MOORE J:
1 I have had the benefit of reading the reasons for judgment of Sackville and Kiefel JJ in a draft form. I agree with what their Honours have said about the constitutional issue and whether the Local Court of New South Wales is a court of competent jurisdiction for the purposes of s 132(7) of the Copyright Act 1968 (Cth).
2 There remains for consideration the appellants' challenge to the orders for costs made by the learned Magistrate. I generally agree with the reasons of Sackville and Kiefel JJ concerning the obligation of the learned Magistrate to consider whether any costs ordered were just and reasonable and her Worship's failure to do so and agree with what Kiefel J has said about the way the order was expressed. I agree with the orders they propose, but wish to add a few observations on other matters. It is unnecessary to repeat Kiefel J' s summary of the relevant facts.
3 In their notices of appeal, the appellants challenged the costs orders on the following ground:
"3(d) If the offence of which the Appellant was convicted was valid, and the Magistrate/Local Court had jurisdiction to hear and determine the matters preferred against the Appellant, the penalties imposed were too severe in all the circumstances (sic) had no jurisdiction or alternatively exceeded her jurisdiction in purporting to make a costs order under s 81 of the Justices Act 1902 (NSW) on 19 July, 2000."
4 The written submissions of counsel for the appellants were:
"27. It is submitted that s 81 of the Justices Act 1902 (NSW) did not confer power on the Magistrate to make the aforementioned costs orders and there was no proper basis for the award of such costs.
28. Section 81(1) authorises the awarding of professional costs against a person convicted of a criminal offence. Professional costs are defined in s 81(7) as follows:
'professional costs mean costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a Justice or Justices.'
29. The prosecution of these matters was conducted by a police prosecutor. It is submitted that professional costs can only be awarded to a prosecutor who is a 'professional' in the sense referred to in s 81(1), that is a legally qualified practitioner - cf. Kelly v Noumenon [1988] 47 SASR 182 at 184-5. There was no evidence that the prosecutor was a legally qualified practitioner nor was there any basis for the Magistrate to assume that he was. Under s 81 of the Justices Act, witness expenses can only be awarded when they are disbursements incurred as part of professional costs. Since there was no basis for the award of professional costs there was also no basis for the award of witness expenses.
30. Further, witness expenses could only have been awarded for expenses incurred by witnesses in respect of proceedings before the Magistrate. The material tendered in support of the award of costs demonstrated that if any expenses were incurred by the persons nominated they were incurred before the proceedings commenced. Section 81(1) does not permit a Magistrate to award costs (expenses) in relation to time taken by a person to provide a statement for use in future criminal proceedings - Kelly v Noumenon, supra.
31. Further, the power to award professional costs under s 81 of the Justices Act is one that can only properly be exercised by the making of an order in Australian dollars. It is not permissible to award costs in a foreign currency, if for no other reason than to ensure certainty."
5 The written submissions were formulated by reference to s 81 as amended (by schedule 9 of the Courts Legislation Amendment Act 2000 (NSW)) after the costs orders were made on 19 July 2000. At that time the section relevantly provided:
"(1) The Justice or Justices making any conviction or order may in and by such conviction or order adjudge that the defendant shall pay to the clerk of the court, to be by him paid to the prosecutor or complainant, or, in the case of an order of dismissal, that the prosecutor or complainant shall pay to the clerk of the court, to be by him paid to the defendant (or, if the prosecutor or complainant so elects, directly to the defendant) such costs as to such Justice or Justices seem just and reasonable."
6 During the hearing of the appeal the following emerged as the issues raised by the appellants on the question of costs:
(1) Section 81 conferred power on a magistrate to award professional costs only. Professional costs cannot be awarded to a police prosecutor: see Kelly v Noumenon Pty Ltd (1988) 47 SASR 182. The amendments to s 81 made in September 2000 making express reference to "professional costs" can be called in aid in construing the section prior to the amendments: see Allina Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 295.
(2) Even accepting that disbursements incurred for witnesses' expenses can be comprehended in an order for professional costs, costs cannot be awarded for investigation or proof of the case. A variant of this submission was that the informants were under no obligation to satisfy the charges deposed to in the two American affidavits as disbursements. Those charges were simply charge-out rates of the relevant corporations and their advisers.
(3) The learned magistrate had no power to make an order in, or referable to, US dollars.
(4) In exercising the discretionary power to award costs, the learned magistrate failed to address the question of whether the costs awarded were proportional to the offence or the fines or both: see Kelly v Noumenon Pty Ltd (supra).
7 In the proceedings before the learned magistrate heard in May and June 2000, a Sergeant Harrison appeared for the informants. Some police prosecutors in New South Wales are legally qualified. During submissions on the issue of costs the legal representatives of the defendants (the representation changed), made no submission that the power to award costs under s 81 was not enlivened because the prosecutor was not legally qualified and the power under that section was relevantly limited to awarding professional costs. The learned magistrate was entitled to proceed on the basis that the prosecutor was legally qualified or at least on the basis that whether he was qualified was not relevant.
8 In this matter it is unnecessary to determine the reach of s 81 as it might have applied to ordering costs relating to the attendance of a legally unqualified prosecutor before the amendment made by schedule 9 of the Courts Legislation Amendment Act 2000 (NSW). No order was made concerning the attendance of the prosecutor whether qualified or not. However even if the prosecutor in the present matter was not legally qualified, it is at least arguable, having regard to the width of the language then used in s 81 (as I explain shortly), that an order for costs could have been made relating to the attendance of the prosecutor. In Moore-McQuillan v SA Police (No 2) [2000] SASC 69 Debelle J said:
"It is well established that, where a prosecution is conducted on behalf of the prosecuting authority by a legally unqualified officer of that authority, the authority through its officer is entitled to recover only the costs which would be recoverable by any legally unqualified complainant appearing in person: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182. Those costs are limited to out-of-pocket expenses including disbursements, travelling expenses to and from the court on the occasion of necessary appearances, the cost of sustenance if the witness is forced to stay away from home, and some allowance for the time actually occupied in appearing before the court while it is sitting: Willing v Hollobone (1972) 3 SASR 532; Kelly v Noumenon at 187-188. Those expenses do not include time spent in preparing the case for trial but the prosecuting authority is entitled to recover the costs incurred in the attendance of the prosecutor at court, the cost of that time to have regard to other matters on which the prosecutor attends: Kelly v Noumenon at 188.
These principles are daily applied in Magistrates' Courts in respect of police prosecutions when magistrates make orders allowing a reasonable fee for the costs incurred by the Police Department in prosecuting summary and other offences." (emphasis added)
9 In that matter, his Honour went on to conclude that the magistrate had power to award costs representing a fee of $220 per day to be paid for the attendance of the prosecutor representing the original complainant in an application to revoke a restraining order.
10 In issue in this appeal is the order concerning the costs associated with both the Australian investigators and the affidavit evidence prepared in the United States of America. Section 81 empowered the learned magistrate to award "costs" to be paid to the prosecutor or complainant by initial payment to the clerk of the court. What "costs" might comprehend was considered by the High Court in Cachia v Hanes (1994) 179 CLR 403. A helpful summary of the High Court's decision is found in the judgment of Doyle CJ in Burford v Allen (unreported, Supreme Court of South Australia, 26 May 1998). The Chief Justice said:
"The approach of the majority (Mason CJ, Brennan J, Deane J, Dawson J and McHugh J) was that the outcome of the case was governed by the meaning of 'costs'. They said (at 409):
'The 'costs' provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to moneys paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of 'costs'.'
Although the focus of this passage is upon the claim advanced by the litigant in person, the reasoning rests upon the conception that "costs" are limited to expenses incurred for professional legal services. Those expenses, of course, will include the expenses that might be incurred by the practitioner. The majority made this clear a little later when they said (at 410-411):
'To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester 1278 (UK) 6 Edw. I c 1 introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant.'
In my opinion these passages have a twofold significance. First, the emphasis upon 'costs' being professional legal costs, that is reimbursement to a practitioner for work done or expenses incurred by the practitioner. Secondly, the emphasis upon the fact that the award of costs is not intended to be complete compensation for losses suffered by a litigant."
In that matter the contentious costs claimed were interest on a loan to fund the litigation.
11 The issue of what is comprehended by the word "costs" was considered again by the High Court in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184. In that matter, Hayne J said at [91] (Gaudron J generally agreeing):
"On its face, then, the reference in s 117 to "costs" is a reference to "costs" as that word is ordinarily understood in the law: the amount which the person to whom the order is directed must pay to some party to the litigation as partial indemnity for the professional legal fees and expenses incurred by the party in the course of the litigation."
12 For a comparatively recent detailed discussion on what a power to award "costs" comprehends see Walton v McBride (1995) 36 NSWLR 440.
13 In the present matter the power to award costs conferred by s 81 included, in my opinion, power to award an amount for disbursements and expenses reasonably incurred in the preparation of the prosecution even if not directly incurred by the prosecutor. Such costs could be awarded apart from whether or not there was also power to award an amount for the services of the prosecutor or the attendance of the prosecutor in court.
14 Section 81 was expressed in general terms and provided that "costs" could be ordered "to be … paid to the prosecutor or complainant." Of relevance also is s 70(2) which provided that "the prosecutor or complainant may himself or herself or by his or her counsel or attorney, conduct his or her case … ." The legislative predecessor of s 81 was s 18 of one of Jervis' Acts (11 & 12 Vic. c. 43) adopted in New South Wales by the Justices Act of 1850 (14 Vic. 43). In Ex Parte Graves (1891) 8 WN(NSW) 44, the Supreme Court of New South Wales decided that s 18 did not confer jurisdiction on a Justice to award professional costs to a defendant who had been represented by an articled clerk and not counsel or an attorney. Sir G. Innes J said:
"The only persons entitled to professional costs are counsel and attorneys, and in our opinion the Justices exceeded their jurisdiction in making the order they did. It is not merely a question of procedure but one of jurisdiction. There is no authority for the course the Justices pursued. An articled clerk is in no different position from any ordinary layman. A Justice might permit any person to conduct the case for one of the parties, as, for instance, if the party in the case had an impediment in his speech; but there could be no award of professional costs in such a case."
15 That judgment was given at a time when the courts were taking a comparatively strict view of who might appear, as solicitor, for a party at the hearing. It could not be a managing clerk of the solicitor on the record even if the clerk was a solicitor himself: see Ex parte Browne (1913) 13 SR(NSW) 593.
16 However in McLaurin v Hall (1913) 13 SR(NSW) 114 the Court concluded that a Justice had not erred in ordering a defendant to pay the informant's costs (in the sum of Ł320). The information was laid by the secretary of a Royal Commission who alleged the defendant had failed to comply with a summons to attend the Commission. The defendant was convicted. The complainant was represented by counsel before the Justice. The defendant appealed and argued that the complainant had not, by his own admission, retained counsel or a solicitor. Pring J said at 124:
"Of course his award as to costs is somewhat large, but the case for some reason or other, simple as it is, took a long time - 25 days - and counsel of some eminence was briefed for the complainant. The magistrate considered that circumstance, and awarded an amount which I think is by no means extravagant. The magistrate clearly had power under the section to award costs, and the amount allowed is not a matter we should interfere with. If he were to award a grossly extravagant sum there might be a remedy by prohibition, though I do not say there would be, to correct that injustice. In cases where police officers lay information, it is the everyday practice for magistrates to award costs, but, of course, constables do not receive costs or pay them. Everybody knows that the proceedings are taken on the part of the Crown, just as this was. The magistrate, realising and knowing that costs had been incurred, could order a reasonable sum to be paid by the appellant. Then it is said that there was no power to award costs because the Crown could not have costs awarded against it. With regard to that, it is only necessary to refer to the case of Alexander v. Donohoe (4 C.L.R. 781). That was a prosecution by a customs officer, and Mr. Tighe, for the appellant, argued that the magistrate had no jurisdiction to award costs when exercising Federal jurisdiction. Griffith, C.J., says: 'all the State Courts are invested with Federal jurisdiction. And surely in every case where a party is entitled to have recourse to a State Court, under a Federal Act, costs may be awarded him in the same way as if the Court were exercising its ordinary jurisdiction.' There is no question that if the magistrate had been exercising his ordinary jurisdiction he would have power to make an order for costs. For these reasons, I think the question submitted in the special case must be answered in the negative, and the appeal dismissed with costs."
17 In The Appeal of Thompson (1949) 66 WN(NSW) 185, an issue arose about the power to order costs under s 81 when an information alleging breach of price control regulations by an officer of a Government department had been laid and the informant had been represented at the hearing by a salaried solicitor in the State Crown Solicitor's department. The defendant was convicted and ordered to pay Ł2 12s 0d costs. In an appeal the defendant successfully argued that the salaried solicitor had no right of audience and, accordingly the magistrate had no power to award costs under s 81. Curlewis J noted that "(i)f the informant is successful in his application to the court he is entitled to be recouped his just and reasonable costs for employing a solicitor". However as the salaried solicitor was not the informant's solicitor, he had no right of audience and, for that reason, the magistrate had no power to award costs. Substantially the same issue arose again later the same year in Ex parte W.A. Grubb Pty Ltd; Re Johnston (1949) 66 WN(NSW) 224. Herron J took a different view and concluded that the salaried solicitor did have a right of audience.
18 The approach of Herron J was approved in Cook v Head and Arneman [1976] 1 NSWLR 176. Glass JA (Moffitt P agreeing) said at 182:
"The answer to the last question is controlled by the decision of this Court in Ex parte W.A. Grubb Pty Ltd; Re Johnston (1949) 66 WN(NSW) 224 and a decision to the same effect of the Supreme Court of Victoria in Blackall v. Trotter (No. 1) [1969] VR 939. These judgments, in my opinion, establish that where a party appears in proceedings as the nominal representative of the Crown he is entitled to recover costs in circumstances where an ordinary party would be so entitled, and that it is no objection to such an order in his favour that he did not personally incur expense in connection with the litigation." (emphasis added)
19 It is to be noted that the power to award costs arises even if the complainant did not personally incur the expenses to which the costs order related.
20 The authorities considered to this point have concerned the power of a magistrate to award costs under s 81 when a legally qualified person appeared for the informant but there was an issue about the status of the person as a practitioner. More generally, however, they reveal that a broad view emerged about the scope of the power conferred by s 81.
21 The issue of whether witnesses' expenses could be ordered as costs in circumstances where there was a police prosecution with no legally qualified representative appearing for the informant arose in R v Burt; Ex parte Presburg [1960] 1 QB 625. An individual had been charged with crossing a traffic light when the lights were against him. When the matter came before the stipendiary magistrate, the defendant appeared represented by a solicitor though there was no appearance by or on behalf of the informant. Nonetheless a police officer gave evidence and the defendant was convicted. The stipendiary magistrate ordered that the defendant pay Ł2 2s costs to cover the attendance of the police officer to give evidence. The power of the stipendiary magistrate to award costs was conferred by Costs in Criminal Cases Act 1952 (UK) which was in similar terms to s 81. Section 6 of that Act provided:
"(1) On the summary trial of an information a magistrates' court shall have the power to make such orders as to costs
(a) on conviction, to be paid by the accused to the prosecutor;
(b) on dismissal of the information to be paid by the prosecutor to the accused,
as it thinks just and reasonable."
22 The leading judgment was given by Lord Parker CJ who considered that the issue was resolved by reference to Attorney-General v Shillibeer (1849) 19 LJ (NS) Ex 115. In Shillibeer the Crown had been awarded costs in circumstances where the informant had been represented by a salaried employee of the Crown Solicitor. His Lordship said at 634:
"In my judgment, there is no distinction between that case and the case of the salary paid to a police officer, or any other salary which a prosecutor has to pay to a person whose activities are necessary in and about a prosecution. It matters not that, unlike the case of Shillibeer, the person to whom a salary is paid is not a solicitor or a professional man."
23 and later at 635:
"It has been conceded that, although the information was laid by a particular police constable, he must be taken in laying that information to be acting on behalf of the Metropolitan Police; it would be quite artificial to treat him as a private individual and to say that as a private individual he had been put to no expense or loss or trouble because he himself was being paid all the time. Not only would that be an artificial approach, but if one looks at section 17(1) of the Act of 1952, it is expressly provided: '"Prosecutor" includes any person who appears to the court to be a person at whose instance the prosecution has been instituted, or under whose conduct the prosecution is at any time carried on.' Accordingly, Mr. Miskin, quite rightly, has conceded that the prosecutor here and the person entitled to costs, if costs be payable, is the Commissioner of Metropolitan Police or the Metropolitan Police Force."
The challenge to the power of the stipendiary magistrate to make the costs order was dismissed.
24 In a note on this case in (1960) The Australian Law Journal, vol 34 p 56 it was said:
"The reasoning underlying the case appears to justify the granting of costs to police prosecutors in some cases in magistrates' courts in Australia, see for example ss 81 and 147 of the Justices Act 1902-1957 (NSW)".
25 I have been unable to find any Australian authority (and particularly one in New South Wales) applying R v Burt (supra). However in Kelly v Noumenon Pty Ltd (supra) King CJ addressed the position where the complainant was represented by a legally unqualified officer of the Corporate Affairs Commission. His Honour said at 185:
"I think that it follows that where a legally unqualified officer of the Commission is permitted to prosecute the question of costs is to be approached as though the matter was conducted by the complainant in person notwithstanding that the prosecuting officer is not the complainant on the record. The Commission should be entitled to recover such costs as are, but no further costs than, would be recoverable by any legally unqualified complainant appearing in person."
26 It is relatively clear from the judgments of the High Court in Cachia v Hanes (supra) that while a legally unqualified litigant is not entitled to costs for representing himself or herself, witnesses' expenses and appropriate disbursements are recoverable by the litigant: see also Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 39 FCR 288.
27 Traditionally, disbursements have been either payments made or liabilities incurred by the practitioner (representing the party in whose favour the costs order is made) which the practitioner is bound to pay or payments which, by established custom and practice of the profession, the practitioner is bound to pay: see Re Remnant (1849) 11 Beav 603 and Browne v Barber [1913] 2 KB 553. Such disbursements can include witnesses' expenses: see Re Felton (1942) 60 WN(NSW) 16. While the proceedings before the learned magistrate were criminal proceedings, principles concerning the awarding of costs and what they might comprehend in civil proceedings have relevance: see Norton v Morphett (1995) 83 A Crim R 90.
28 The learned magistrate ordered that the defendant pay the costs occasioned by the preparation of the affidavits in the United States and of the Australian investigators on the basis, seemingly, that they were either witnesses' expenses (though that expression may have been used fairly loosely in the course of the submissions by the parties to the learned magistrate) or expenses necessarily incurred in the preparation of the prosecution.
29 The entitlement of a subpoenaed witness to expenses and what those expenses might comprehend was considered by Sheppard J in Bank of New South Wales v Withers (1981) 35 ALR 21. His Honour extracted several principles from the authorities which included (at 37):
"The principles which, in my opinion, the authorities to which I have referred establish are:-
(1) …
(2) …
(3) A person upon whom a subpoena, whether to produce documents or otherwise, is served is entitled at common law (but originally probably because of the terms of the statue 5 Eliz c 9, s 12) and now under rules of court to an adequate indemnity for his expenses of coming to and from court and for his sustenance during the time he is required to remain there. …
(4) Professional witnesses, especially doctors and attorneys, and seafaring witnesses were also entitled at common law to recover an amount to indemnify them for loss of time whilst they were detained at court as a result of the service of a subpoena. No other person was so entitled.
(5) That position changed in England and Australia from about the time of the passing of the Common Law Procedure Act 1852, pursuant to which scales of fees for witnesses were promulgated. Thereafter witnesses have been entitled, according to the appropriate scale, to payment for loss of time as well as for payment of expenses of travelling to and from, and remaining at court. Whether the right to recover is based upon an implied contract or upon a statutory entitlement arising by reason of the provisions of the rules, it is unnecessary to decide.
(6) …" (emphasis added)
30 A more recent consideration of the expenses that may be ordered in relation to witnesses is found in Pyramid Building Society (in liq) & Ors v Farrow Finance Corporation (in liq); Ex parte Farrow, Clarke and Lawson [1995] 1 VR 464 at 465-468.
31 However an order requiring the payment of witnesses' expenses may, in appropriate circumstances and subject to the terms in which the power to award costs is conferred, also include a "qualifying fee". That is, an amount to meet the expenses of witnesses incurred in preparing to give evidence about the facts of a particular case: see e.g. Robinson v Malcolm & Co Ltd (1899) 5 ALR 204 at 206 (surveyor) and McLaughlin v City Bank of Sydney (1916) 16 SR(NSW) 491 at 496 (accountant). It is not necessary for a witness be an expert to receive a qualifying fee: see e.g. Attorney-General v Birmingham Drainage Board (1908) 52 Sol J 855 (non-expert witness employed by plaintiff to watch the sewage discharged into a river by the defendant, in a proceeding for an injunction restraining the defendant from discharging sewage) and Barwick v Barwick (1938) 33 Tas LR 1 (private detective employed to gather evidence in a divorce proceeding). Nor is it necessary that the witness be called to give the evidence in court: Clark, Tait & Co v Federal Commissioner of Taxation (1931) 47 CLR 142 at 146 (stock and station agent and valuer became qualified to give evidence but was not called as a witness) though compare Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 at 157 (valuer prepared a report which was admitted into evidence but did not swear an affidavit or give evidence - no expenses were awarded).
32 An example of where witnesses' expenses were ordered in a case bearing some similarities to the present is W A Gilbey Ltd v Continental Liqueurs Pty Ltd (1963 -1964) 81 WN(NSW) (Pt1) 1, though they were civil proceedings. In that matter the defendant company, in a suit for passing-off, called a witness from the United States to give evidence in Sydney. The witness' evidence was led to prove the assignment to the defendant company from an American company of rights to use certain words in connection with its products in New South Wales, and to prove the reputation abroad of those words. The defendant company failed on both these issues at first instance, but the High Court allowed an appeal and ordered that the suit be dismissed with costs. In doing so, the High Court observed that the relevant reputation was established beyond dispute by the documentary evidence, and that it did not depend on oral evidence. The High Court did not need to consider whether the assignment contended for by the defendant was proved. In a taxation of costs, a Registrar disallowed the disbursements incurred in calling the American witness, on the basis that they were not necessarily incurred to establish the defendant's case. In a review of the taxation, Asprey J allowed the costs of calling the American witness, on that basis that they were necessarily and properly incurred in procuring the attendance of a witness whose evidence was intended to prevent the plaintiff establishing that the relevant words had come to designate the product of the plaintiff in New South Wales. However, Asprey J referred the question of quantum to the registrar, so it did not emerge whether the American witness' claimed expenses included a qualifying fee.
33 In my opinion, it would be consistent with these authorities to view some of the costs of the preparation of the affidavits in the United States as a "qualifying fee" and comprehended by the expression "costs" in s 81, if the learned magistrate was satisfied the costs directly related to preparing to give evidence or giving evidence in the proceedings and the other elements of s 81 were made out. I am satisfied the learned magistrate had power to make an order concerning the preparation of affidavits in the United States to prove the existence of the intellectual property rights to which the proceedings related. However any consideration by the learned magistrate of what order, if any, should be made in relation to the preparation of the affidavits in the United States must be subject to the statutory injunction that the costs "seem just and reasonable". For the reasons given by Sackville and Kiefel JJ, the costs claimed for the preparation of the American affidavits will have to be considered with some care if, as a matter of discretion, the learned magistrate decides to make a further order in relation to them.
34 The costs ordered in relation to the Australian investigators (each of whom gave evidence) appear to have included their professional fees for conducting the initial investigation concerning whether the defendants had contravened the Copyright Act 1968 (Cth). So much is apparent from the letter dated 11 May 2000 from the Australian Film and Video Security Office to Sergeant Harrison.
35 There appears to be no settled approach to whether the investigation of an offence leading to proceedings and summary conviction can, as a matter of power, be the subject of a costs order. In Kelly v Noumenon Pty Ltd (supra) King CJ said at 184:
"It is clear from the authorities that the indemnity which a party to litigation receives in consequence of an order for costs is an indemnity in respect of his liability to his solicitor for professional charges for work reasonably and properly done in connection with the litigation and for out-of-pocket expenses reasonably so incurred. In a prosecution to which s 77 applies, this indemnity no doubt includes the initiation of proceedings by complaint and summons and the conduct of the proceedings thereafter, but it does not extend to the cost of detecting or investigating the offence nor to any share of the administrative costs of the prosecuting department or agency, either generally or in connection with the detection and investigation of the particular offence: Manthorpe v Bache (1980) 25 SASR 316."
36 Manthorpe v Bache (1980) 25 SASR 316 concerned summary proceedings leading to the conviction of the defendant for driving a motor vehicle with more than the prescribed concentration of alcohol. The defendant was convicted and the special magistrate ordered that he "contribute the sum of $100 towards the cost of the prosecution". The order was made in purported exercise of a power conferred by s 77 of the Justices Act 1921-1979 (SA) which, for present purposes, was in substantially the same terms as s 81. That is, the magistrate had power to order "such costs as the Court thinks just and reasonable". However that Act also contained s 200a which enabled a certificate of compensation to be granted by the magistrate "for any expense, trouble or loss of time reasonably incurred by 'a person' in connection with the proceedings." Any such compensation was payable out of monies provided by Parliament: see s 200a(5). White J concluded that in the face of an express legislative mechanism for the payment of compensation, no order could have been made under s 77 dealing, indirectly, with the same matter. There is no corresponding provision in New South Wales of which I am aware which limits, as a matter of construction, the scope of s 81. In addition, his Honour took the view that an order of the type made could impose a manifestly oppressive burden on an individual defendant (effectively underwriting the costs of the administration of a police department) and might lead to detention in default of payment.
37 Reference has already been made to Barwick v Barwick (supra) which was a civil matter. In that matter Clarke J determined a review of a decision of the Registrar disallowing certain items in the taxation of a bill of costs. In issue were the fees paid to a private inquiry agent for services rendered in the discovery of evidence of adultery in proceedings brought under the Matrimonial Causes Act 1860 (Tas). The inquiries were made before the action was commenced. The relevant rules (made under the Civil Procedure Act 1932 (Tas)) provided that just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed and also that the taxing officer should allow all such costs, charges, and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of any party. Clarke J concluded that the fees were allowable under that latter provision. His Honour also concluded that the fees were allowable under a rule authorising qualifying fees for witnesses and said:
"A private detective is certainly not an expert, but a qualifying fee may be allowed to a witness who is not an expert, and the fact that the work was done in qualifying the witness before the petition was filed does not dispose of the matter."
38 In the United Kingdom costs associated with the investigation of a matter leading to summary conviction have been ordered in exercise of a power to order "costs". In Neville v Gardner-Merchant Ltd (1983) 5 Cr App R (S) 349 an issue arose about the power of magistrates to order costs covering the expenses of investigating the offence. The respondent company had pleaded guilty to a number of summary offences under regulations concerning food hygiene. The magistrates ordered the respondent company to pay the costs of the prosecutor, including preparatory work carried out by the prosecutor's senior legal officer but disallowed any amount in respect of the time spent by the prosecutor's senior environmental officer, who had carried out the inspections which led to the proceedings. The prosecution was maintained by the Westminster City Council. In an appeal Kerr LJ and Webster J concluded that the justices had misdirected themselves in holding that they had no discretion to award such investigation costs on the basis they were not comprehended by the terms of s 2(2) of the Costs in Criminal Cases Act 1973 (UK) which provided:
"On the summary trial of an information a magistrates' court shall, on conviction, have power to make such order as to costs to be paid by the accused to the prosecutor as it thinks just and reasonable …".
The magistrates had stated a case involving two questions:
"(1) Did we misdirect ourselves in law in refusing to order costs in favour of the prosecutor to reimburse the cost of time extended by a senior environmental health officer in investigating the case on the ground that our discretion was not wide enough to embrace such costs? or
(2) In the alternative, did we misdirect ourselves in law in refusing to 0award investigation as well as legal costs in that since the investigating officer is paid from public funds and since it is her job to investigate such contravention on behalf of the local authority such costs were not properly payable to a prosecutor?"
On these questions Kerr LJ (who gave the leading judgment) said:
"Since it seems to me that question (1) seeks to raise the issue whether the justices had a discretion to award these costs in the present case, I would conclude that they misdirected themselves in reaching the conclusion that they had no such discretion. The authorities to which I have referred are in the contrary sense: not only did they have a discretion to award these costs, but prima facie, costs of this kind should be awarded. So far as question (2) is concerned, if I am right in reading it as directed to the question whether such costs should nevertheless be disallowed because they relate to the time of an investigating officer paid out of public funds whose job it was to investigate such alleged offences; again, the answer is that there is nothing in the authorities which precludes an award of costs in these circumstances. Again, the authorities are to the contrary, since it is clear from them that the fact that the person in question is salaried and only doing his or her job makes no difference to the issue of costs."
39 However this decision was distinguished in Re Caffrey's Application for Judicial Review [2000] NI 17, an unreported judgment of the Queen's Bench Division of the High Court. In that matter a magistrate had ordered a defendant convicted of offences under the Merchant Shipping Act 1995 (UK) to pay costs of investigation (of, it appears, the seaworthiness of the vessel to which the proceedings related). Section 2 of the Costs in Criminal Cases Act (Northern Ireland) (1968) empowered a magistrate to order the whole or any part of the costs of the prosecution (including any costs incurred in connection with any matter preliminary or incidental to the trial). Their Lordships said:
"In our opinion the words 'preliminary or incidental to the trial' in s 2(1) are intended to refer to the costs of remands, adjournments and interlocutory proceedings, not investigation of the incident out of which the prosecution arose. The resident magistrate was accordingly in error in including investigation costs in the award of costs against the applicant."
40 However the approach in Neville v Gardner-Merchant Ltd (supra) appears to continue to reflect the accepted approach to the awarding of costs in summary prosecutions. In Associated Octel Ltd [1997] 1 Cr App R (S) 435 an issue arose in the Court of Appeal about the scope of a magistrate's power to order costs for the investigation leading to the prosecution. In that matter, the defendant company had been convicted of offences under health and safety legislation. The magistrate ordered the defendant company to pay Ł142,655-33. A significant element of this sum reflected the costs of inspection and investigation following a fire at the defendant's plant. The Prosecution of Offences Act 1985 (UK) conferred a power on the magistrate to "make such order as to costs to be paid by the accused to the prosecutor as it considers just and reasonable". The Court of Appeal was referred to the leading judgment of Stocker LJ in Seymour [1987] 9 Cr App R (S) 395 who had taken the view that the costs of investigating an offence (involving the destruction of an unknown quantity of Roman remains by a farmer ploughing his field) should not be ordered to be paid by the defendant. The Court of Appeal in Associated Octel Ltd (supra) indicated a preference for the approach of the Court in Neville v Gardner-Merchant (supra).
41 I am satisfied that s 81 was cast in sufficiently wide terms to have conferred power on a magistrate to order a defendant convicted of an offence of the type presently under consideration under the Copyright Act 1968 (Cth) to pay, as costs, the costs associated with the investigation of the offence. However notwithstanding the existence of the power it is necessary for the magistrate to be satisfied that such costs are just and reasonable.
42 In the present matter, any such determination will be made against a background in which there has not been, in New South Wales, a practice of awarding costs against an unsuccessful defendant in police prosecutions let alone ordering the unsuccessful defendant to pay the costs of the investigation. It is in that context that the learned magistrate will be required to consider whether the costs of investigation, or any part of them, should be viewed as just and reasonable.
I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .