Plaintiff v First Defendant

1. The issue in this proceeding is whether the Magistrates' Court of Victoria is able to make a costs order in a criminal proceeding after it has made and entered orders that otherwise finally dispose of that proceeding.
2. Raed Al Bikai, the applicant, was charged with a number of criminal offences. On 26 March 2024, the Magistrates' Court of Victoria at Melbourne found him guilty of one charge but not guilty of seven other charges, sentenced him without conviction to a fine of $1,500, ordered that certain monies be forfeited, and entered those orders 'into the record' on that day.[1] It is accepted that, ordinarily, the informant at least might have been ordered to pay all or some of Mr Al Bikai's costs. Mr Al Bikai did not, that day, apply for an order that his costs be paid by the informant. At least by 8 April 2024, he sought to have the proceeding relisted so that he could apply for such an order. After the exchange of written submissions and an oral argument, and at the end of a thoughtful and carefully-expressed set of written reasons, on 16 August 2024 the Magistrate expressed his view that 'there is no longer any proceeding before the court and [he was] therefore functus officio.' His Honour, correctly with respect, felt himself bound by Mansell v Keating, an unreported decision of O'Bryan J of the Supreme Court of Victoria given on 5 May 1995.
3. Mr Al Bikai has applied for an order in the nature of certiorari and an order in the nature of mandamus requiring the Magistrates' Court to consider and determine his application for costs. Mr Al Bikai's submissions includes a submission that Mansell v Keating is clearly wrong and should not be followed.[2] The Magistrates' Court of Victoria is the first defendant. It informed the Court that it would not take an active part in the proceeding but would abide the Court's decision in accordance with the principles set out in R v Australian Broadcasting Tribunal; ex parte Hardiman.[3] The informant is the second defendant.

B Did the Magistrates' Court have jurisdiction to order costs after 26 March 2024?

1. Once a final (that is, not an interlocutory) order of a court is authenticated, or drawn up and entered as the formal record of the court, in a form that correctly expresses the court's intention, the court, in the absence of fraud, thereafter has no jurisdiction to review it or to vary it or to set it aside.[4] This is because of the need for finality in litigation: were it otherwise, disputes could be endlessly revisited. In such circumstances, the order may only be set aside or varied by an appellate court, if an appeal is available. Otherwise, the parties must move on.
2. That is readily understandable when the order records the result of a resolution by the court of a dispute. That is the case here with respect to the dispute as to whether Mr Al Bikai was guilty of the charged offences. Section 25 of the Magistrates' Court Act 1989 gives the Magistrates' Court jurisdiction 'to hear and determine indictable offences which may be heard and determined summarily'. By hearing and determining the charges against Mr Al Bikai, and entering those determinations into the record of the Court, the Magistrates' Court exercised the jurisdiction given to it by s 25 of the Magistrates' Court Act 1989. It thereafter had no power to revisit those determinations.
3. That is not necessarily the case, however, with the question of costs. The power to order costs comes from statute.[5] Section 131(1) of the Magistrates' Court Act 1989 provides as follows:

131 Costs to be in the discretion of the Court

(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) Subsection (1) applies unless it is otherwise expressly provided by this or any other Act or by the Rules or the regulations.

1. Section 401 of the Criminal Procedure Act 2009 provides that:

(1) Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates' Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.

1. It was accepted that there is no material difference between the two provisions.
2. Because the power to order costs derives from these statutory provisions, the limits of this power are to be found, or not found, in the text of these provisions.
3. The informant emphasised the public interest in finality and certainty - that there must be a clear and identifiable end to litigation - that underlies the principles of functus officio. While recognising that these provisions do not expressly impose a time by which any application for costs must be made, he submitted that Parliament must not have intended to permit a situation where an application for costs could be made even years after a proceeding had ostensibly finished. Accordingly, he submitted, the provisions conferring a power to order costs should be read as by implication adopting the principle that any application for costs must be made before final orders were made and entered dealing with the underlying dispute, that is, before the Court became functus officio at least in respect to the underlying dispute. It was not necessary that an application for costs be determined prior to final orders otherwise being made, it was submitted, but it was essential that the application be made or at least foreshadowed before that time. In that way, the Court and the other parties would be made aware that the proceeding was not finished and the other parties would be on notice that, at an appropriate time, a costs order would be sought.
4. I do not accept that these provisions should be read with that limitation. Although these provisions do not explicitly say that the power to order costs is not temporally limited,[6] there is nothing in the text that expressly places a temporal limit on the power to order costs and I do not consider that any such limitation should be implied. The fact that the legislature did not enact any such limitation indicates, to my mind, instead an intention that there be no such limitation.
5. There is, of course, merit in the argument that a party should be able to know promptly whether costs are or will be sought against them. Ordinarily, costs should be applied for promptly after findings have been pronounced in relation to the underlying dispute, and the application for costs either determined prior to the formal entry of orders into the court record or expressly reserved for later determination prior to the formal entry of orders in the court records. And a court may have regard to any delay by a party in seeking costs when exercising its discretion in relation to costs, particularly if the delay has led to the responding party incurring further costs, and there may be such a delay that the application amounts to an abuse of process. But that is insufficient reason to read down the broad expression of power granted by the two sections. Also, it would always be open to an unsuccessful party itself to raise the issue of costs and to seek to have any application for costs brought and determined expeditiously.
6. Accordingly, I conclude that the power given by s 131 of the Magistrates' Court Act 1989 and s 401 of the Criminal Procedure Act 2009 is not limited, as a matter of statutory construction, to a power to order costs only before the entry into the court record of final orders relating to the underlying charges.
7. The informant's argument, as I understood it, went beyond this point of interpretation and included a submission that the principles of functus officio themselves precluded the Court from exercising the jurisdiction to order costs. That is, that even if the power were not limited as a matter of statutory interpretation, the Court was unable to exercise that power because it was functus officio.
8. There is, of course, something circular about this argument. Be that as it may, I do not consider that the separate legal concept of a court becoming functus officio operated to prevent the magistrate from exercising the power to order costs. A claim for costs is a different claim to the claim for the underlying relief.[7] This discrete power - the jurisdiction to determine by whom, to whom and to what extent costs are to be paid - had not yet been exercised. No orders had been made relating to that issue and entered into the court record. Mr Al Bikai was in no sense seeking to have a dispute relitigated contrary to the public policy requirement that there be finality in litigation. For this reason, the Magistrates' Court was not functus officio with respect to the issue of costs. I was referred to, and respectfully agree with:

(a) the approach of von Doussa J in Telescourt v Commonwealth of Australia[8] where his Honour held that the Administrative Appeals Tribunal was able to consider an application for costs after it had handed down its decision because the award or not of costs was a 'discrete head of power' and 'until the power is exercised the functions of the Tribunal are not complete';[9] and

(b) the approach of Brereton J in Grace v Grace (No 9)[10] where his Honour said:

Generally speaking, unless the question of costs has been dealt with, explicitly or implicitly, in the final judgment, a costs order does not involve any variation of or attack on the final substantive judgment. Accordingly, the finality principle is not offended by subsequently entertaining and dealing with an application for costs because it does not involve impugning "the operative and substantive part" of the judgment.[11]

1. It follows that, in my view, the Magistrates' Court did have jurisdiction to entertain Mr Al Bikai's application for costs.

B.2 Is Mansell v Keating clearly wrong?

1. O'Bryan J came to a different conclusion in Mansell v Keating. With respect to his Honour, I consider that he was clearly wrong to do so.[12]
2. His Honour relied on, or considered himself bound by, Brew v Whitlock (No 3) [1968] VicRp 63; [1968] VR 504. Brew v Whitlock (No 3) concerned an application by a successful appellant for interest on a sum the Full Court ordered be paid to him. The application was made a week after the Full Court's order had been drawn up and authenticated. The Full Court held that it was unable to entertain the application. This was because of the terms of s 78 of the Supreme Court Act 1958, which was the statutory basis for the claim to interest. Section 78 of the Supreme Court Act 1958 provided as follows:

78(1) Upon all debts or sums certain hereafter recovered in any action the Judge at the hearing shall upon application unless good cause is shown to the contrary allow interest to the creditor at a rate not exceeding eight per centum per annum ... (emphasis added)

1. After noting that the statutory power was conferred 'upon the judge at the hearing', Gowans J, delivering the judgment of the Full Court, stated:

What is required is an application at the hearing when judgment is delivered, although it may well be that it would be sufficient if the application were made before the judgment was perfected.[13]

Gowans J then determined that because the Full Court was only empowered to do upon application to it what the trial judge at the hearing was empowered to do, the Full Court, also, could not award interest unless the application was made to it during the hearing of the appeal.

1. Although not referred to by O'Bryan J, Brew v Whitlock went to the High Court, including on the Full Court's decision in relation to interest. The majority of Taylor, Menzies and Owen JJ concluded that the Full Court was correct.[14] Again, however, their Honours' reasoning turned on the wording of s 78 of the Supreme Court Act 1958, their Honours stated that:

... when the terms of s. 78(1) are scrutinized it is seen that the power to give interest under that section is to be exercised, if it be exercised at all, at the hearing ...

1. By way of contrast, as noted above, the power to order costs contained in s 131(1) of the Magistrates' Court Act 1989 and s 401 of the Criminal Procedure Act 2009 is expressed in wide terms and is not given only to the magistrate 'at the hearing'. Accordingly, in my view, Brew v Whitlock (No 3) was and is distinguishable. The Full Court's ruling (and the High Court's ruling) that the provisions of s 78 of the Supreme Court Act 1958 precluded an application for interest other than at the time of the principal hearing did not bind either his Honour or the Magistrate, and does not bind me, to conclude that the provisions of s 131 of the Magistrates' Court Act 1989 and s 401 of the Criminal Procedure Act 2009 are to the same effect.
2. Although not referred to by his Honour, a similar approach was taken by Smart J in the Supreme Court of New South Wales in Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540. Again, however, I consider this case to be distinguishable. Mr Fosse and others had been charged with some criminal offences but Mr Fosse was discharged during the course of a joint committal. About a fortnight later, he applied for costs from the informant. The magistrate refused to order costs on the grounds that he was functus officio, and Smart J agreed. In that case, the power to order costs was contained in s 41A of the Justices Act 1902 (NSW) which provided as follows:

(1) The Justice or Justices -

(a) when making an order discharging a defendant as to the information then under inquiry; or

...

may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant (or, if the informant so elects, directly to the defendant) such costs as to the Justice or Justices seem just and reasonable.

(2) The amount so allowed for costs shall in all cases be specified in the order requiring payment. (emphasis added).

1. Smart J considered the legislative history of this section, and, as I read his Honour's reasons, relied on that and the tying of the power to award costs to 'when' the judge is 'making an order discharging a defendant' to hold that the power to order costs is 'limited to the process of discharge' and so costs cannot be ordered after the discharge is complete. In this way, this decision also turned on an interpretation of the legislative provision that conferred what was concluded to be a conditional jurisdiction to order costs. His Honour also reasoned that, once the discharge was complete, the proceeding was no longer 'on foot even for consequential purposes'. This, though, was, with respect, really a circular argument that followed from the earlier conclusion that the power to order costs was no longer available.
2. For completeness, I note that O'Bryan J in Mansell v Keating also referred to, but distinguished, In the Marriage of Kazimierczak.[15] In that case, a judge of the Family Court of Australia made final orders relating to the division of property between a separating husband and wife. Just over two months later, the wife sought, and was given, costs relating to her 'application for property settlement'. The Full Court of the Family Court of Australia dismissed an appeal against that order in which it was asserted that the court was functus officio at the time that the costs order was made. The Full Court of the Family Court of Australia rejected this argument on the basis that 'since the power to award costs is derived from the statute any limitation as to the exercise of that power must be found within the statute itself', and there was no limitation to be found that required the power to award costs to be exercised only prior to the making of final orders. O'Bryan J in Mansell v Keating stated:

In my opinion because this decision is founded upon a statutory provision to award costs in terms unlike the provision in s. 131 of the Magistrates' Court Act it should be distinguished.

1. His Honour was, of course, correct in his conclusion that the decision turned on the wording of the provision there under consideration and so was not directly relevant to the issue before him. But the decision remains instructive to the extent that it emphasises that the power to award costs depends on the terms of the statute that is the source of that power, and it is broadly supportive of the view that in the absence of some express limitation the conferral of a broad power to award costs should not be read down so that it is only exercisable before final orders have otherwise been made.

1. I should note that not all potential claims not explicitly considered when resolving an underlying dispute will be able to be brought afterwards. There may be occasions where the connection between the other claim and the underlying dispute is such that the other claim must be brought at the time of the resolution of the underlying dispute. One example is where the other claim potentially affects the orders that might be made when resolving the underlying dispute. For example, in Director of Public Prosecutions v Hofschuster,[16] the Director of Public Prosecutions sought orders that some firearms be forfeited some nine months after Mr Hofschuster had pleaded guilty to and been sentenced for an 'aggravated dangerous act' involving the discharge of a firearm. Thomas J held that he was unable to make such an order on the grounds that he was functus officio. However, immediately prior to expressing that view, he emphasised that a forfeiture order is 'penal in character' and 'part of the penalty for the offence' and for that reason should be considered by the sentencing judge 'as a part of the sentence'.[17] There may be other examples. The principle that a party should bring inter-related claims at the same time to avoid the risk of conflicting decisions might apply in some circumstances.[18] But, at least in ordinary circumstances, and although efficient litigation requires that applications for costs should be brought at the earliest possible opportunity, the Magistrates' Court is empowered to consider an application for costs even if it is brought after orders recording the disposition of criminal charges have been finalised.

1. I conclude that the Magistrate was not functus officio in respect to the application for costs brought by Mr Al Bikai and that his Honour did and does have power to entertain that application.
2. It seems his Honour did not formally make an order dismissing the application for costs that would be liable to being quashed by an order in the nature of certiorari. Accordingly, and subject to hearing further from the parties, the appropriate relief seems to me to be an order in the nature of mandamus that the Magistrate consider and determine according to law Mr Al Bikai's application for costs.
3. I will hear the parties on the question of the costs of this application and on the form of order.

[1] Section 18 of the Magistrates' Court Act 1989 (Vic) requires the principal registrar to keep a register of all the orders of the Court. Order 5 of the Magistrates' Court Authentication and Electronic Transmission Rules 2021 (Vic) provides that an order may be authenticated by the person who constituted the Court signing its entry in the register or, if the order is entered into a computerised data storage and retrieval system, entering confirmation of the order into that system. Although I was not provided with a signed extract from the register or other confirmation, there was no challenge to the Magistrate's statement in his reasons that these orders had been 'entered into the record', which must be a reference to the register provided for by s 18 of the Magistrates' Court Act 1989, and there was no issue that the orders had been 'authenticated' in the relevant sense.

[2] As the decision of a single judge of this Court, it is not binding on me. But I should follow it unless I am of the view that it is clearly wrong - see eg Slap Corporation Pty Ltd v Civil, Infrastructure & Logistics Pty Ltd [2017] VSC 168; (2017) 50 VR 542, 561 [72]-[73] (Randall AsJ).

[3] (1980) 144 CLR 13.

[4] See, eg, Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539 (Gibbs J). The Court retains power to set aside a judgment obtained by fraud: Tuckett v Blake [1888] VicLawRp 96; (1888) 14 VLR 264, 267-8 (A'Beckett J); Goldring v National Mutual Life Association of Australasia Ltd [1916] HCA 71; (1916) 22 CLR 336, 33 (Griffiths CJ, Isaacs and Gavan Duffy JJ).

[5] See GE Dal Pont, Law of Costs, LexisNexis, 5th edition, para 6.4: 'The historical legacy dictates a starting point that, statute apart, a court lacks power to order costs; authority to do so must always be traced to a statutory provision'.

[6] Cf, eg, r 63.03 of the Supreme Court (General Civil Procedure) Rules 2025, and its predecessors, which state that the Supreme Court may, in any proceeding, exercise its power and discretion as to costs including after the conclusion of the proceeding. Also, I note that r 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that an application for costs may be made 'by filing an Application in a Proceeding within 28 days after the final order is made.'

[7] See, eg, Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686 at 694 [15].

[8] [1991] FCA 205; (1991) 29 FCR 227.

[9] Ibid [36]. See also State of Victoria v McKenna [1999] VSC 310, although that case turned on procedural fairness.

[10] [2014] NSWSC 1239, [35].

[11] The phrase 'operative and substantive part' of the judgment was taken from Bailey v Marinoff [1971] HCA 49; (1970) 125 CLR 529. Menzies J at 532 said that: 'there is clear recognition that a court cannot, by a further order, get rid of the operative and substantive part of its judgment'. Walsh J at 535 said: 'the principle seems nevertheless to have been accepted that it is beyond power to alter a perfected judgment so as to get rid of the "operative and substantive part" of it'. In the same case, Barwick CJ said at 530 that '[o]nce an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding, apart from any statutory authority to the contrary, is in its substance...beyond recall by that court'.

[12] Cf Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24, 34 [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

[13] Brew v Whitlock (No 3) [1968] VicRp 63; [1968] VR 504, 505.

[14] Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445, 463-464.

[15] [1987] FamCA 19; [1987] FLC 91-849.

[16] [1995] NTSC 154; (1995) 125 FLR 239.

[17] Citing and quoting Lord Diplock in R v Cuthbertson [1981] AC 470 at 484.

[18] See, eg, Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589.