Nature of review
3Sections 212 to 214 of the Criminal Procedure Act 1986 provide:
"212 When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.
...
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
...
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.
(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003."
4There is no express right of appeal conferred from a decision to refuse to make an order under s 213. Hence the plaintiff invokes s 69 of the Supreme Court Act. There is no privative or ouster clause in respect of a decision under s 213. It follows that relief under s 69 is available on the grounds discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at pp 175 - 176 including jurisdictional error and error of law on the face of the record.
5The "record" is usually confined to any documentation which initiates the application, the pleadings (if any) and the orders made (Craig at 182). In this state, the definition of the record has been expanded to include the reasons of the inferior court or tribunal (s 69(4) of the Supreme Court Act; see Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [89]). Where jurisdictional error is alleged the Court can, subject to the applicable procedural and evidentiary rules, take account of any relevant material placed before it (Craig at 176).
6The concept of jurisdictional error on the part of an inferior court was discussed in Craig at 176 to 180 and in Kirk at [71] - [75]. The discussion in Kirk emphasises that it is neither necessary nor possible to mark the boundaries of jurisdictional error. Care should be taken to avoid "providing a rigid taxonomy of jurisdictional error" (Kirk at [73]). That said, one formulation of jurisdictional error which arises on the plaintiff's case is the statement in Craig at 177 as follows:
"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that a jurisdiction does exist. Such jurisdictional error can infect either a positive act or refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction."
7The power conferred by s 213(1) of the Criminal Procedure Act cannot be exercised in a case where there is a prosecutor acting in a public capacity unless the Court is "satisfied" of any one or more of s 214(1)(a) to (d). The formation of the opinion in s 214(1) is a "limit" on the function or power conferred by s 213(1) as discussed in the above passage from Craig. It follows that, in a case where a costs order was refused, jurisdictional error will be established if the plaintiff can establish that the Local Court misapprehended the limits placed on it by s 214 (see for example De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] to [33], per Davies J). Having stated this, six matters should be kept in mind.
8First, the formulation of jurisdictional error that I have extracted from Craig involves establishing that the inferior court "misapprehended" the limits on its power. Just because the matters listed in s 214(1) have a jurisdictional quality does not mean that the role of this Court is to determine whether any of them were met and, if so, conclude that there was jurisdictional error on the part of the Local Court in failing to act. The plaintiff must identify a "misapprehension" by the Local Court as to the limits on its power, not a mere disagreement with the Local Court's conclusion as to those limits. Unless the intention is clearly expressed, legislation will not be construed so as to make the jurisdiction of a court contingent upon the actual existence of a state of facts as distinct from the court's opinion or determination that the facts exist (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J]). The deployment by the legislature of the word "satisfied" in s 214(1) puts beyond doubt that there is no such contrary intention.
9Second, a number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was "unreasonable", "improper" or that there were "exceptional circumstances". In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of "opinion or policy or taste" may be "very much a matter of opinion and thus not readily susceptible to review for error of law" (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was "unreasonable" or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult.
10Third, an erroneous construction of provisions such as ss 214(1)(a) to (d) will sometimes be apparent on the face of the lower court's reasons. If so the existence of both an error of law and a jurisidictional error will be established. In some cases a misconstruction may only be apparent from an examination of the structure of the lower court's reasons. In other cases a party may point to a disparity between the facts as found and the lower court's conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a "common understanding". To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ).
11Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held:
"... a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."
12It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error.
13Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the "record". It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant "matter" would have to be a factor or consideration that as a "matter of law" the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] to [74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of "facts" that it is said should have been considered but were not, or were considered but should not have been.
14Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P).