Babb states at pars 8-10: 'At no stage, prior to 1 June 2012 did I give any express or implied consent to Mr Lungo, to waive my privilege in relation to the document that he handed up in the Supreme Court on 1 June 2012. Pursuant to my Prosecution Guidelines, particularly guideline 18, there are only very limited circumstances where a Crown Prosecutor has a right to waive my legal professional privilege without my express consent. None of those limited circumstances existed in this case. Had I been aware that Mr Lungo intended to hand up the document that he did on 1 June 2012, I would have immediately indicated to Mr Lungo that the document was privileged and I would not be waiving such privilege.' 12 In an affidavit sworn 24 October 2012, Mr Pickering states that he had provided 'a legal advising report' relating to the possibility of no further proceedings being directed in relation to both applicants for the murder of Ahmed Fahda. Subsequently Mr Babb directed that there be no further proceedings and wrote that direction on page 6 of the legal advice report. Mr Pickering states that Mr Lungo was not involved in any aspect of the applicants' prosecution and provided no legal advice to him in relation to his advice to Mr Babb. Mr Pickering was unaware that the matter was listed before the Supreme Court on 1 June 2012 and that Mr Lungo was to appear. Mr Pickering states at pars 7-9: 'At no time prior to Mr Lungo appearing in Court on 1 June 2012 did I have any conversation with Mr Lungo about the matter of Naseam El Zeyat (sic) and Ramzi Aouad. I am now aware that Mr Lungo, on 1 June 2012, in the Supreme Court in Sydney, handed up to the Court page 6 of my advice report that also contained the direction for no further proceedings by Mr Babb. I only became aware that Mr Lungo had handed up this document in Court after Justice Hidden advised myself in the Supreme Court on 22 August 2012, that this document was on the Court file, and he subsequently handed two copies of page 6 down to me. I have maintained custody of those two copies since. At no stage, prior to 1 June 2012 did I give any express or implied consent to Mr Lungo, to waive my privilege in relation to the document that he handed up in the Supreme Court on 1 June 2012.' 13 Mr Pickering states that if he had been aware that Mr Lungo intended handing up page 6, he would have immediately indicated to Mr Lungo that the document was privileged and he would not be waiving such privilege under any circumstances." 75Price J held that the document handed to Barr AJ was privileged, in that it was a confidential communication made for the dominant purpose of the Deputy Director providing legal advice to the Director about pending proceedings, namely, the retrial of the applicant on indictment following the quashing of his conviction by the Court of Criminal Appeal. His Honour held, therefore, that both ss 118 and 119 of the Evidence Act 1995 (NSW) were engaged unless privilege had been waived. 76In considering whether privilege had been waived, Price J observed, at [34] and [35], that the loss of client legal privilege was governed by the Evidence Act, s 122 and by common law principles: see Mann v Carnell [1999] HCA 66, 201 CLR 1; Cooper v Hobbs [2013] NSWCA 70. His Honour noted that it was for the applicant to establish that privilege had been waived: see R v Petroulias (No 24) [2007] NSWSC 783 at [9] per Johnson J. 77His Honour next referred to the provisions of s 122, as well as to the common law principle that the benefit of legal professional privilege could be waived by a client and that waiver could be express or implied: see Mann v Carnell at [28]-[29]. His Honour at [38], continued that consent under s 122(1) includes consent that would be imputed to the client on the same principles that apply at common law to the question of waiver, even though the client did not subjectively intend to waive privilege: see Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297 at [29]-[33]; Petroulias (No 24) at [37]. 78His Honour then had regard to the functions and powers of the Director pursuant to the Director of Public Prosecutions Act, the functions of the Crown Prosecutor pursuant to the Crown Prosecutors Act 1986 (NSW), and the relationship between the Director and the Crown Prosecutor. His Honour observed that under the Crown Prosecutors Act, s 5(3), a Crown Prosecutor expressly does not have the function of determining that no bill of indictment be found, or of directing that no further proceedings be taken against a person. That function resided solely in the Director. His Honour also observed, at [44], that when a Crown Prosecutor appears in court on behalf of the Director, the Crown Prosecutor provides legal services for the Director, who is the client. 79Price J, having noted that the procedure for the entry of a nolle prosequi was normally effected by a simple memorandum on the indictment by the Attorney General or an authorised person, observed, at [43], that the evidence provided no explanation as to why the Crown Prosecutor had handed the last page of the legal advising report to the court. His Honour stated that the Director had not authorised the Crown Prosecutor to hand the document to Barr AJ and that the Director was not aware that the Crown Prosecutor intended to do so. 80His Honour also referred, at [45], to the Guidelines of the Office of the Director of Public Prosecutions. Guideline No 12 indicated that the disclosure of reasons for decisions made in the course of prosecutions or in giving advice remained the province of the Director. His Honour observed that Guideline No 18 also stated that notwithstanding the duty of disclosure required of a prosecutor in the conduct of a trial, any document in the nature of an internal advice would normally be subject to a claim of privilege. His Honour noted that there was nothing in that Guideline that permitted the Crown Prosecutor, who appeared before Barr AJ, to waive privilege in respect of any part of the Director's legal advice report. Thus, in short, the Crown Prosecutor appearing on that day had neither the express nor the implied consent of the Director to disclose the document. 81His Honour observed, at [46]: "It does not matter that another lawyer in the Director's office may have given consideration to page 6 of the advice being handed up to the Judge. The privilege could only be waived by the Director. There is no inconsistency between the Director's conduct and the maintenance of the confidentiality. The handing up of the document was not authorised by the Director and in the circumstances he cannot be deemed to have consented, nor can consent to waiver be implied." 82His Honour concluded, therefore, that client legal privilege had not been waived when the document was handed by the Crown Prosecutor to Barr AJ. 83The applicant challenges his Honour's determination that privilege had not been waived on two bases. First, he contended that, contrary to his Honour's reasoning, the provisions of the Evidence Act did not apply. Secondly, the applicant challenged his Honour's conclusion that privilege had not been waived at common law.

Did his Honour err in relying on the Evidence Act provisions? 84The applicant's argument on the appeal, that his Honour erred in his reliance on the Evidence Act provisions governing privilege and its waiver, was advanced on the basis that the Evidence Act provisions are premised upon evidence being adduced. The applicant contended that this was not the position here, as in his notice of motion he was seeking access to a document that was on the court file. The applicant further contended that the provisions of s 131A did not apply as the document was not produced pursuant to a "disclosure requirement" within the meaning of that section, or pursuant to any obligatory court process. It followed that the question whether privilege had been waived had to be determined on the basis of common law principles. 85The Crown pointed out that the applicant had not contended before Price J that the Evidence Act did not apply and thus should not now be permitted to contend that it does not. The Crown further submitted that, in an earlier submission, the applicant had stated that the document handed to Barr AJ was relevant to the application for costs and that in that application, "it could be expected that [the applicant] would rely, at least in part, upon the DPP document now filed with the Court papers". The Crown submitted that the submission was predicated upon evidence being adduced. The Crown submitted that, in any event, his Honour had determined the matter in accordance with common law principles. 86For reasons which are explained below, the question whether the Evidence Act applies will not affect the outcome in this case. However, as the issue was raised by the applicant, it is appropriate to deal with it briefly. 87There is no dispute that the contents of the last page of the legal advising report were privileged. Pursuant to s 118, if a client objects, evidence is not to be adduced if the court finds that adducing the evidence would result in the disclosure of a confidential communication between a lawyer and a client for the dominant purpose of the lawyer providing legal advice to the client: s 118(a). Section 119 provides, relevantly, that evidence is not to be adduced if, on objection by the client, the court finds that adducing the evidence would result in the disclosure of the contents of a confidential document prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian proceeding: s 119(b). 88There was no requirement for formal proof of the Director's decision in order for the court to act upon a direction made under the Director of Public Prosecutions Act, s 7(2)(b). Barr AJ could have discharged the applicant upon being informed orally of the Director's decision by a representative of the Director. At the time that the document was handed to the court, Barr AJ was not engaged in a hearing, nor was any evidence required or adduced. The document was not marked as an Exhibit, nor was it provided to the applicant. At the point where it is alleged that privilege was waived, ss 118 and 119 of the Evidence Act were therefore not engaged. Accordingly, subject to the application of s 131A, no question of waiver or privilege arose under the Evidence Act. We should add that ss 118 and 119 were also not engaged in the application before Price J as the last page of the legal advising report was not sought to be adduced in evidence on that application. 89The Crown submitted, however, that s 131A applied. In particular, the Crown contended that: "... the terms of the amended order seeking production of the document pursuant to s 133 of the Evidence Act ... compelled the application of Part 3.10 (Client Legal Privilege) due to the provision of s 131A ..." 90Section 133 provides that if a question arises under the privilege provisions in Pt 3.10 relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question. In the present case, Price J considered that it was not necessary that he see the document and he made no order for its production. Section 131A was not, therefore, engaged. 91Nor, in our opinion, did s 131A otherwise have application. That section governs claims for client legal privilege pursuant to a disclosure requirement, as identified in the section, to give information or to produce a document. Disclosure requirements include the requirement to produce documents pursuant to subpoena, pre-trial discovery, interrogatories, notices to produce and the like. In his amended application, the applicant sought an order that he have immediate access to the document handed to the court on 1 June 2012 or have leave to file a notice to produce returnable immediately seeking the production of the document. However, an application to the court for access to the document in the terms sought by the applicant, including his application for leave to serve a notice to produce, does not fall with the meaning of a disclosure requirement. The position may be contrasted with a subpoena, which operates as an order of the court to produce documents or to attend to give evidence. Likewise with a notice to produce, which requires, of its own force, the production of documents to the court. In the present case, the applicant was seeking an order that the document be produced or, alternatively, that leave be granted to serve a notice to produce. The Crown was not, at the point of the court's hearing the applicant's notice of motion, subject to any disclosure requirement. 92But even if the notice of motion and the orders sought therein could be characterised as falling within s 131A, such that it was incumbent upon his Honour to determine, in accordance with s 122, whether privilege had been waived, there was no error in his Honour's observation that consent for the purposes of s 122 includes consent imputed to a client at common law. We observe, however, that whilst the authorities to which his Honour referred, namely, Chen and Petroulias (No 24), support his Honour's conclusion, those decisions predated the amendment to s 122(2) effected by the Evidence Amendment Act 2007 (NSW), s 3 and Sch 1, cl 57. The Explanatory Memorandum to that Act relevantly stated: "Loss of client legal privilege Section 122 of the Principal Act currently provides that client legal privilege is lost by consent or if a client or party knowingly and voluntarily discloses the substance of the evident. Schedule 1 [57] replaces section 122 with a new section that is aligned more closely with the common law test for loss of privilege set out in Mann v Carnell ... It implements recommendation 14-5 of the [Uniform Evidence Law: Report (2005)] New section 122 provides that evidence may be adduced if the client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege." 93The new subsection appears to be a clear adoption of the common law principles discussed in Mann v Carnell, although the provision is not identical with the formulation of the common law principle in that case: see Stephen Odgers, Uniform Evidence Law (11th ed 2014, Thomson Reuters) at [1.3.11040] ff, particularly at [1.3.11070]. However, a unanimous High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 stated, at [32], that the same considerations relating to waiver at common law equally apply to s 122(2). We discuss those principles below.

Was privilege waived at common law? 94The applicant contended that having regard to the following matters, his Honour erred in his determination that legal professional privilege had not been waived. 95First, he submitted that the Crown Prosecutor, in acting as the legal representative of the Director, and within the scope of his functions as defined by the Director of Public Prosecutions Act and the Crown Prosecutors Act, had voluntarily and intentionally, and without any obligation to do so, handed the document to Barr AJ to be placed on the court file. 96Secondly, the court file was a public record accessible by parties to the proceedings and even to non-parties with the leave of the court, so that had the file been accessed, the document would have been available for anyone to see. 97Thirdly, it was relevant that the costs application was foreshadowed on the same day as the court was informed that no further proceedings were being taken on the indictment and was listed for hearing on a later date. Neither at that point nor subsequently did the Crown Prosecutor seek the return of the document. The document was returned to the Crown by Hidden J after he had located it on the court file. The applicant submitted that the intentional filing of the document was accordingly inconsistent with the maintenance of any confidentiality and thus privilege was waived. 98The applicant submitted that this was not a case where a privileged document has been mistakenly produced to another party, but that even in that circumstance, privilege may be lost. The applicant referred to the decision of the Court of Appeal in Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430. The applicant submitted that the mere fact the Director, as the client of the Crown Prosecutor, now took issue with the Crown Prosecutor's conduct in providing the document to the court, was not to the point. Privilege had already been waived because of the intentional conduct of the Crown Prosecutor who, in providing the document to the court, was acting within the scope of his statutory functions. 99The Crown accepted that the question whether privilege had been waived at common law was whether the person entitled to rely on the privilege had acted in a manner that was inconsistent with the maintenance of the confidentiality which underpins the privilege, the focus being on the conduct of the person, not upon that person's subjective intentions: see Mann v Carnell at [29]. The Crown submitted that the intention in the document being handed up to the court was to provide confirmation of the Director's direction. 100The Crown further submitted that the fact that the document was not provided to the applicant was consistent with the maintenance of confidentiality and was inconsistent with waiver. The Crown referred to the decision of Australian Competition and Consumer Commission (ACCC) v Cathay Pacific Airways Ltd [2012] FCA 1101; 207 FCR 380, where inadvertent disclosure in the context of discovery was held not to constitute waiver. Nor was this a case of selective disclosure, so as to be inconsistent with the maintenance of privilege, as there was no misleading or unfair impression given to the applicant in handing up the document to Barr AJ. 101The Crown also refuted the applicant's assertion that the Crown Prosecutor was acting within the scope of his statutory functions when he handed the document to the court.

Consideration 102The question of waiver of privilege was considered recently by the High Court in Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing, where the Court unanimously reversed the decision of the New South Wales Court of Appeal, to which the applicant referred in his submissions: see above at [98]. The case involved the inadvertent disclosure of privileged documents during the course of discovery. The opposing party did not contest that the documents had been inadvertently disclosed, but contended that by the disclosure privilege had been waived. 103In the High Court's view, at [63], there was in reality no question of waiver sufficient to be agitated before the court. In circumstances where there had been no contest to the claim of inadvertence, the Court considered that any allegation of waiver turned on a legal, technical argument tangential to the main proceedings, and should not have been made. The Court's criticism of the respondent in alleging waiver was based in part upon the obligations of parties to civil litigation imposed by the Civil Procedure Act, ss 56-60. However, it was also significant to the Court's reasoning that the documents had been produced in the course of discovery. As the Court explained, at [45], although discovery is an inherently intrusive process in litigation, it is not intended to affect a person's entitlement to maintain the confidentiality of documents where the law allows. Their Honours stated that it followed that: "... where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of that mistake and order the return of the document, if the party receiving the documents refuses to do so." 104The present case involves criminal proceedings and an application for costs in respect of those proceedings. Accordingly, the High Court's comments, insofar as they were based upon the processes involved in the conduct of civil litigation and the provisions of the Civil Procedure Act, have no application in this case. Nonetheless, the Court's view that, in reality, there had been no waiver, requires further consideration, having regard to the circumstances under consideration here. 105In coming to its determination that the documents should be returned, the High Court, at [30], stated: "According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege) [Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; 28 CLR 305 at 326; [1920] HCA 64; Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641 at 658]. It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law [Goldberg v Ng [1995] HCA 39; 185 CLR 83 at 95-96] with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect [Mann v Carnell ... at 13]." 106The Court continued, at [31]: "In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that ''[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating''. In Mann v Carnell, it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though 'not some overriding principle of fairness operating at large.'" (Citations omitted) 107In Mann v Carnell, referred to by the High Court in the passage just quoted and to which Price J referred, the plurality, Gleeson CJ, Gaudron, Gummow and Callinan JJ, observed, at [29]: "Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law'. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. ...What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large." (Citation omitted) 108In Goldberg v Ng, to which the High Court also referred in the passage cited above, at [105], a solicitor, Mr Goldberg, had provided privileged documents to the Law Society in the course of responding to a complaint made by former clients, whose proceedings in which Mr Goldberg had acted for them, had been compromised. Notwithstanding that the solicitor purported to maintain the confidentiality of the documents when providing them to the Law Society, the High Court by majority held that, for the purposes of legal proceedings commenced by the clients against the solicitor, privilege had been waived. 109Deane, Dawson and Gaudron JJ, at 95, observed that the circumstances in which waiver of privilege would be imputed by operation of law could not be precisely defined in advance. In concluding that privilege had been waived, the majority considered that it was relevant that the solicitor had voluntary disclosed the material and had done so for the purpose of assisting the solicitor in his response to the Law Society. 110In the course of their reasoning, their Honours referred to Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475. In that case, the High Court observed that in order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter. 111However, as the majority pointed out in Mann v Carnell, at [29], whether privilege has been waived is not determined by the application of some broad test of fairness. Waiver will be imputed to a party whose inconsistent conduct in relying on a portion of a document gives a misleading or inaccurate perception of the communication. It is an example of a person impermissibly approbating and reprobating: see Expense Reduction at [31].

Was there imputed waiver in this case? 112In the present case, it was for the applicant to establish that privilege had been waived. That required the applicant to establish that there was an intentional act, done with knowledge, whereby the Director abandoned the privilege by acting in a manner inconsistent with that right: see Expense Reduction at [30]. In our view, waiver in this sense has not been proved. 113Alternatively, the applicant was required to establish that waiver was imputed by law, even though the Director did not intend to waive privilege. For the law to impute waiver, the applicant was required to establish that the actions of the Crown Prosecutor in handing the document to the judge to place on the file "was plainly inconsistent with the maintenance of the confidentiality": see Expense Reduction at [30]. In determining this question, the court will consider whether there is any unfairness in the privilege being maintained. In this regard, the court will consider whether, by the conduct said to constitute waiver, the person claiming the privilege has 'approbated', such that the court will not countenance the person 'reprobating'. 114In the present case, the document was not produced to the court pursuant to a compulsory process. The document was given to the court as part of the process of informing it of the Director's direction pursuant to the Director of Public Prosecutions Act, s 7. It was not necessary for the court to have any form of written notice of the Director's decision. In particular, there was no requirement that the reasons of the Director for making the direction pursuant to s 7 be disclosed to the court, to the defendant in the criminal proceedings, or to any other person. 115At the time the document was provided to Barr AJ, it was not shown to the applicant's legal representatives and they did not request to see the document. Although the document was placed on the court file without any request that it be marked as confidential, it is implicit in the submissions of the applicant that he had not sought to have access to the Court file prior to the matter being listed before Hidden J on 22 August 2012. Accordingly, the applicant does not know the contents of the document. 116As the authorities indicate, waiver involves an intentional abandonment of a right. The exercise of a right involves a position taken as against or in relation to another party. It can be inferred from the evidence that the document was provided to the court for the specific purpose of informing it in written form of the Director's direction pursuant to s 7(2). The portion of the document containing the Director's reasons was not relevant to that purpose. Significantly, there is nothing in the transcript to indicate that there was any use of, or reliance upon, the privileged portion of the document by the Crown Prosecutor. 117As Price J accepted, the Director, or a person authorised by him, was the only person who could waive privilege. On the Director's evidence, he had not given any authority to the Crown Prosecutor to waive privilege. Clearly, the Crown Prosecutor was the Director's agent for the purpose of informing the court that the Director had made a direction pursuant to the Director of Public Prosecutions Act, s 7(2). To that extent, he had actual authority. An agent's actual authority may include such authority as is implied by the nature and terms of that actual authority conferred on the agent by the principal. 118The scope of an agent's implied authority in a particular case will depend upon what is necessary or incidental to the performance of the express terms of the agency: see Cassar v NSW Crime Commission [2014] NSWCA 356 at [57]. As identified by Price J, in the present case, the right to waive privilege was neither necessary nor incidental to the Crown Prosecutor's task of informing the court that the Director had made a direction under s 7(2). Accordingly, we consider that the Crown Prosecutor did not have implied authority to waive privilege. 119The applicant contended, however, that the Crown Prosecutor had apparent authority to waive privilege. In general terms, the scope of an agent's apparent authority is that which the principal represents or holds out to third parties: G D Dal Pont, Law of Agency (3rd ed 2013, LexisNexis Butterworths), [8.1]. Apparent authority is to be contrasted with the actual authority of an agent, although an agent may have both implied and apparent authority. It is well established that a legal practitioner has implied and apparent authority to compromise proceedings: Waugh v HB Clifford & Sons Ltd [1982] Ch 374 at 387. However, we are of the opinion that the implied and apparent authority to compromise proceedings does not carry with it the authority to disclose privileged information. 120In our opinion, having regard to the circumstances in which the document was handed to the court, the Crown Prosecutor's actions were not "plainly inconsistent" with the maintenance of confidentiality. 121The Court makes the following order: Application for leave to appeal dismissed. 122McCOLL JA: This case concerns the question whether either the Court of Appeal or the Court of Criminal Appeal has jurisdiction to entertain an appeal by Naseam El-Zayet from an interlocutory decision of Justice Price given in the course of his Honour hearing an application for a costs certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the "Costs Act"): Aouad v R; El-Zayet v R [2013] NSWSC 760 ("El-Zayet 1"). 123The background facts are set out in the joint judgment which I have had the advantage of reading in draft. I will only repeat, or supplement, that background to the extent necessary to explain my reasons. 124I agree with the conclusion in the joint judgment (at [62]) that there is no appeal to the Court of Appeal from El-Zayet 1. I do not, however, with respect, agree that there is no avenue of appeal or review available to Mr El-Zayet in respect of that decision. In my view, the Court, having been constituted as the Court of Criminal Appeal, has jurisdiction to entertain Mr El-Zayet's application for leave to appeal from El-Zayet 1, it being an interlocutory judgment given in proceedings for the prosecution of offenders on indictment in the Supreme Court pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) (the "CAR Act"). 125In exercise of that power, I would grant Mr El-Zayet leave to appeal from El-Zayet 1. However, I agree with the joint judgment that the Director of Public Prosecutions did not waive privilege in respect of the document upon which the Director had written a direction that no further proceedings be taken against Mr El-Zayet. Accordingly the appeal should be dismissed.

Statement of the case 126Mr El-Zayet (and Mr Aouad) had been arraigned on an indictment charging them with the murder of Ahmed Fahda. On 30 May 2012 the respondent directed that there be no further proceedings in relation to the charges. The matter was listed on 1 June 2012 in the Supreme Court's Arraignment List for the purpose of formally entering a nolle prosequi in relation to all counts on the indictment. On that day, the following occurred (El-Zayet 1 (at [5])): "[5] Mr L Lungo, a Crown Prosecutor, appeared for the Crown and Ms Spence appeared for both the applicants when the matters were mentioned on 1 June 2012 before Barr AJ. The transcript reveals that Mr Lungo said: 'Your Honour, there has been a direction by the Director that there be no further proceedings in relation to both accused and, your Honour, can I hand up a document to be filed with the court file.' [6] His Honour discharged the applicants. Ms Spence told the court that a cost application was foreshadowed. The application for costs was subsequently listed before Hidden J on 22 August 2012 and was opposed by the Crown." 127Barr AJ then adjourned the proceeding. No formal step was taken to initiate the costs application. Rather, it appears it was taken to have been made by the oral advice to the Court on 1 June 2012 followed by, I assume, confirmation of that fact to the court which listed the application for hearing before Hidden J in the circumstances outlined in the joint judgment. The transcript of the proceedings before Hidden J on 22 August 2012 records the hearing as taking place in the "Criminal List" of the Common Law Division. The "Criminal List" annotation did not appear on the transcript of the hearing before the primary judge, but the file numbers are the same as those of the matters listed before Hidden J. Indeed, they are the same file numbers as those allocated to Mr El-Zayet's (and Mr Aouad's) successful appeals to the Court of Criminal Appeal against his conviction for the charge of murder in respect of which the nolle prosequi was ultimately entered: see Aouad and El-Zeyat v R [2011] NSWCCA 61. The same file numbers appear on El-Zayet 1 and on the judgment dealing with the costs orders consequent upon the ruling in El-Zayet 1: Aouad v R; El-Zayet v R (No 2) [2013] NSWSC 991 ("El-Zayet 2"). 128The decision in El-Zayet 1 was delivered on 14 June 2013. On 27 June 2013 the applicant filed an application for leave to appeal pursuant to the CAR Act against El-Zayet 1 (the "CAR application"). On 28 June 2013 he filed a notice of intention to seek leave to appeal to the Court of Appeal purportedly in accordance with Uniform Civil Procedure Rules 2005 (NSW) r 51.8. The summons seeking leave to appeal to the Court of Appeal was filed on 12 September 2013. It was that summons which was before the Court on 26 March 2014 when the issue of jurisdiction arose. Needless to say it was allocated a Court of Appeal file number. The status of the CAR application is not apparent from the papers. There is no suggestion, however, that it has been disposed of in the Court of Criminal Appeal.

Statutory framework 129Section 2 of the Costs Act relevantly provides: "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, 'trial', in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire." (Emphasis added) 130Section 2 was amended by the Courts Legislation Miscellaneous Amendments Act 2002 (NSW) (Sch 4.2), to add the emphasised clause in s 2(1)(a) to "remove a doubt that had arisen as to whether a certificate could be granted in such cases due to differences in terminology between the Costs in Criminal Cases Act and the Director of Public Prosecutions Act 1986": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002 (at 5752). 131Reference should be made to other provisions of the Costs Act. Section 3(1) requires a s 2 certificate to: "(1) ... specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." (Emphasis added) 132Section 3A (Evidence of further relevant facts may be adduced) provides: "(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1)(a) to 'all the relevant facts' is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person." (Emphasis added)" 133Section 4 relevantly provides: "4 Payment of costs (1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. (2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). (3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant: (a) has received or is entitled to receive, or (b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, because of the applicant's having incurred those costs. (4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable. (5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3). (6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act." (Emphasis added) 134The CAR Act relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and ... (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 135The following definitions in s 2 of the CAR Act appear relevant: "Court of trial" means any court from whose finding, sentence, order, or other determination, a person is by this Act entitled to appeal or to apply for leave to appeal. "The appellant" includes a person who has been convicted and desires to appeal under this Act". (Emphasis added) The nature of a section 2 application 136In order to determine the jurisdiction question, it is necessary to examine the nature of an application under s 2 of the Costs Act. 137The Costs Act was enacted to displace the "old rule ... that the Crown neither receives nor pays costs ... notably in criminal proceedings" (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (at 538) per Mason CJ; (at 557) per Dawson J (Brennan J agreeing)) and "to repair the perceived injustice of the common law": Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 ("Solomons") (at [73]) per Kirby J. It is "reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes": Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; (2007) 171 A Crim R 510 ("Mordaunt") (at [36]) per McColl JA (Beazley and Hodgson JJA agreeing). 138The power conferred by s 2 "was clearly intended to be conferred on all New South Wales courts, at whatever level, exercising criminal jurisdiction": R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 ("Manley") (at [55]) per Simpson J (Wood CJ at CL agreeing); cited with apparent approval in Solomons (at [9]) per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. 139The grant of a certificate under s 2 of the Costs Act satisfies "a necessary precondition for the exercise by a State officer of the discretions conferred by s 4, the favourable exercise of which may result in the making of a payment from the Consolidated Fund of the State": Solomons (at [15]) per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, (at [51]) per McHugh J. Sections 2 and 3 confer both jurisdiction and power on the Court to which an application for a s 2 certificate is made: Solomons (at [42] - [43] per McHugh J; Mordaunt (at [35]); AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 ("AB") (at [56]) per Sackville AJA (Adamson J agreeing). 140Section 3(1) sets out "the preconditions to the exercise of the discretionary power to award a certificate ...[and] serves the dual function of stating what should be specified in the certificate and, impliedly, the necessary preconditions to the exercise of the power": AB (at [4]) per Basten JA. 141Section 3A(2) makes "[l]imited provision ... for the constitution of the application as a lis inter partes": Solomons (at [11]) per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. Thus, the applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing). However, the judicial officer dealing with an application for a certificate need not be the trial judge or, as in the instant case, the judge before whom the matter was listed to enter the nolle prosequi: Manley (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons (at [8] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; at [47] footnote (80) per McHugh J; at [106] per Kirby J). 142A number of the factors relevant to the exercise undertaken when an application is made for a s 2 certificate were set out in Mordaunt (at [36]). In addition to those already mentioned, of these the most germane are 36, (f) and (m) which explain the task of the court considering the application as follows: "(e) The task of the court dealing with an application under the [Costs] Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 - 560); the judicial officer considering an application must find what, within the Act, were 'all the relevant facts' and assume the prosecution to have been 'in possession of evidence of' all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, 'it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue': Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the [Costs] Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9])... ... (m) Section 3 calls for an objective analysis of the whole of the relevant evidence [sic, facts], and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed)..." 143An application for a s 2 certificate would ordinarily enliven the obligation to give adequate reasons: Ramskogler v Director of Public Prosecutions (NSW) (1995) 82 A Crim R 128 (at 141) per Handley JA; see also (at 135, 138) per Kirby P (Sheller JA agreeing). Such an obligation is an incident of the necessity to facilitate appellate review: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (at [56]) per McColl JA (Ipp JA and Bryson AJA agreeing).

The s 2 jurisdiction 144As the joint judgment has explained (at [26]) it is common ground that the decision by the Director that no further proceedings be taken was made "after the commencement of a trial in the proceedings" so that the applicant was entitled to make an application under the Costs in Criminal Cases Act as held in JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 ("JC"). 145In Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 (at [33]) French CJ, Hayne, Crennan, Kiefel and Bell JJ held, quoting R v GKA (1998) 99 A Crim R 491 (at 496) ("GKA") per Cole JA (Gleeson CJ and Barr J concurring), that "once the Director's direction under s7(2)(b) was communicated to the court, the court was deprived of power to proceed further 'upon the current indictment'". In my view that statement does not answer the question as to the jurisdiction of this Court, constituted as the Court of Criminal Appeal, to entertain a challenge to an interlocutory decision of a Supreme Court judge made in the course of a s 2 application. 146The text of the Costs Act supports the conclusion that a court with jurisdiction to deal with a defendant for an offence referred to in s 2(1) has power, as an incident of that jurisdiction, to entertain a s 2 application. As is apparent from the passages of the Costs Act emphasised earlier in these reasons, the s 2 jurisdiction is enlivened "in any proceedings" relating to an offence once one of the triggering events in s 2(1)(a) or (b) occurs. If a s 2 application is successful, the certificate granted specifies "the matters referred to in section 3 and relating to those proceedings". The inquiry to which the application is directed is as to the reasonableness of instituting "the proceedings": s 3(1)(a). It addresses the hypothetical question referred to in Mordaunt (at 36, see [142] above), by reference to the "relevant facts" which include those "established in the proceedings" (s 3A(1)(a)) and those which relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and were not adduced in the proceedings: s 3A(c). If granted, the s 2 certificate founds an application pursuant to s 4 for payment from "the Consolidated Fund of costs incurred in the proceedings to which the certificate relates". 147Thus, from beginning to end, the process of a s 2 application is founded on an event which occurred in the proceedings relating to any offence in which the applicant was the defendant, and focuses on the events concerning their institution and continuation (s 3) to determine whether a certificate should be granted. This conclusion finds support in Solomons. 148In Solomons the High Court considered the question whether s 68 or s 79 of the Judiciary Act 1903 (Cth) rendered the provisions of the Costs Act applicable so as to authorise the grant of a s 2 certificate in the course of the exercise of federal jurisdiction following Mr Solomons' trial and acquittal in a New South Wales State court, on an indictment charging offences under a law of the Commonwealth. The High Court answered that question in the negative, affirming the decision of this court: Solomons v District Court of New South Wales & Ors [2000] NSWCA 99; (2000) 49 NSWLR 321 ("Solomons CA") (Mason P and Foster AJA; Sheller JA dissenting). In the course of their reasons the Court made observations concerning the exercise and nature of the s 2 power. 149Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ were prepared to assume both that "in entertaining [following an acquittal by direction] with respect to a State prosecution an application under s 2 of the Costs Act, a State court would be exercising jurisdiction, in the opening words of s 68(2) of the Judiciary Act, which was 'with respect to ... the trial and conviction on indictment' of a person charged with an offence against State law" and that "an application under s 2 of the Costs Act, after verdict and before judgment, is made when the jurisdiction with respect to the prosecution is not exhausted": Solomons (at [18]). 150McHugh and Kirby JJ each held that the trial court did not lose jurisdiction the moment, for example, a person was acquitted. Although their Honours' remarks were made by reference to the language of s 68(2) of the Judiciary Act ("with respect to ... the trial"), they have force in relation to circumstances which may arise after the occurrence of any of the events referred to in s 2(1) of the Costs Act. 151McHugh J found (Solomons at [45]) that authority to grant a certificate under s2 of the Costs Act was jurisdiction with respect to the trial on indictment of the appellant because there was a "discernible and rational link" between the trial and such an application. His Honour also held (at [47]) that the "matter" was "not at an end because the court has settled the controversy that is central to the matter" and that, "[i]nevitably, incidental matters and procedures may remain alive". 152Kirby J also rejected the submission that the jurisdiction of the District Court had expired by the time the s 2 application was made because, once Mr Solomons was acquitted, that Court was no longer exercising jurisdiction with respect to "the trial and conviction on indictment" (for the purposes of s 68(2) of the Judiciary Act) of a person charged with a federal offence: Solomons (at [94]). In his Honour's view, notwithstanding the relevant s 2(1) qualifying event, such as acquittal, having occurred, s 2 contemplated that the costs application was made "in [the] proceedings relating to any offence": Solomons (at [105]). 153Thus, it was inconsistent with the language of s 2 of the Costs Act to treat the application "as being disconnected from, and subsequent to, the proceedings simply because the applicant has been acquitted": Solomons (at [105]). Accordingly, for the purposes of the Costs Act, "such 'proceedings' remain extant so that consideration can be given to the exercise of the discretion enlivened by the application for the certificate": Solomons (at [106]). The scheme of the Costs Act is that because the application is determined in the trial proceedings, it is "incidental or adjunct to them": Solomons (at [109]; see also at [123]). 154Kirby J said (Solomons at [109]) that his conclusion that a s 2 application was incidental or adjunct to the trial proceedings meant he rejected the contrary view of the majority in this Court in Solomons CA: see Mason P (at [21]; Foster AJA (at [113] - [115])). Mason P and Foster AJA's respective conclusions were expressed by reference to whether an application for the grant of a certificate under the Costs Act was "with respect to" any part of federal jurisdiction invested by s 68. Neither, with respect, considered the text of the Costs Act and the significance of the multiple references to the application being made, and considered, in connection with "the proceedings". Further, their Honours' reasons on this issue were rejected by McHugh and Kirby JJ in seriously considered dicta. I do not, with respect, regard the majority's views in Solomons CA on this issue as militating against applying McHugh and Kirby JJ's observations on the relationship between a s 2 application and the trial. Their Honours' conclusions support the textual construction of the Costs Act I consider is open, that a s 2 application is made as an incident of the proceedings relating to an offence punishable upon indictment referred to in the chapeau to s 2. 155Although, of course, procedure cannot govern the substantive resolution of the issue, it does appear that until the summons was filed in the Court of Appeal, the s 2 application was being treated as having been made in the criminal proceedings in which Mr El-Zayet had been arraigned. Treating it in that manner is consistent with McHugh J's statement in Solomons (at [42]) that the jurisdiction of the court before which Mr El-Zayet was arraigned "was not only the authority to decide the 'matter' involved in an indictment alleging an offence against State law [but] also included the authority to decide an application under s 2 of the Costs Act". 156Thus, in my view, the jurisdiction of the Supreme Court enlivened by Mr El-Zayet's arraignment (see s 130, Criminal Procedure Act 1986 (NSW) and generally the discussion in JC v Director of Public Prosecutions (NSW) (at [15]ff) per Basten JA (Beazley P and Ward JA agreeing) continued notwithstanding the entry of the nolle prosequi so that the court had power to entertain his s 2 application in those "proceedings". As those proceedings were "proceedings ... for the prosecution of offenders on indictment in the Supreme Court", they fell within the meaning of s 5F of the CAR Act. It follows that I disagree, with respect, with Price J's conclusion (El-Zayet 2 (at [11])) that the s 2 application was a civil proceeding within the meaning of s 3 of the Civil Procedure Act 2005 (NSW) (the "CP Act"). Rather, because the application is made in the proceedings against the defendant for an offence (s 2, Costs Act) they fall within the chapeau to the definition of "criminal proceedings" in s 3 of the CP Act. 157The next question is whether the decision in El-Zayet 1 was an "interlocutory judgment or order given or made in the proceedings": s 5F(3). In my view it was. 158An interlocutory judgment or order for the purposes of s 5F(3) is "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court": R v Steffan (1993) 30 NSWLR 633 (at 636); approved and applied in Cheikho v R [2008] NSWCCA 191; (2008) 75 NSWLR 323 (at [32]) per Spigelman CJ (Barr and Fullerton JJ agreeing). El-Zayet 1 determined Mr El-Zayet's notice of motion, which the primary judge ordered be dismissed with costs, an order which in the ordinary course, would have been entered in the court's records. It did not finally determine his s 2 application which awaits resolution. 159Accordingly, El-Zayet 1 determined an identifiable or separate part of the proceedings, namely whether the primary judge ought accede to the amended notice of motion seeking access to the document the DPP had handed up in court. In my view El-Zayet 1 constituted an interlocutory judgment made in proceedings for the prosecution of offenders on indictment in the Supreme Court within the meaning of s 5F(1)(a) of the CAR Act such as to attract the jurisdiction conferred by s 5F(3) to appeal by leave to the Court of Criminal Appeal. 160In considering the question of jurisdiction, it should be borne in mind that "rights of appeal are not narrowly confined": Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783 (at [46]) per Basten JA (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing); Solomons (at [104]) per Kirby J. The conclusion that an appeal, albeit by leave, lies from an interlocutory judgment or order made in a s 2 application pursuant to the CAR Act ensures that all defendants who make such applications have recourse to appellate review. 161Absent an avenue of appeal under the CAR Act, applicants for s 2 certificates who were arraigned in the Supreme Court would have no right to any review of an interlocutory decision made on that application. However, "the Costs Act cannot properly be construed without reference to the legislative scheme for the conduct of trials, both summary and on indictment": JC (at [36]). When viewed in that context, it is plain that such an outcome would not conform to the scheme of the Supreme Court Act 1970 (NSW) and legislation dealing with criminal proceedings. That scheme ensures that criminal proceedings do not fall within the civil jurisdiction of the court established by the Supreme Court Act, the Supreme Court Rules 1970 (NSW) and the CP Act. Rather, such proceedings fall within the ambit of the scheme constituted, without being exhaustive, by the Criminal Procedure Act, the Crimes (Sentencing Procedure) Act 1999 (NSW) and the CAR Act. 162As is apparent from the joint judgment (at [43]), the enactment of s 5F of the CAR Act was contemporaneous with the enactment of the Statute Law (Miscellaneous Provisions) Act 1988 (NSW) which inserted s 17 of the Supreme Court Act. Section 17 has the effect of excluding from the Court of Appeal's jurisdiction, inter alia, any "claim for relief ... against an interlocutory judgment or order given or made in [proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967]. 163The inter-relationship between the civil and criminal schemes was explained in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 (Basten JA, Fullerton and McCallum AJJA) as follows: "[4] Section 5F of the Criminal Appeal Act was intended to provide a facility for appeals to the Court of Criminal Appeal against an 'interlocutory judgment or order' in proceedings which included, relevantly for present purposes, prosecutions on indictment in the District Court: s 5F(1)(a), the provision being introduced by the Criminal Appeal (Amendment) Act 1987 (NSW). The introduction of that facility in the Court of Criminal Appeal was accompanied by an exclusion of jurisdiction in this Court to deal with the same subject matter. Thus, s 17(1) of the Supreme Court Act provides that 'no claim for relief lies to the court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of [the Third] Schedule' ..." 164It is apparent from the express excision of a "[claim for relief ... against an interlocutory judgment or order given or made in proceedings in the Court] for the grant of a certificate under the Costs in Criminal Cases Act 1967" from the Court of Appeal's jurisdiction in para (i) of the Third Schedule to the Supreme Court Act at the time s 5F(3) was enacted that the legislature intended that, henceforth, appellate proceedings arising from claims for relief in respect of such proceedings would be dealt with in the Court of Criminal Appeal. The only "proceedings" to which para (i) could refer are those commenced by a s 2 application. It could hardly be inferred that by that excision, the legislature intended to extinguish any opportunity for appellate review of either the decision in a s 2 application, or an interlocutory judgment or order made in its course. 165Further, as the Court explained in R v Steffan (at 635), "it was the stated intention of the legislature that s 5F would transfer proceedings in relation to [interlocutory orders] from the Court of Appeal to the Court of Criminal Appeal". Accordingly the legislature also envisaged that there may be a need for appellate review of interlocutory aspects of such an application, the vehicle for which would clearly be s 5F(3). (I note, that it is possible, of course, that a s 2 application per se could be characterised as interlocutory, but it is not necessary to decide that in order to dispose of this matter.) 166The fact that the CAR Act facilitates appellate review of interlocutory decisions arising from criminal proceedings is also apparent from s 2 of the CAR Act set out above (at [135]) which makes it plain (if s 5F(3) was not sufficient) by the inclusive definition of "appellant", that an appellant for the purposes of the CAR Act need not be a person who had been convicted. The definition of "court of trial" also makes it clear that an appeal or application for leave to appeal may be brought from a "determination" other than one consequent upon a conviction. 167It is telling, too, in my view, that the legislature identified an "interlocutory judgment or order" for the purposes of s 5F as one "given or made in proceedings", thus echoing the concept of an application made "in any proceedings" which appears in the chapeau to s 2 of the Costs Act. 168I do not think, with respect, that the judgments referred to in [70] of the joint judgment militate against this conclusion. None concerned the issue which arises in this case. Both concerned the rejection of s 2 applications made in the District Court. The statement made by Basten JA in Chahal v Director of Public Prosecutions [2008] NSWCA 152 (at [55]) ("Chahal") was obiter as the claimant sought orders in the nature of prerogative relief with respect to a decision refusing his application for a certificate under the Costs Act. The claimant in AB also sought prerogative relief with respect to a decision refusing his application for a certificate under the Costs Act. He had first sought to appeal from that decision, but his notice of appeal was dismissed as incompetent by consent, there being as Basten JA said (at [12]) no appeal from such an order. There was no consideration of, nor necessity for such discussion in the light of the claims for prerogative relief, whether such an appeal could be pursued in the Court of Criminal Appeal. Finally, Simpson J's statement in Manley (at [67]) says no more than is self-evident. A s 2 application is a creature of statute. It does not deny that the application, as s 2 dictates, is made "in any proceedings relating to any offence..." (emphasis added). 169In my view this court should accept Mr El-Zayet's submission that it has jurisdiction, sitting as the Court of Criminal Appeal, to entertain the CAR application, being an application pursuant to s 5F(3) of the CAR Act for leave to appeal from El-Zayet 1.

A possible alternative 170If my conclusion is incorrect, the apparent consequence is that defendants in proceedings for an offence tried in the Supreme Court have no avenue of review of an interlocutory or final decision made in a s 2 application. 171As is apparent from Chahal and AB, the Supreme Court's supervisory jurisdiction exercised by the Court of Appeal (s 48(2), Supreme Court Act) is available in respect of decisions of inferior courts in s 2 applications. However, prima facie, such relief does not lie in respect of a decision of a Judge of this court on the premise that the determination of a s 2 application involves an exercise of judicial power: Patsalis v Attorney General for New South Wales [2013] NSWCA 343; (2013) 85 NSWLR 463 (at [29] - [32]) per Basten JA (Bathurst CJ and Beazley P agreeing). Whether that is so is not settled. 172An exercise of judicial power "results in a judgment or order that is binding of its own force": Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 (at [31]); see also Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 ("Bass") (at [45]). On its face, that is not the outcome of a s 2 application. Rather, a successful application results in a certificate containing the opinion referred to in s 3, which, in turn, founds the application for payment pursuant to s 4. 173Competing views were expressed about this issue in Solomons. The Costs Act as it applied in Solomons was in different terms to the Costs Act as presently enacted, but not relevantly substantively so. The relevant provisions appear in Sheller JA's reasons in Solomons CA (at [29]). What was a two-step process under s 4, involving both the Under Secretary of the Department of the Attorney General and Justice and the Treasurer, now requires only consideration and action by the Director-General of the Attorney General's Department. 174In the High Court the plurality said, referring to Bass, that "the grant of a [s 2] certificate by a court exercising federal jurisdiction would involve it in the exercise of power not provided by Ch III of the Constitution [as it] would be productive of a futility, not the resolution of any claim or controversy": Solomons (at [28], emphasis added). Their Honours added that "the grant of a [s 2] certificate [would not] be the exercise by the court of an administrative function 'truly appurtenant' to the exercise by the court of its judicial power to conduct the trial of the applicant for the certificate": Solomons (at [28]). They distinguished Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [No 2] [1982] HCA 57; (1982) 152 CLR 179 (at 186 - 187) where, while Brennan J concluded that "[t]he power conferred upon a court to grant a costs certificate [under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (the "Federal Costs Act")] is not judicial", his Honour held that that did not spell its invalidity as it was "a function truly appurtenant to the exercise by that court of its judicial power to determine the appeal and to award costs of the appeal". 175McHugh J expressed a contrary view. Applying the principle that "[n]o narrow view should be taken of what constitutes judicial power", his Honour held that "[t]he jurisdiction of State courts under the Costs Act involves exercising judicial power": Solomons (at [49]). In his Honour's view, the issue determined in a s 2 application fell within the "paradigm case of an exercise of judicial power involv[ing] the making of binding declarations of rights in the course of adjudicating disputes about rights and obligations as a result of the operation of the law upon events or conduct that have or has occurred". This was despite the fact that the Treasurer may refuse to act on a certificate granted under s 2 as a "court may exercise judicial power although it is reviewing an exercise of non-judicial power and its declaration of right is but a step to the exercise of a discretionary administrative power": Solomons (at [52]). 176Kirby J concluded that "the functions performed by the judicial officer under the Costs Act are 'truly appurtenant' to the exercise of the judicial power", observing that "[f]ederal courts themselves grant like certificates all the time [referring to the Federal Costs Act s 6, s 7, s 7A, s 8 and s 9] [and] [n]o one suggested that, in doing so, they exceeded their judicial warrant". The Federal Costs Act confers a power analogous to the Suitors' Fund Act 1951 (NSW). 177Kirby J's view is supported by the reasons of Gibbs CJ (with whom Mason and Wilson JJ agreed) and Brennan J in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation, the latter being set out above (at [174]). Gibbs CJ held (at 183 - 184) that, because s 16 of the Federal Costs Act obliged the Attorney-General to authorize payment in accordance with the Act, s 6 was a valid enactment because it was an "incident[s] in the exercise of strictly judicial powers". 178If, therefore, the view of the plurality in Solomons was accepted, and the s 2 power involved an administrative, rather than judicial, determination, the Court's supervisory jurisdiction may be attracted in the manner explained in Patsalis. 179It is unnecessary (and undesirable) finally to decide this point as it was not raised by either party, and the jurisdiction issue is sufficiently determined by holding that it has its source in s 5F(3) of the CAR Act.

Orders 180I would make the following orders in relation to the CAR application: (1)Grant leave to appeal. (2)Dismiss the appeal. 181I would not make any order for costs in circumstances where both parties originally came to the Court without having turned any attention to the question whether this Court had jurisdiction to make the orders sought and, further, because I have held that the proceedings are criminal in nature, in which context it is not customary to make costs orders.

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