R v Kellson

District Court of NSW|2024-04-23|Before: Johnson Tiles P, Esso Aust P

Mr D Mulligan, Counsel for the Respondent File Number(s): 2021/00323050

Background

On 14 July 2023, the learned Magistrate at the Blacktown Local Court awarded costs in favour of the respondent pursuant to s 213 of the Criminal Procedure Act 1986 (NSW) (CPA). Her Honour had acquitted the respondent of a criminal charge laid pursuant to section 58 Crimes Act 1900 (CA) on the basis his arrest was unlawful. He was represented by the Aboriginal Legal Service (ALS) at the hearing. This is an appeal from the order awarding costs.
Section 213 of the CPA enables the Court to award professional costs to an accused person at the end of summary proceedings if the matter is dismissed or withdrawn, in an amount the Magistrate considers "just and reasonable". Professional costs are defined in s 211 of the CPA as "costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court".
Pursuant to s 214, professional costs are not to be awarded unless the Court is satisfied as to any one or more of the following: 1. that the investigation into the alleged offence was conducted in an unreasonable or improper manner. 2. that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner. 3. 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; or 4. 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.

The Appeal

The appeal is brought pursuant to s23(2)(b) of the Crimes (Appeal and Review) Act 2001 (CARA) which permits a 'prosecutor' to appeal to the District Court against any 'order for costs made by the Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor'.
The District Court, in determining these appeals, may exercise any function the Local Court could have exercised in the original Local Court proceedings and in its determination may set aside the order and make such other orders as it thinks just or dismiss the appeal (s 27(2) CARA).
The appellant requires the demonstration of factual, legal, or discretionary error to succeed (McNab v DPP [2021] NSWCA 289 at [24]).
The appellant claims the issue is whether the Court can award costs to a defendant represented by ALS on behalf of whom the appellant claims no professional costs have been incurred.
I am indebted to both parties who have provided detailed written and oral submissions supplemented by an extensive bundle of authorities to which they have referred. I propose to set each out in some detail.
Prior to the hearing the appellant provided written (tab 8 Exhibit A) and during the hearing oral submissions that assert the Magistrate erred in awarding costs and the appeal should be allowed.
The respondent has unsurprisingly submitted, in written (Tab 10 Exhibit A) and oral submissions, that I should refuse the appeal.

Local Court Chronology

I do not propose to set out in full the evidence adduced before the learned Magistrate at the Local Court. Her Honour's summary of the history of the prosecution of the respondent in that court, the evidence and her findings are clearly set out in Exhibit A (Tab 3) and I have read them. In my assessment it is sufficiently detailed in her Honour's Judgment.
It is appropriate to set out in short form the relevant history of the prosecution of the respondent's progress through the Local Court, the evidence adduced at the hearing and her Honour's finding.
Bradley James Kellson (the respondent) was charged by NSW Police (the appellant) on 14 November 2021 with Resist Officer in Execution of Duty (s 58 Crimes Act 1900) and two counts of Assault Officer in Execution of Duty. The respondent entered a plea of not guilty to all three charges on 20 January 2022 at Blacktown Local Court and the matter was adjourned on several occasions until it was listed for hearing on 15 September 2022.
On 15 September 2022, given the prosecution had failed to disclose critical evidence and the prosecutor was in the process of seeking the withdrawal of some charges the prosecution sought (and were granted) an adjournment. On that adjournment application, the respondent made a costs application which was not opposed save as for quantum. Magistrate Spence granted both the prosecution adjournment application and the costs application, and the matter was listed for hearing on 23 January 2023. That costs order is not the subject of the present appeal.
On the next date, 23 January 2023, the matter was listed for a defended hearing, the prosecution withdrew sequences 2 and 3 such that the respondent proceeded to hearing on a single count of Resist Officer in the Execution of Duty. The hearing commenced on that day before Magistrate Maher and was part-heard over 23 January 2023, 2 May 2023, and 14 July 2023. The accused was represented on each occasion by a solicitor employed by the Aboriginal Legal Services (ALS)
A voir dire was conducted to determine whether the arrest of the respondent was lawful and whether the continuation of the respondent's arrest was lawful. On 14 July 2023, Magistrate Maher found that the original arrest was unlawful as there was no intention to charge at the time of the arrest.
Accordingly, her Honour found there was impropriety such as to engage s138 Evidence Act.

Magistrate's Findings 1. Her Honour further found that:Arresting officers had breached NSW Police Policy by exchanging emails as to what should be included in their respective statements regarding the arrest of the respondent. This in her assessment adversely affected the credibility of various arresting officers. 2. Some arresting officers copied other officers' statements. 3. The relevant officer who authorised the respondent's arrest prevaricated and gave confused evidence. 4. The relevant officer who authorised the respondent's arrest did not have the intention to charge the respondent and therefore ought to have either not arrested him or discontinued the arrest at the scene as per State of NSW v Robinson [2019] HCA 46 5. The impropriety from the arresting officers was deliberate rather than reckless. 6. The impropriety from the arresting officers was in contravention with the relevant international covenant on civil and political rights.

Irrespective of these findings the prosecution applied to admit the impugned evidence pursuant to s138. The court received CCTV footage that depicted when the respondent was taken back to the Blacktown Police station after his arrest. Her Honour described the footage as showing the respondent being "flung to the ground by Constable Davis" and then being struck whilst on the ground by multiple police officers. Her Honour further implied this assault of the respondent at the police station was such that it would lead to a civil claim for damages from the respondent against the appellant. I note in the application for costs her Honour received (Exhibit 4) a discharge summary from Westmead Hospital that recorded, amongst other injuries sustained by the respondent, as a result of the assaults by police officers, 10-12 rib fractures and a punctured lung (small pneumothorax).
Her Honour refused the prosecution's application to adduce the impugned evidence and dismissed the charge brought against the respondent for want of admissible evidence.
In the light of the evidence and her Honour's appropriate findings it is not surprising "the appellant does not dispute the Magistrate's findings that the circumstances of the case fell within s 214 of the CP Act" (Tab 8 [8]).

The Costs Hearing

The respondent made an application for costs that was resisted at first instance by the Police Prosecutor on the basis of a judgment by (as he then was) Magistrate Buscombe (erroneously referred to as "Buskin" in the transcript) in Police v Horsfield; Police v Dowd [2013] NSWLC 17 (Horsfield and Dowd). He claimed that supported a submission that costs were only awarded to ALS in circumstances where, as they had for Horsfield, private counsel had been briefed to appear for the defendant. I do not accept that is what his Honour determined and in any event such costs incurred would be a disbursement included as a professional cost incurred by the instructing solicitor/agency.
On the hearing the learned magistrate received four (4) exhibits as set out under Tab 4 (1-4) of Exhibit A and the evidence from the defended hearing relied upon to establish the relevant limbs of s214(1) CPA.
Exhibit 1 was an email from Detective Adam Wilson (a senior officer at Blacktown Police Station) to other arresting officers indicating that "Sergeant Kumar has spoken to me in relation to this matter and has raised the issue of the lawfulness of the arrest". It goes on to advise other arresting officers "I would encourage you to refresh your memories from the event" as "I'm sure the ALS will seek to make much of the footage and injuries sustained by Kellson". I observe it was clear from the e-mail that Sergeant Kumar, whom I assume was an independent and superior officer, had expressed a view after reviewing the Body Worn Video (BWV) that there was no lawful basis for police to have arrested the respondent.
Exhibit 2 was an email regarding Probationary Constable Quinn (a witness to both the arrest of the respondent and his subsequent assault at Blacktown Police Station) in which he expressed his concern about the events of the evening including the excessive use of force used against the respondent. I observe it is apparent from this e-mail he was so affected by what he observed at the "arrest" that sadly he intended leaving the NSW Police Force.
Exhibit 3 was an email between the respondent's solicitor, Mr Michael Stone, (ALS) and the Officer in Charge, Constable Lee, relating to the attendance of a Probationary Constable Quinn at the defended hearing.
Exhibit 4 was the Discharge summary from Westmead Hospital I have referred to confirming the respondent was diagnosed with 10 to 12 rib fractures and a pneumothorax as a result from being assaulted at Blacktown Police station.
In addition, handed up but not marked were documents titled "Schedule of Costs" outlining work done for the accused by the ALS, and submissions of the accused regarding costs.
The Magistrate made the order for costs on the basis of her findings of collusion between the Police involved, excessive force, unlawful arrest, and (implicitly) in the light of an expressed opinion as to the unlikelihood of successfully prosecuting the accused the appellant commenced and continued proceedings.
On the basis of the evidence adduced at the hearing and on the costs application it is apparent the provisions of s 214 were engaged in findings relevant to each sub-section.
Her Honour's findings that established a basis for s 214 being engaged in favour of the respondent (accused) are not contested by the appellant who brings this appeal against the subsequent cost order made asserting a variety of errors that ultimately involve a determination of "the sole issue" as to whether "the Court can award costs to a defendant represented by ALS".

Compensatory Costs and "The Indemnity Rule"

In summary the Appellants submissions are: 1. An award of costs to a litigant is compensatory in civil and criminal proceedings. (McHugh J in Latoudis v Casey (1991) 170 CLR 534 at 567) 2. The rationale for costs in criminal cases is the same as in civil cases, namely that costs are compensatory in the sense that they are "awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings" and are not awarded by way of punishment of the unsuccessful party. (McHugh J in Latoudis v Casey at 543). 3. The High Court decision in Latoudis at 567 confirmed the compensatory nature of costs being awarded. 4. Central to this is the requirement of the applicant to be liable for his/her legal costs and disbursements in the subject proceedings. (Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [8], Mandie JA). 5. If no costs were incurred by the applicant (e.g., self-represented) than an order for costs cannot be made. (Wentworth v Rogers (2006) 66 NSWLR 474 at [45] (Santow JA), [102]-[103] (Basten JA at [122])). 6. There must be a contractual obligation between the applicant and his/her legal representative to pay for legal services. (Wentworth v Rogers Basten JA at [133], [168]). 7. There are a number of exceptions to the indemnity rule, including where lawyers will be paid for their services, but not, as a matter of practice, by the client (e.g. where the client is indemnified by an insurer or another party including legal aid). (Wentworth v Rogers at [104] (Basten JA)) (my emphasis). I interpret his Honour's reference to "legal aid" as a broad one inclusive of all organisations that could fall under that banner and not a specific refence to the Legal Aid Commission of NSW (LAC). 1. These exceptions were cases where "the primary liability was held to be that of the litigant or client and hence the indemnity principle was satisfied" and "the litigant incurs costs". 2. The Court of Criminal Appeal (NSW) decision in Rodden v R [2023] NSWCCA 202 did not seek to step away from the indemnity rule or the principles it has referred in this appeal. The issue was whether the provisions of the Legal Aid Commission Act 1979 (NSW) (LAC Act) accommodated the indemnity rule. (By contrast Mr Rodden sought a costs certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (Costs Act)). 3. Although a different regime to the award of costs under the CPA the Costs Act is relevantly like ss 213-214 in that it requires the Court to be satisfied that there was some element of unreasonableness in the prosecution of the accused person as is required in s 214 of the CPA. 4. The principal difference between the two regimes is that the award of costs pursuant to the CPA requires the prosecutor to pay costs directly to the accused person. 5. The appellant relies upon sections 42 and 44 of the LAC Act as allowing an award of costs that distinguishes it from the ALS when no such provisions exist in its incorporating Act. 6. The LAC Act provided for the payment on behalf of the litigant of fees for legal services. That position is in contrast to the present case, where ALS does not retain external solicitors to provide legal services or otherwise make grants of aid to fund legal expenses. 7. Rodden concluded that s 42 and other provisions of the LAC Act contemplate that a legally aided person will be able to recover costs incurred for their benefit by an award of costs, notwithstanding that they will not themselves have personally incurred a liability for those costs at the time legal services were rendered. The effect of the CCA's decision is that s 42 provided an exception to the indemnity rule and the principles set out in Wentworth v Rogers. 8. Section 42 of the LAC Act, headed "Discretion of court or tribunal as to costs", provides that: A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person. 1. Section 44(1) of the LAC Act, provides, inter alia, that the Commission may seek contributions from the litigant "of any money recovered by or on behalf of the person in any proceedings in respect of which legal aid was granted to the person". Accordingly, a legally aided person may, after the grant of aid, be required to make payment to the Commission in respect of some or all of the costs which have been incurred for the purposes of the provision of legal aid. (Rodden [27]). 2. The LAC Act also contemplates the LAC will be able to recover from the legally aided person amounts corresponding with the legal costs paid out for the benefit of the legally aided person. This stands in contrast to the arrangements in the present case, in which there is no statutory mandate to recover fees from a person represented by ALS, nor any provision that would overcome the indemnity principle in the same way as s 42 of the LAC Act. 3. The position is distinguishable from Rodden as there was no statutory analogue to s 42 of the LAC Act. As such, the present circumstances do not give rise for any need to indemnify the respondent by an award of costs and the power to award costs was not engaged. 4. The CCA's analysis in Rodden, as well as the Indemnity Rule, establish that some professional costs must have actually been incurred on behalf of the litigant in order to justify the award of costs. 5. In Rodden, the Legal Aid Commission expended funds on a private solicitor and counsel such that quantifiable costs were incurred. That these facts were important is supported by the CCA's analysis of the provisions of the LAC Act, which establish that the grant of legal aid flows to legal representative, who is funded to provide legal representation. Rodden is therefore a continuation of well-established principles, which have specific application in the context of the LAC Act. 6. The LAC Act provided for the payment on behalf of the litigant of fees for legal services. That position is in contrast to the present case, where ALS does not retain external solicitors to provide legal services or otherwise make grants of aid to fund legal expenses. 7. The CCA in Rodden concluded that s 42 and other provisions of the LAC Act contemplate that a legally aided person will be able to recover costs incurred for their benefit by an award of costs, notwithstanding that they will not themselves have personally incurred a liability for those costs at the time legal services were rendered. That is, the effect of the CCA's decision is that s 42 provided an exception to the indemnity rule and the principles set out in Wentworth v Rogers. 8. In Rodden, the CCA's analysis emphasised the structure of the LAC Act, which enabled the Commission to recoup costs from a litigant. Overall, the LAC Act contemplates that a legally aided person may be required to contribute to his or her defence by one mechanism or another. Accordingly, the rationale for the award of costs - namely to recompense a litigant for professional costs actually incurred - had not been displaced. 9. The position here is different. There was no evidence before the Local Court that any costs had been incurred on behalf of the respondent in engaging the services of ALS, or that the respondent would become liable to reimburse the ALS for its services at some time in the future. The schedule drafted by the ALS solicitor as to hours worked by ALS solicitors in the preparation and conduct of the matter was entirely for the purpose of creating an estimate of an appropriate amount that the Court could order for costs. No actual costs were incurred.

APPELLANT SUBMISSION - Magistrate Errors of Law

The appellant submits that the learned Magistrate made the following errors in the reasons for judgment.
First, the Magistrate likened the position of ALS to Legal Aid, by reference to s 42 of the LAC Act, concluding at T 45.34 that there was no relevant distinction between the ALS and Legal Aid. This was an error of law, as there is no equivalent statutory provision that applies to ALS. The reasoning in Rodden demonstrates that the existence of s 42 was a critical aspect of the CCA's decision. In the absence of such a provision, the indemnity principle remains the guiding principle, and absent liability for costs, the power to award costs is not engaged.
Second, the learned Magistrate stated at T45.41 that "The cost is the cost of representation, just like it is for Legal Aid". This was a further error as the positions of Legal Aid and ALS are distinct. The appellant asserts as Rodden makes clear, Legal Aid operates on a system pursuant to which grants of legal aid are awarded to practitioners, either in house or externally, to provide legal services. There is no equivalent grant of legal aid within ALS such that there is a relevant "cost" of representation. The "cost" of representation which an award of costs indemnifies is the professional expenses and disbursements for which the litigant incurs a liability to pay. The authorities, the appellant claims, make clear that costs will not be awarded in respect of generic "costs" in respect of which the litigant is not presently liable. This accords with the terms of the statutory power to award costs, which is limited to awarding costs relating to "professional expenses and disbursements" (s 211 CPA).
Third, the learned Magistrate premised her reasons on the "responsibility" of ALS to "spend their money in a responsible and proper way" (T 45.44) and the fact that the matter had been run in a way that "had caused [ALS] to expend money" (T 46.2). This again, the appellant asserts, was an error, as there is no power to award costs to compensate an external organisation's incurring of expenses, be they responsible or otherwise. Costs are compensatory in respect of the liability incurred by the litigant, and not by some other person or body who provides the legal services. It is for this reason that the indemnity principle prevents a litigant from recovering more than he or she is liable to pay his own lawyer.
Accordingly, the appellant submits the learned Magistrate erred in awarding costs to the respondent and the appeal should be allowed.

RESPONDENT'S SUBMISSIONS

The respondent submitted the above three asserted errors are the product of underlying legal misapprehensions from the appellant and addressed them as follows: 1. Costs are not only awarded on an indemnity basis as a compensatory order in the context of criminal proceedings as the Court has long recognised the relevance of costs as a punitive sanction to recognise impropriety from parties in the context of criminal proceedings (the indemnity issue). 2. The appellant contends a narrow construction of "professional costs" which has no support in either case law or statutory construction (the professional costs issue). 3. The appellant has made a range of assertions as to the operation of the ALS including whether or not there exists an operative costs agreement between the client and lawyer or organisation. These assertions, made without evidentiary basis, are in conflict with the doctrine of deemed retainers (the deemed retainer issue). 4. The appellant appears to have conflated her Honour's comments on s42 of the Legal Aid Commission Act (the s42 Issue). In the alternative, the appellant appears to suggest that the operation of s42 of the Legal Aid Commission Act assists the Court in considering the present appeal, the respondent submits it does not.

History of Costs in Criminal Cases

Mr Mulligan, counsel for the respondent, has set out in his detailed submissions the development of law where courts and legislation permitted the awarding of costs in criminal cases commencing with Latoudis v Casey (1990) 170 CLR 534 and the other authorities cited by the appellant to support the respondent's submission that they are not as inflexible as contended by the appellant but have been recognised an exception for misconduct in the context of criminal proceedings. The respondent submits the authorities historically have developed a recognition of a distinction between costs under the Common law, costs in Civil litigation, and costs in criminal prosecution.
I am generally in agreement with Mr Mulligan's submissions and propose to set these out in some detail as I am satisfied, they correctly identify the development of the law in awarding "costs" in the criminal jurisdiction and address the submissions for the appellant. In repeating his submissions, I have retained his highlighting of the passages quoted and relied upon.
The respondent submits Latoudis was decided prior to the introduction of s81A of the Justices Act 1902 NSW the forerunner of s214 CPA. Accordingly, the Court's comments on the purpose of costs in criminal cases in Latoudis were in the context of "unconstrained" statutory powers (across various Australian jurisdictions) to award costs to a defendant in summary criminal proceedings.
In Latoudis the respondent relies upon Mason CJ who identified that notwithstanding a prior existing common law rule in criminal proceedings that 'the Crown neither receives nor pays costs' (at p 538) upon the introduction of unconstrained general statutory discretions to award costs across the various states and territories (at p541), his review of the subsequent authorities identified two distinct approaches were emerging across the various Australian jurisdictions.
One, whereby the rule in summary prosecutions that costs ought generally not be awarded based largely on the proposition that it was the duty of the police, once they saw that a prima facie case existed, to bring that before the Court (at p538).
The second being that costs ought generally to be awarded to successful defendants given the financial burden in defending the allegations. In doing so the respondent points to and relies upon the recognition, in the following judgment extracts, of costs also being awarded where the behaviour of the police was improper.
In support of the respondent's submissions, I have been referred to Mason CJ in endorsing the second of these who reasoned: "In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs… It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott, at p 111. Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings." (543) In endorsing the second of these approaches McHugh J reasoned: "The purpose of enacting statutory provisions such as s.97 of the Magistrates (Summary Proceedings) Act 1975 (Vict.) ("the Act"), however, is to reverse the historic rule: Acuthan v. Coates (1986) 6 NSWLR 472, per Kirby P. at p 480. Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of a successful defendant in summary proceedings. To use them in that manner is to ignore the purpose of the legislature in enacting the legislation. Moreover, as the decisions on costs in summary proceedings in Queensland and Victoria demonstrate, if the rationales of the historic rule are taken into account in the exercise of the discretion to award costs, they result in practice in the continuance of the position which existed before the legislation, at least so far as informants not being liable for costs are concerned. In the rare cases in those States where a costs order is made against a police officer-informant, the real basis of the order is punishment of the police officer: he or she is ordered to pay costs because his or her conduct has fallen below what is expected of a police officer-informant. Paradoxically, the rationales of the historic rule are not used to defeat the exercise of the discretion in favour of the Crown or police informant when the informant seeks an order for costs. The result is unequal justice." (at p567-568)
The respondent relies on the above to support his submission that: 1. Whilst the Court expressed the view that costs were "generally" compensatory in the ordinary course recognised exceptions to this rule. Mason CJ recognised that an exemption to the rule might include when "costs are awarded by reason of misconduct or default on the part of the prosecutor"; and, 2. The general rule of costs being compensatory was in the context of Mason CJ advocating for the discretion of costs to be exercised "primarily from the perspective of the defendant" in criminal proceedings as opposed to requiring the defendant to establish some type of wrongdoing or misconduct from the prosecution in order to enliven the power to award costs. Therefore, Latoudis cannot reasonably be read as a case which limits cost orders being made upon prosecutorial misconduct being established. 3. In Latoudis, the Court recognised the "substantial" difference between civil and criminal proceedings and the underlying effect that has on the availability and purpose of cost orders (at p543-544).
Following Latoudis, McHugh J restated his reasons for the existence of an exception to the indemnity principle in circumstances of misconduct in Oshlack v Richmond River Council [1998] HCA 11 at [68]-[69]
The introduction of s81A Justices Act, and then s214 CPA, Parliament demonstrated a legislative intent to substantially confine the broad discretion the Court had in awarding costs in the context of criminal litigation as was the law upon which Latoudis was decided.
Accordingly, the respondent submits the limbs of s214(1) are concerned with identifying misconduct from the prosecution (be it in the conduct of the prosecutor or in the investigation), this suggests costs in summary criminal prosecutions have evolved to incorporate a punitive aspect beyond the confines of the indemnity principle.
The respondent submits Wentworth v Rogers offers little assistance to the Court as it was a decision that emerged from long running civil, as opposed to criminal, litigation. Accordingly, it is disconnected from the interplay between the indemnity principle in the context of criminal proceedings as Latoudis was, and further, it did not involve a consideration of how s214 CPA or any "constrained" statutory power of costs in criminal proceedings may impact the indemnity principle.
However, in relation to the indemnity principle the respondent relies upon what Santow JA in Wentworth said: "[45] The indemnity principle is long-established at general law. It is however not to be applied rigidly, or uninfluenced by statute or by practice recognised by statute, such as in relation to conditional fee agreements. I do not agree with the amicus' submissions that the principle has ceased to exist. Certainly, there have been inroads to it brought about by the Act and by analogical reasoning from recognised exceptions. Where a party to an action has an agreement with their legal adviser that they do not have to pay any costs, then the general law principle states that that party cannot recover party and party costs against their adversary: McCullum v Ifield [1969] 2 NSWR 329 at 330 per Taylor J citing Gundry v Sainsbury [1910] 1 KB 645. and, [50] …the indemnity principle is not immutable and should be applied flexibly rather than made into a rigid rule, as the examples given by Basten JA demonstrate. This was said as long ago as 1902 by Walker J in New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore Dressing Appliances Co (1902) 2 SR(NSW) 50." (at [161])
The respondent notes that while Basten JA did not agree with Santow JA that the indemnity principle was to be applied "flexibly and reasonably" (at [216]) his Honour noted the same exceptions to the rule as identified by the appellant in their submissions: "[104] The indemnity principle has been held to operate in two circumstances which might not obviously fall within its terms. The first is where the lawyers will be paid for their services, but not, as a matter of practice, by the client. Examples of that situation include cases where the litigant is indemnified by an insurer, by an association, such as a trade union, of which the litigant is a member, or where legal aid is obtained. His Honour referred to several examples where: "In each case, the primary liability was held to be that of the litigant or client and hence the indemnity principle was satisfied. In other circumstances, a lawyer may be employed by the litigant, either a trading corporation or some similar body, or the Crown. In such cases it has again been accepted that the litigant incurs costs, although questions may arise as to the amount which can be recovered". (at [161])
The respondent complains that despite these identified exceptions to the indemnity rule at Common Law the unique circumstances of the Costs arrangements of insurers, trade unions, and 'where legal aid is obtained' the appellant seeks to exclude the operation of the ALS from this list of recognised exceptions.
The respondent relies upon Trevorrow v State of South Australia (No 7) [2008] SASC 5, after analysis of the above cases, Gray J concludes [17] "the indemnity principle is a flexible principle, designed to allow for a just and fair result".
Similarly, and more recently, in Rodden Bell CJ; Leeming JA; Beech-Jones JA gave a joint judgment regarding the operation of the Costs Act. The respondent submits the distinction sought to be relied upon by the appellant regarding the operation of the Costs Act and s214 CPA is immaterial to the Court's comments regarding the purpose and operation of costs in the criminal context.
In support of this submission the respondent relies on Rodden, where the Court cited with approval the above comments of McHugh J in Oshlack to emphasise the unique importance of costs being capable of having a punitive function in the context of criminal proceedings. At [118] the Court said: "In this context, it should also be noted that adverse costs orders (and the possibility of them) play an important role in litigation. Although principally intended to be compensatory, the very possibility of an adverse costs order focuses the mind of the moving party in commencing the proceedings or laying charges: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [68] per McHugh J (Oshlack). Although more difficult to obtain in criminal proceedings because of the gateway imposed by s 3(1), the Costs Act represented a significant departure from the common law position that there was to be no recovery of costs in criminal proceedings. Irresponsible and unreasonable prosecutorial decisions may be sanctioned by an adverse order as to costs. The construction of the Act favoured by the primary judge removes this salutary potential aspect of its operation in what will be a not insignificant number of criminal trials where an accused is fully funded by legal aid."
The respondent notes that in Rodden the Court also cited with approval the above excerpt from Basten JA at [104] of Wentworth, to support the proposition that the words "costs incurred in the proceedings" ought to be interpreted broadly in the context of criminal proceedings. At [120]-[122] the Court reasoned: "The primary judge's starting point was s 4(1) of the Costs Act. As noted at [51] above, his Honour construed the expression "costs incurred in the proceedings" in s 4(1) as "costs incurred in the proceedings by the person who has been acquitted". There is no obvious reason why the expression "costs incurred in the proceedings" should be so confined and not extend to or include "costs incurred in the proceedings by or on behalf of the person who has been acquitted". After all, it is not uncommon for a litigant to have his or her costs paid for or undertaken to be paid for on his or her behalf, whether by an employer, trade union, insurer, family member or supporter: cf. Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [104]. That will not ordinarily result in the denial of an award of costs. Indeed, in many cases, the detail of a party's funding arrangements will be entirely unknown to the Court and the other side. Perhaps most fundamentally, the text of s 4(1) does not contain the limitation the primary judge introduced into it. Confining s 4(1) in a way which limits the reach of the Act's application is contrary to the broad way in which beneficial legislation, including the Costs Act itself, should be interpreted: Allerton at 559F."
I agree with the respondent's submission of the summary of the law in respect of costs in criminal cases identifies that: 1. The Court has long recognised flexibility in the indemnity rule, particularly in circumstances where costs are founded on an asserted impropriety or misconduct from the prosecution. Such misconduct is uncontested in the findings by the Magistrate below. 2. The underlying facts of this appeal potently demonstrate the importance of the sanctioning effect of a costs order. That is, the present case involved (undisputed on this appeal) excessive force, a pursuance of a prosecution after being directed towards case law that doomed the prosecution, and findings that police witnesses actively colluded in response to weaknesses that they had been alerted to in their case. As such, the present matter demonstrates the reasoning behind why misconduct in criminal proceedings has been long established as an exemption to the indemnity rule. 3. Further, and in addition to the above, the underlying facts of the matter potently demonstrate the importance of a potential costs order being the subject of pretrial negotiations to (in the words of the above cited decision of Oshlack) "instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved". In this matter Mr Michael Stone, solicitor for the accused in the Local Court, put the officer in charge on notice that "the case against the police is overwhelming, and further costs will be sought on acquittal. No further costs will be sought on the withdrawal of charges" (exhibit 3 in costs application before Magistrate).

Professional Costs

The respondent challenges the appellant's submission that advocates for a narrow meaning of "professional costs" when they contend that "there is no equivalent grant of legal aid within ALS such that there is a relevant 'cost' of representation".
The respondent notes that the appellant suggests (at least for the purpose of a costs order) the ALS does not generate any "professional costs". The respondent submits such a construction is detached from the reality of how any legal organisation operates.
The respondent submits that this is an overly narrow interpretation of "professional costs" as contained in s211 CPA which cannot sit consistently with other provisions in Chapter 4, Part 2, Division 4 of the CPA.
Section 211 defines professional costs as "costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court".
The respondent submits that the Court should adopt a broad interpretation of the expression "professional costs" because under s4 of the Costs Act the expression "costs incurred in the proceedings" is used to capture costs for which a certificate can be granted and there is no principled reason that those words should be interpreted differently to (the arguably broader) "costs…relating to professional expenses and disbursements…in respect of proceedings" which is contained in s211 CPA. In this respect the respondent submits statutory interpretation jurisprudence has long recognised the legitimacy of considering comparable legislation and definitions as an extrinsic aid to the task of interpretation. (Lennon v Gibson and Howes Ltd [1919] 709 at 711-12)
Also, in Rodden, the Court at [120]-[121] reasoned: "The primary judge's starting point was s 4(1) of the Costs Act. As noted at [51] above, his Honour construed the expression "costs incurred in the proceedings" in s 4(1) as "costs incurred in the proceedings by the person who has been acquitted". There is no obvious reason why the expression "costs incurred in the proceedings" should be so confined and not extend to or include "costs incurred in the proceedings by or on behalf of the person who has been acquitted". After all, it is not uncommon for a litigant to have his or her costs paid for or undertaken to be paid for on his or her behalf, whether by an employer, trade union, insurer, family member or supporter: cf. Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [104]."
The respondent submits support for this submission is found when considering the awarding of costs in favour of the prosecution pursuant to s215 CPA where the expression "professional costs" is also used and that an acceptance of the narrow construction of "professional costs" advanced by the appellant in this matter would frustrate the majority of (if not all) costs applications by prosecutors as it would necessitate proof of the cost agreement (on the appellant's construction) between relevant prosecuting bodies (for example the NSW Police) and the advocate that appeared and for whom professional costs are being sought (for example a Police prosecutor).
The respondent submits an acceptance of the narrow construction advocated for by the appellant would necessitate on a prosecution costs application under s215 proof of the prosecuting body's liability to professional costs accrued because of the particular criminal proceeding for which a costs order is being sought. However, this is not the state of the common law with respect to cost applications made by the prosecution under s215 CPA.
The Federal Court considered the issue of whether a public prosecutor could recover costs not incurred in Ly v Jenkins (2001) 187 ALR 178 (Ly v Jenkins). The costs were sought to cover work done by a third party that was a proxy to the prosecuting body which was a party to proceedings. The relevant provisions in the Justices Act were the immediate precursors to s215 CPA. Notably, the prosecutor in Ly v Jenkins had no financial liability to those third-party organisations.
In determining the breadth of 'professional costs' Moore J held at [35]: "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." Keifel J concurred at [134]: "My tentative opinion, however, is that s 81(1) (in the form it took before 25 September 2000) permits an award of costs, expressed in Australian dollars, in respect of such expenses, provided the court considers it just and reasonable to do so. A costs award in a summary prosecution is not limited to expenses or liability incurred by the prosecutor himself or herself: Kelly v Noumenon Pty Ltd at 184. If expenses are incurred by a third party for work reasonably and properly done solely for the purposes of the prosecution, I am inclined to think that s 81(1) would authorise a costs order in respect of those expenses even where they had not been incurred by a public authority, but by a corporation or individual. In this respect my tentative views coincide with those expressed by Moore J."
The respondent submits in applying the above, that 'professional costs' is not only wider than submitted by the appellant, but wide enough to include the work of a third-party to whom the claiming party is not liable. Accordingly, the respondent submits I would reject the appellants claim that learned magistrate was in error as "as there is no power to award costs to compensate an external organisation's incurring of expenses".

"Just and Reasonable Costs"

The respondent submits if the legislature intended on limiting costs to what a party bore a legal liability to pay because of their defence, words to that effect would have been picked up in the Act.
Instead, the Act provides that cost orders can only be made (and the quantum of such is limited) to what the Court considers is "just and reasonable". Therefore, even if a party establishes that a defendant bears a legal liability for professional costs this is not determinative of the test in s214.

Avoidance of Absurd Results

The respondent submits the long established 'Golden Rule' in statutory interpretation has been described as a rule 'to avoid construing legislation so as to produce patently unintended or absurd results' (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304).
The respondent submits the interpretation of 'professional costs' advocated by the appellant in this matter would place the ALS in a uniquely disadvantaged position whereby it could not obtain the benefit of a costs order against any prosecuting body, but defendants represented privately, or on a grant of Legal Aid, or when indemnified by an insurer, association, or trade union could. The respondent submits that this would be an unintended and patently absurd result.
In this respect the respondent refers to the importance of organisations such as ALS is often recognised by the Court as it was by Kirby P in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 420: I refer to the professional work which is performed by legal professional bodies acting on behalf of disadvantaged persons in our community who could rarely, if ever, otherwise afford to pay for the services of a practitioner……... I refer to bodies such as the Redfern Legal Centre, the Aboriginal Legal Service, the Intellectual Disability Legal Service, the Prisoners' Legal Service, the Public Interest Advocacy Centre, or the Legal Aid Commission. In each of these bodies, and doubtless others, work of great utility is carried on by legal practitioners on behalf of disadvantaged people or groups. (my emphasis)
The respondent submits the narrow interpretation of "professional costs" advocated by the appellant would uniquely prevent the ALS from pursuing costs against the Police in circumstance such as this matter that involved (undisputed by the appellant in these proceedings) unlawful violence and abuse of powers by NSW Police officers against indigenous defendants and is therefore an absurd interpretation. As much was established in a hypothetical situation I proposed to the appellant's counsel during the hearing and which I will refer to in detail later in this judgment.

Deemed Retainer

The respondent submits the appellant's submissions that "there was no evidence before the Local Court that any costs had actually been incurred on behalf of the respondent in engaging the services of ALS, or that the respondent would become liable to reimburse the ALS for its services at some time in the future" is misguided and fails to recognise the doctrine of "deemed retainers".
The respondent asserts the doctrine is a longstanding rule that the Court is to assume, absent evidence to the contrary, that there is a retainer between the legal representative and the accused, and that the legal representative concerned may look to the accused for payment of the accused's costs. It is the party that seeks to challenge the retainer that bears the evidential onus of proving the existence and operation of what it asserts to be the true retainer.
The respondent drew to my attention that reference to the doctrine of deemed retainer was made before the learned Magistrate (on behalf of the accused/respondent) and no submission was advanced by the Prosecutor in response.
In respect of the doctrine the respondent submits the following are to be taken into account in its application: 1. The summary of the doctrine by Pincus J in In Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152 (Hudgson), [13]: "…..in the absence of proof of an express agreement to the contrary, that a solicitor who acts upon instructions for a party on the record is taken to be entitled to look to that party for costs, even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation. The doctrine is one of a deemed retainer." 1. The onus of establishing the absence of the retainer lies upon the party challenging it. See in Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678, 679-680 per Mason CJ: "the party who challenges the existence of a retainer bears the onus of establishing the absence of it…...the presumption that the solicitor on the record represents the party for whom he is recorded as being solicitor must surely be a strong one". And 1. In Bolton v Stange [2001] WASCA 34 (Bolton), this doctrine was considered in the context of the West Australian Aboriginal Legal Service where Templeman J, in allowing the appeal relied upon the doctrine in Hudgson of deemed retainer and at [7] reasoned: "In other words, if an accused person is represented by a legal practitioner - from the Aboriginal Legal Service or anywhere else - the Court must assume that the relationship of solicitor and client exists between them with a consequential obligation to pay such costs as may be due." 1. Campbell J in Hawksford v Hawksford [2005] NSWSC 463 at [46] to [49] endorsed Pincus J's approach to the doctrine of deemed retainer in the NSW context in that there was a presumption "that a liability of a person to a solicitor for costs arises if it is established that the solicitor was acting for that person with his knowledge and assent." (at [48]) 2. In overcoming the presumption, the party challenging the retainer must not merely show absence of an express agreement for costs to be paid, but an agreement that an applicant is not liable for costs of his/her solicitor in any circumstances. (Johnson Tiles P/L and Anor v Esso Aust P/L and Ors (No 2) [2003] VSC 212 at [127] - [127])
Accordingly, the respondent submits it is for the appellant, being the party challenging the existence and operation of its opponent's cost agreement, to evidentially offset the presumption provided for in the doctrine of deemed retainer and notes that no such evidence has been proffered by the appellant, as was placed on the record by the solicitor for the respondent in the court below.
The respondent submits the appellant has advanced a number of "bald assertions" as to the operation of the ALS including that the schedule of fees was an 'estimate' and calculated at 'an hourly rate the solicitor considered appropriate'; no expenses were incurred by the respondent himself; no expenses were incurred by anyone funding the defence on his behalf; the respondent did not have an extant liability to reimburse the ALS or pay its professional expenses; and there was a lack of any ALS system to assign matters to private practitioners similar to the legal aid "grants" system.
In respect of the last claim by the appellant the respondent reminds me the case handed up to her Honour at first instance of Horsfield and Dowd appears to directly contradict this assertion as Counsel appeared in that matter having been "engaged through the principal solicitor of the Aboriginal Legal Service".
I note the prosecutor at the Local Court relied on Horsfield and Dowd as "authority" for his claim that costs were only granted to ALS in that matter because counsel had been briefed to appear for their client and was distinguishable from the matter before her Honour as here counsel had not been retained but the accused (respondent) was represented by a solicitor employed by ALS. (Exhibit A, Tab 3 - 14/07/23 T 32 line 28; and T34 line 32)
As such, the appellant has not discharged the onus of proving the existence of an 'express agreement to the contrary' of a retainer.

Section 42

In answer to the appellant's contention that the operation of s42 of the LACA was pivotal to the decision in Rodden and the lack of any statutory analogue for the ALS can distinguish the present circumstances with Rodden the respondent refers me to the following extract from the joint judgment (at [131]) "Our conclusion does not depend on construing s 42 of the LAC Act as applicable to criminal proceedings".
Accordingly, the respondent submits that when the appellant submits that "s42 was a critical aspect of the CCA's decision" this is wrong as the provision had no application to Rodden as the CA was not a costs order of a Court but rather a granting of a certificate which did not attract the statutory protection of s42 LACA.
Further, the respondent contends that s42 LACA does not assist the Court at all in the present appeal for a variety of reasons.
First, both Latoudis and Wentworth suggested that the state of the common law (absent consideration of s42 LACA) was that persons represented by legal assistance bodies ought to be an exception to the indemnity principle without reference to any statutory provision (Wentworth at [104] and in Latoudis at p543) where Mason CJ observed: "The availability of legal aid might be regarded as a possible reason for refusing to award costs. But no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind"
Second, there appears to be nothing in the second reading speech relating to the introduction of the LACA to suggest that s42 was introduced to carve out an exception to the indemnity principle.
Therefore, the respondent submits that s42 LACA does not assist the appellant in the determination of the present appeal.

Response to Asserted Errors

Accordingly, the respondent replies to the asserted errors advanced by the appellant as follows. 1. The respondent disputes her Honour erroneously likened the position of the ALS to Legal Aid. Rather, the cited portion of her Honour's reasons that "[i]n Magistrate Buskin's (sic.) judgment he says that that does not shed any light onto the situation of persons who are represented by ALS" is a passing reference to the Local Court decision that her Honour was asked to consider Horsfield and Dowd by the Police prosecutor who appeared in the Local Court. 2. The appellant's claim that any likening between the ALS and Legal Aid was legally erroneous because 'there is no statutory provision that applies to the ALS' is wrong as s42 did not change the state of the common law. Again, in Latoudis (which equally applies to the ALS) Mason CJ noted that "no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind". 3. The appellant's assertion that "s42 was a critical aspect of the CCA's decision (in Rodden)" is wrong for the reasons provided above under the "section 42 issue" subheading. 4. Even were the Court to apply the indemnity principle as the "guiding principle" as advocated by the appellant, this is not an inflexible rule and would not prohibit the granting of costs for the reasons provided in the "indemnity issue" subheading.
The respondent submits there was no error in her Honour drawing an analogy between Legal Aid and the ALS in the broader context of her Honour's cited remarks.
Further, there is no error in her Honour's use of the term "costs" as this was an appropriate term in the context of s214 CPA for the reasons outlined under the "professional costs issue" subheading.
The appellant's submissions regarding the operation of the ALS are in conflict with the doctrine of deemed retainer, as outlined above under the 'deemed retainer' subheading.
The appellant advances an unduly narrow interpretation of "cost" for the reasons provided above under the "professional costs" subheading.
Again, there was no error in her Honour's remarks that the ALS has a responsibility to "spend their money in a responsible and proper way".
The appellant's asserted claim that costs are always compensatory is incorrect for the reasons provided above under the subheading "the indemnity issue".
The claim that "there is no power to award costs to compensate an external organisation's incurring of expenses" is incorrect. Under the "professional costs issue" subheading the respondent relies upon the case of Ly v Jenkins (2001) 187 ALR 178 in which, under the costs provision that immediately preceded s215 CPA, expenses incurred by a third party that assisted the prosecution were recovered as falling within "costs" incurred by the prosecution.

Findings - Summary of Applicable Law

After considering the parties submissions and judgments of the superior courts I have been referred I am satisfied the history of awarding costs in favour of litigants in criminal proceedings can be summarised as follows.
At common law costs could not be awarded in criminal cases.
In Latoudis the High Court recognised that costs could be awarded in criminal cases.
After this landmark decision the NSW Legislature sought to limit the circumstances in which an application could be founded to be successful in the award of costs. That legislation (current and past CPA) in contrast to the principles of awarding costs in civil cases, i.e. compensation and indemnity where appropriate, was limited to the applicant establishing a certain prerequisite that had underlining them a degree of inappropriate behaviour on behalf of the respondent or an inappropriate determination on the part of the respondent to commence proceedings against the applicant. This requirement of a 'misfeasance' on behalf of the respondent was essential to the awarding of costs.
This introduced a qualifying consideration(s) that distinguished it from the principles governing the awarding of costs in civil proceedings.
I do not accept the appellants submission that the awarding of costs in criminal prosecutions is limited to those cases where the applicant should be personally compensated and indemnified for costs incurred. This is clearly inconsistent with the authorities relied upon by the respondent which I have accepted and repeated in detail.
In that respect I have considered the meaning of "professional expenses and disbursements". I am satisfied in accordance with the quoted reasons of the Court in Ly v Jenkins that this should be given a broad meaning so as to encompass such costs and disbursements incurred particularly in circumstances where the litigant does not personally incur those expenses.
Section 214 requires the costs be awarded to an "accused person". In my experience such costs would either be paid to the Registrar of the Court who then pays the costs to the successful applicant or directly to the applicant.
In my experience those lawyers who are retained privately by the successful applicant and recipient of a costs order can ensure their outstanding costs are received by them either requiring the applicant to sign an irrevocable authority directed to the respondent paying party or the relevant court Registrar authorising such funds to paid to the applicant's solicitors to be retained in trust and the balance accounted for and remitted to the applicant. This can also be achieved by including conditions regarding this issue in the applicant's agreement retaining the legal representatives. If neither mechanism were in place at the relevant time costs were awarded but legal fees and disbursements were outstanding the legal representative could seek their recovery from the applicant through civil proceedings.
It is well known by those who practise law in the criminal jurisdiction that generally, in respect of the approval of a grant of aid by LAC no cost contribution is required by the LAC to represent those who qualify for its assistance. On occasions a contribution may be required in accordance with the conditions to be satisfied before a grant of aid is determined. If it was later discovered aid had been advanced on the basis or either false or otherwise unknown financial circumstances particular to the applicant at the relevant time, there appears to be no bar to LAC recovering costs from the applicant in the civil jurisdiction.
The inclusion of sections 42 and 44 in the Legal Aid Act as referred to in Rodden and by both parties in their submissions in my assessment provides a mechanism to facilitate the payment of costs awarded in favour of the applicant (as required in the section) to be remitted to the LAC.
These sections in the Act are unnecessary to authorise reimbursement of the LAC for costs in representing the applicant but identify the legitimate basis for such a claim and provide a mechanism to ensure LAC is reimbursed from the awarded costs for the internal or external expenses it has incurred.
Much has been made of the fact that no corresponding facilitating section(s) exist in the ALS scheme. In my assessment that does not preclude that organisation from seeking awarded costs be remitted back to it by a successful applicant it has represented. No evidence has been placed before me by the appellant to overcome the onus it bears in establishing the contrary or that the ALS could not obtain written authority from the successful applicant directing the awarded costs be paid to it.
No evidence has been placed before me (or the Magistrate) setting out the grant of aid to the accused or if one existed whether it contained any specific conditions that may have provided a mechanism for recovery of costs if appropriate. That onus lies on the appellant and could have been obtained by request or if necessary, subpoena.
I am not satisfied the appellant's claim that a distinction can be made between the LAC and ALS entitlement to make and receive costs (for the accused) pursuant to s 214 of the Act based on the absence of corresponding facilitating legislation (as I have described it). To do so would create an absurd situation that in my assessment the community would not accept as fair.
During Counsel for the appellant's oral submissions, I raised with her that hypothetically an accused who was both indigenous and indigent (my emphasis) could theoretically apply to be represented by either ALS or LAC. (I have experience of an indigenous defendant who made an election to be represented by LAC rather that ALS). If counsel for the appellant's submissions were correct the defendant in my hypothetical situation who elected to be represented by LAC and who satisfied the criteria in s214 would be successful in obtaining an order for costs but alternatively if he/she had elected to be represented by ALS and despite satisfying the criteria in s 214 would not be entitled to an order for costs. Counsel for the appellant agreed this outcome would be a logical consequence that flowed from the appellant's submissions.
In respect of the appellant's claim the recipient of ALS representation did not have an implied retainer with that organisation to act on his/her behalf I raised with Counsel for the appellant that the accused (or any recipient of ALS representation) could and presumably would provide instructions to the ALS representative as to the conduct of his/her case and expect them to be followed (unless unlawful, unethical or improper) and could at any time leading up to or during proceedings terminate his/her instructions to the ALS representative. Counsel agreed the recipient of ALS representation could do each or all of these acts and in my assessment of the case law and general practice these are characteristics of a relationship of an implied retainer existing between a client and their legal representative.
As previously indicated, I have not accepted the fact the recipient of ALS representation does not or is required to make a financial contribution of payment for the legal services provided results in there being no implied retainer in existence. Clearly, in the circumstances of this matter the respondent had retained ALS lawyers to represent him at the Local Court. It is clear from the Magistrate's unchallenged summary of the evidence that the ALS solicitor had received instructions concerning the facts surrounding the relevant events and had provided legal advice to the respondent that inferentially had been accepted by the respondent as reflected in the manner the case was conducted at the Local Court.

Costs - Quantum Findings

At the conclusion of their oral submissions the appellant tendered an extract from the ALS website (Exhibit B) headed "Australia's first free legal service" with an attachment headed "Annual Information Statement 2023". This was tendered without objection despite it being technically fresh evidence where no application had been made for its admission. Reliance was placed upon the notation, it was submitted, to indicate the ALS had received zero funds under the heading "Gross Funds" funds from providing "Revenue from providing goods and services" as support for the submission that I could be satisfied that at least in that financial year no award for costs had been made by a court. The respondent submitted this indicated funding for the operation of ALS was derived from Government funds, donations, and interest payments. This it was claimed affirmed ALS (unlike LAC) was unable to recovery such costs for representing its clients. I do not accept the document can support that broad inference. At its highest it may indicate that ALS had made no application for such costs during that period.
I do not accept that submission. The document does not lead to the claimed conclusion. All it demonstrates is that during that period no funds were received by ALS from clients, nor it would appear from successful applications for an award of costs. In that respect I note the costs awarded to the respondent by Magistrate Spence in respect of the adjournment on the 15/9/2022 is not challenged. At its highest it may indicate that ALS had made no successful application for such costs to be awarded during that period. As has been noted earlier above the awarding of costs pursuant to this type of legislation is rare.
I am not satisfied the learned Magistrate erred in awarding costs or the basis for doing so.
In coming to that determination, I am satisfied: 1. The award of costs pursuant to s214 was in an appropriate amount. It was awarded to indemnify the ALS and also satisfied the punitive character of the section. 2. The amount was just and reasonable. It was calculated on a basis that was favourable to the appellant in that the hourly rate relied upon ultimately in the calculation of costs was generous when considering the fees an experienced solicitor could claim if representing an accused privately. 3. The respondent had an implied retainer with the ALS. 4. The costs and disbursements incurred by ALS fell within the section's definition of "professional costs" as defined in s 211 CPA. 5. The fact the ALS is funded mainly by government does not dimmish its need to properly manage its administration and allocation of such funding in a manner that achieves its objectives but also to be financially responsible. In this respect Mr Stone, the ALS solicitor invited the Police to withdraw the charges and costs would not be pursued. This offer was ignored, and ALS incurred the expenses associated with conducting a hearing over several days in the Local Court despite Police being advised by a senior officer who reviewed the material that it had in effect little chance of success. 6. On the contrary the police in the matter attempted to "patch up" their case against the respondent by resorting to collusion and false evidence. I can only infer this was to avoid an adverse finding against the Police who brutally assaulted the respondent. I suspect in pressing on with the prosecution the Police had an eye for the potential civil proceedings that may result from their behaviour. 7. As a consequence of the Police decision to ignore the invitation to withdraw all the charges the ALS incurred the cost of providing one of its solicitors to represent the respondent in a case where the Police had no chance of success. In discharging its objectives, the ALS should have been able to redirect that solicitor's employment to another matter where a genuine need for it existed.
I am satisfied the Police conduct resulted in unnecessary professional costs being incurred by ALS in representing the respondent.
In addition, and importantly, the appellant has not satisfied the onus on it to establish the ALS was not able to recover costs it had incurred in appearing for the respondent. I do not accept the document tendered as Exhibit B in these proceedings as discharging that onus in any way.
I am not satisfied the learned Magistrate erred in the making of the order for costs pursuant to the CPA or her reasons for doing so.

Conclusion

Accordingly, I am satisfied the learned Local Court Magistrate did not err in awarding just and reasonable costs in the Local Court and the appellant has failed to establish any factual, legal, or discretionary error from the Magistrate.
In any event I am satisfied that irrespective of the Magistrate's reasons I would have independently made a similar order on the findings I have made in that the provisions of s 214 CPA were satisfied, and the ALS were entitled to recover the professional costs incurred in representing the accused/respondent.

Orders

I make the following orders: 1. I dismiss the Appeal, 2. I confirm the Magistrate's orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2024

At a glance

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Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (22)