Sayer-Jones v Director of Public Prosecutions

Supreme Court of NSW|2019-12-11|Before: Adamson J

Solicitors: Director of Public Prosecutions (NSW) (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2019/111804

Introduction

On 21 November 2019 I made orders in favour of Robert Sayer-Jones (the plaintiff), allowing his appeal under the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) against a conviction entered against him in the Local Court pursuant to his plea of guilty: Sayer-Jones v Director of Public Prosecutions (NSW) [2019] NSWSC 1615 (the principal judgment).
In summary, I found, on the basis of Jamieson v The Queen; Brugmans v The Queen (1993) 177 CLR 574; [1993] HCA 48, that the offence under s 192G(b) of the Crimes Act of dishonestly making a false statement with the intention of obtaining a financial advantage did not apply to the conduct alleged against the plaintiff: that he had falsely stated to the Local Court that statements of claim had been served with a view to entering default judgments and obtaining garnishee orders against the judgment debtors, for financial advantage.
I reserved the question of costs. By application made on 11 December 2019, the plaintiff seeks an order for costs of the appeal and of the hearing in the Local Court and an order that the costs be paid in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). The Director of Public Prosecutions (the DPP), the first defendant, accepted that it would be open to me to be satisfied of the matter in s 70(1)(d) of the Act (set out below) and to make an order for the costs of the proceedings in this Court in the plaintiff's favour on that basis.

Relevant statutory provisions

Because of the questions raised in the course of this application as to the source of the Court's power to order costs, it is necessary to address the statutory provisions in some detail, including to determine whether this proceedings is criminal or civil because of the different statutory provisions which apply to each; and the statutory basis for the fees charged by the Court for the filing of the summons, notices of motion and for the hearing.

The right of appeal

The plaintiff appealed pursuant to Part 5 of the Act. He had a right of appeal under s 52 as his ground involved a question of law alone. Relevantly, this Court's powers to determine the appeal included a power to set aside the conviction, which was the order made in the present case: s 55(1)(a) of the Act. There is no relevant reference to costs in Part 5 of the Act. Section 58(3) of the Act , which provides that if this Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the prosecutor as it thinks just, is in Division 2 of Part 5 and applies only to appeals by prosecutors. It has no application to the present case.
Part 6 of the Act is expressed to apply to "all appeals" which includes an appeal under Part 5.

Power to award costs

The provisions in Part 6 which are relevant to costs are ss 70 and 72. Section 70 of the Act limits the costs that may be ordered in an appeal under the Act. It relevantly provides: "70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. …"
Section 72 provides that an appeal court (such as this Court) which orders a party to pay costs must state the time within which the costs must be paid.

Procedural provisions

Section 61 of the Act provides that Rules of court may be made under the Supreme Court Act 1970 (NSW) with respect to the jurisdiction conferred by Part 5 on this Court.
Section 17 of the Supreme Court Act relevantly provides: "17 Criminal proceedings (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule. …"
The Third Schedule contains a non-exhaustive list of criminal proceedings, but makes no reference to an appeal under Part 5 of the Act. Accordingly, s 17 does not exclude the application of the Supreme Court Act or the SCR to proceedings such as the present.
Section 124(1) of the Supreme Court Act confers a rule-making power with respect to certain purposes, including: "(j) for regulating any matters relating to the costs of proceedings in the Court and, in particular, prescribing, limiting or otherwise affecting the costs recoverable in any action or proceedings that the Court considers might properly have been dealt with in an inferior court"
Part 51B of the Supreme Court Rules 1970 (NSW) (SCR) provides, by r 2, that proceedings under Part 5 of the Act are to be commenced in the Common Law Division by summons. SCR Pt 51B, r 14 confers power on the Court to order security for costs. This is the only reference to costs in the SCR which applies to proceedings under Part 5 of the Act. Since the enactment of the Civil Procedure Act 2005 (NSW), several matters which were in the Supreme Court Act and the SCR became the subject of regulation in the Civil Procedure Act and the Uniform Civil Procedure Rules 2005 (NSW).

Provisions classifying proceedings as either civil or criminal

Section 3 of the Civil Procedure Act defines "criminal proceedings" as including proceedings on an appeal against conviction. It defines "civil proceedings" as "any proceedings other than criminal proceedings". Section 4 provides that Parts 3-10 apply, relevantly, to civil proceedings. Section 98 is contained in Part 7 of the Civil Procedure Act and, therefore, does not apply to the present proceeding.

The legislative basis for charging court fees

The fees charged by this Court are provided for in the Civil Procedure Regulation 2017 (NSW), which applies to civil proceedings, and the Criminal Procedure Regulation 2017 (NSW), which applies to criminal proceedings. Clause 4 of the Civil Procedure Regulation relevantly provides: "4 Fees payable in relation to court proceedings (1) This clause applies in relation to civil proceedings in the following courts: (a) the Supreme Court, (b) the Land and Environment Court, (c) the District Court, (d) the Local Court. (2) The fee that a person must pay in respect of a matter referred to in Column 1 of Schedule 1 is: (a) the fee specified in respect of that matter in Column 2 of that Schedule…"
Schedule 1 sets out the court fee for, relevantly, filing a summons such as the one filed by the plaintiff to commence these proceedings, which is presently $1,143 and was, at the time of commencement of these proceedings, $1,123 (item 1 of Part 1 of Schedule 1 of the Civil Procedure Regulation). The court fee for a hearing before a judge is presently $2,280 (item 7 of Part 1 of Schedule 1 of the Civil Procedure Regulation), which was the applicable fee for civil proceedings as at the date of the hearing.
As referred to above, although the Court purported to charge these fees, they were not authorised by the Civil Procedure Regulation, since the Civil Procedure Regulation applies only to civil proceedings.
There is no general definition of "criminal proceedings" in the Criminal Procedure Act 1986 (NSW). Part 3 of Chapter 2 of the Criminal Procedure Act is entitled "Criminal proceedings generally". It contains s 28(1), which provides "This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with."
Section 4 of the Criminal Procedure Act is the general regulation-making power. In addition, s 4A of the Criminal Procedure Act provides, in part: "4A Fees (1) The regulations may make provision for or with respect to the following matters: (a) the fees payable to a court in relation to the conduct of criminal proceedings in the court..: … … (5) In this section, criminal proceedings means proceedings for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence."
The Criminal Procedure Regulation 2017, made under ss 4 and 4A of the Criminal Procedure Act, makes provision for fees to be charged for criminal proceedings.
Clause 12 of the Criminal Procedure Regulation provides for amounts to be paid for court proceedings. These amounts are set out in Schedule 2 to the Regulation. While the Criminal Procedure Regulation, in Part 1 of Schedule 2, makes provision for the fees to be charged in respect of applications brought under Parts 2, 3 and 4 of the Act, no provision is made for fees to be charged for applications brought under Part 5 of the Act.

Whether proceedings under Part 5 of the Act are criminal or civil

The effect of s 3 of the Civil Procedure Act, when read with ss 4A and 28 of the Criminal Procedure Act, is that an appeal under Part 5 of the Act constitutes "criminal proceedings". However, the practice of this Court, at least in the Registry, appears to have been to treat appeals under Part 5 of the Act as civil proceedings, presumably because they are commenced by summons and heard in the Common Law Division (although criminal proceedings are also heard in that division). This practice would explain the fees charged by the Court for filing and hearing etc. Decisions of this Court have, in some instances, proceeded on the basis that the costs regime for such proceedings is that which applies to criminal proceedings: Cunningham v Cunningham (No 2) [2012] NSWSC 954 (Button J) and Turner v Wheeler (No 2) [2016] NSWSC 431 (Campbell J).
Because proceedings under Part 5 of the Act are not civil proceedings, the fees charged by the Court for the filing of the summons and for the hearing are ultra vires. No statutory authorisation other than the Civil Procedure Regulation has been suggested and it does not apply.

The power to order costs of the proceedings in this Court

The first question that arises is whether I have power to order the DPP to pay the plaintiff's costs of the appeal.
In Cunningham v Cunningham (No 2) Button J noted the lack of express power to order costs in proceedings under Part 5 of the Act but decided that the scope of the power under s 23 of the Supreme Court Act was sufficient to confer such power. In Turner v Wheeler (No 2), Campbell J was satisfied that s 55(3) of the Act, when read together with s 72, was sufficient to authorise the ordering of costs in favour of an appellant who was the defendant in the Local Court. I note that s 55(3)(a) applies only to orders made in committal proceedings or interlocutory orders, neither of which is relevant in the present case.
I accept, and it was common ground, that I have power pursuant to s 70 of the Act. Although s 70 does not, in terms, confer power to order costs, the power arises by necessary implication from ss 70 and 72. I accept the DPP's concession that s 70(1)(d) would empower me to order costs in the plaintiff's favour.

Whether costs ought be ordered under s 70 of the Act

Section 70(1)(a), (b) and (c) of the Act

I am not satisfied of any of the matters set out in s 70(1)(a), (b) or (c) of the Act for the following reasons.
The detailed facts appear in the principal judgment and need not be repeated except in summary form. The prosecutor offered to accept a plea of guilty to two counts under s 192G(b) of the Crimes Act of dishonestly making a false statement with the intention of obtaining a financial advantage in return for withdrawing the balance of the charges. I found in the principal judgment that those charges were not available as a matter of law in the circumstances alleged. The plaintiff had also been charged with attempting to pervert the course of justice under s 319 of the Crimes Act. This charge was withdrawn as part of the plea bargain referred to above. However, the charge under s 319 of the Crimes Act was open as a matter of law since the conduct the subject of the charge was making false statements to the Local Court that statements of claim had been served with a view to entering default judgments and obtaining garnishee orders. Thus, it could not be said that the investigation of the offences was conducted in an unreasonable or improper manner since the facts, if proved, would constitute a legally available offence. For this reason, it cannot be concluded that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner. Nor am I satisfied that the prosecutor failed to investigate any relevant matter. Accordingly, none of the matters in s 70(1)(a), (b) or (c) of the Act has been established.
As referred to in the introduction to these reasons, the appeal was allowed because the conviction was ordered following the acceptance of a plea to two offences which were not available as a matter of law because the false statements alleged to have been made for financial advantage were made in the course of court proceedings. The plaintiff brought the authority on the basis of which I allowed the appeal, Jamieson v The Queen; Brugmans v The Queen, to the attention of the prosecutor and the Local Court. I can only assume that its import was not appreciated at the time. It was thus necessary for the plaintiff to bring the appeal in order to vindicate his right not to be convicted of an offence which was not available as a matter of law in the circumstances alleged.
As I explained in the principal judgment, an offence under s 192G of the Crimes Act was not available as a matter of law because it did not apply to false statements made in the course of legal proceedings. This does not mean that a party who makes false statements for financial advantage in legal proceedings has some kind of immunity. Rather, it means that the prosecutor must charge such a person with an offence which applies in that context. The offence under s 319 of the Crimes Act of attempting to pervert the course of justice is an offence which does apply in the context of legal proceedings. I am satisfied that these circumstances amount to exceptional circumstances within the meaning of s 70(1)(d) of the Act.
For these reasons, I am satisfied that an order for costs ought be made in favour of the plaintiff.

Quantification of costs and whether a lump sum costs order can be made

As the plaintiff appeared on his own behalf, there are significant limits which are placed on the costs which can be awarded in his favour. In essence, he is limited to the type of disbursements which would be recoverable for a litigant who is legally represented and is not entitled to recover costs for his time.
The plaintiff claims costs in the sum of $8,351.10, comprised of the amounts set out in the table below. Item no Amount Description 1 $1,169.30 Expenses for obtaining legal advice 2 $856 Enrolment expenses in course in Ancient Greek History to give plaintiff access to legal databases 3 $4,200 Expenses of prosecuting his appeal in this Court 4 $93 Expenses of the stay application in the Local Court 5 $183 Filing fee of appeal in the District Court 6 $819.80 The costs of the notice of motion for costs 7 $30 Travel disbursements 8 $1,000 Photocopying, including printing scanning and binding

As referred to above, s 98 of the Civil Procedure Act does not apply to these proceedings. However, there is power to award costs in these proceedings and Parliament has stipulated in s 72 of the Act that I must specify the date by which such costs are to be paid. As costs cannot be paid until they are quantified, I am satisfied that the jurisdiction conferred by s 23 of the Supreme Court Act (all jurisdiction which may be necessary for the administration of justice in New South Wales) authorises me to make an order for costs in terms of a lump sum payment: Turner v Wheeler (No 2) at [15] (Campbell J).
I propose to deal with the items claimed above in turn.

Item 1: expenses for obtaining legal advice

Item 1 relates to an invoice dated 12 October 2018 for fees charged by Pure Legal for the period from 7 August 2018 to 12 October 2018. These fees relate to the proceedings in the Local Court. The end-date of the invoice precedes the date on which the plaintiff indicated that he was prepared to plead guilty, as appears from the narrative in the principal judgment. These fees, accordingly, did not relate to the matter on which the plaintiff was successful in this Court. I do not consider that they ought form part of the costs to which the plaintiff is entitled, even if the plaintiff was entitled to costs of the Local Court proceedings. This matter is addressed below.

Item 2: enrolment fees to give plaintiff access to legal databases

The plaintiff explained that, in order to obtain access to legal databases, he enrolled in course AHIS100, Introduction to Ancient Greek History, at Macquarie University for a fee of $856. He deposed that he "would never have enrolled in the subject had it not been for the proceedings". I put to him that the principal decision on which he relied, and on the basis of which I found that the appeal ought be allowed, Jamieson v The Queen; Brugmans v The Queen, was available on free databases such as Austlii and the High Court's own website. The plaintiff submitted in response that this fee ought be allowed because he needed access to such databases in order to approach the hearing in a "Rolls Royce way".
The defendant opposed this fee being allowed for costs. Ms Gleeson, who appeared for the DPP, tendered the course material for the subject Introduction to Ancient Greek History to show, as if its title were not enough, that there was no overlap between the course content and these proceedings. She also tendered a document entitled "Acceptable Use of IT [information technology] Resources" (the Policy) downloaded from the Macquarie University website. The Policy provided, in cl 4.1, that general authorisation to use Information Technology Resources was granted on enrolment. The term "authorised purposes" was relevantly defined to mean purposes associated with work or study in the university and "limited personal use". The term "limited personal use" was relevantly defined to mean use that "is of a purely personal nature and not for financial gain". The term "misuse" was defined to mean "use for any purpose other than an authorised purpose". Ms Gleeson submitted that it was plainly an abuse of university procedure for the plaintiff to enrol in a course for the purpose of obtaining access to legal databases. She submitted on that basis that this Court ought not allow this expense.
In his affidavit sworn on 9 December 2019, the plaintiff stated that his occupation was "director and company secretary of Quick Collect Pty Ltd". This presumably reflects the fact that, since his conviction has been set aside, he is no longer disqualified from being a director of a company. He described the consequences of his conviction in the Local Court as amounting to "civil death" and listed various financial consequences including, before the conviction was set aside, the capacity to work as a company director because he was automatically disqualified; the capacity to work in "the legal field"; and the capacity to obtain finance. The connection between the use of the legal databases for this appeal and the plaintiff's financial future has the effect that his use of the databases was in breach of the Policy since it was for financial gain and cannot be described as merely personal use.
I accept the DPP's submissions. This Court ought not be party to an abuse of the Policy and ought not allow the enrolment fee. It is not to the point that subscription to the legal databases may have been significantly more expensive than enrolment in Introduction to Ancient Greek History. The ends (obtaining access to legal databases at a lower cost) did not justify the means (which were unauthorised and in breach of the Policy).

Item 3: expenses of prosecuting the appeal in this Court

The sum of $4,200 claimed under item 3 comprised the following amounts: Description of fee Amount of fee A Filing fee for motion seeking a stay in the Local Court $93 B Filing fee for the summons in this Court (filed 10 April 2019) $1,123 C Filing fee for the motion in this Court for a stay of the proceedings in the Local Court (heard by Wilson J on 14 May 2019) $411 D Filing fee for motion seeking separate determination in this Court (heard by Johnson J on 9 July 2019) $411 E Hearing fee in this Court (for hearing on 19 November 2019) $2,280

The total amount of these items is $4,318, although the amount claimed for item 3 is $4,200. The discrepancy is immaterial for the reasons that follow since it is necessary to address each item individually.
Item A relates to an application made by the plaintiff in the Local Court for a stay of proceedings. The question of the costs in the Local Court will be considered further below. However, it is important to record that after Greenwood LCM dismissed the plaintiff's application for withdrawal of his plea on 4 April 2019, the plaintiff withdrew his stay application and foreshadowed an appeal to this Court. In these circumstances, even if he were entitled to costs in the Local Court, he would not be entitled to the filing fee of this notice of motion. Furthermore, the entitlement to costs in the Local Court is limited to professional costs and does not include "court fees": see ss 211 and 213 of the Criminal Procedure Act set out below.
Items B and E are not payable since, for the reasons given above, there is no statutory authorisation for these fees to be charged.
The motion referred to in C was heard and determined in this Court by Wilson J on 14 May 2019 (see narrative in the principal judgment at [40]). Her Honour dismissed the motion with no order as to costs. There is no occasion to revisit this order. Accordingly item C is not allowed.
The motion referred to in D was heard and determined in this Court by Johnson J on 9 July 2019. His Honour dismissed the notice of motion and ordered the plaintiff to pay the DPP's costs. In circumstances where the plaintiff was unsuccessful on the motion, the DPP is not obliged to pay the filing fee of the notice of motion, even were it otherwise payable (which I have found, on the basis of the analysis of the legal authorisation for payment of fees, it was not).
For these reasons, none of the amounts claimed in item 3 is payable by the DPP as costs.

Item 4: expenses of the stay application in the Local Court

These amounts do not constitute costs of the proceedings in this Court. The issue of costs in the Local Court will be separately considered below.

Item 5: filing fee of the appeal to the District Court

The plaintiff informed me that he filed an appeal to the District Court, for which a fee of $183 was payable, so that he could obtain a copy of the transcript in the Local Court at a reduced rate. He identified two other collateral benefits of commencing proceedings in the District Court: first, that he would have an appeal on foot if he were convicted and sentenced to a term of imprisonment which would assist him in obtaining appeal bail; and secondly, that he believed that he had actually been convicted, although he accepted that the proceedings in the District Court were "jurisdictionally hopeless". I am not persuaded that the costs for which the DPP is liable to pay to the plaintiff ought include item 5. As the proceedings were brought for a number of collateral purposes, they would appear to have been an abuse of the processes of the District Court.

Item 6: the costs of the present motion

The plaintiff submitted that he was entitled to the costs of the notice of motion for costs in this Court. This matter will be addressed at the conclusion of these reasons.

Item 7: travel disbursements

The plaintiff claims to be entitled to an amount of $30 for travel to and from Court. As he travelled by Opal card on public transport, this amount is relatively modest. The plaintiff submitted that lawyers are entitled to travel costs and that, accordingly, he ought be entitled to them. The DPP opposed travel expenses being allowed.
The question of travel expenses was considered by the High Court in Cachia v Hanes (1994) 179 CLR 403 at 417; [1994] HCA 14. The majority (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) said: "The disbursements claimed by the appellant and disallowed upon taxation were, on the one hand, travelling expenses in addition to a witness' fee for preparation and, on the other hand, travelling expenses to hear judgment. Either the appellant was entitled to the witness' fee or he was not; he was not entitled to travelling expenses in addition to or in lieu of the fee. And since the appellant was not entitled to any recompense for his appearance in court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose. They were not an out-of-pocket expense which would have been recoverable by him or his solicitor in this case had he been legally represented."
It would appear to be a discretionary matter whether travel expenses ought be allowed. In my view, they ought not be allowed in the present case.

Item 8: photocopying, including printing, scanning and binding

The DPP accepted that reasonable costs of photocopying and associated costs (for printing and binding) were allowable. The DPP contended that the plaintiff's claim was exorbitant, in part because it included the costs of printing the entire brief of evidence served on the plaintiff in the Local Court proceedings. The plaintiff sought to tender the entire brief on the appeal in this Court but it was rejected as being irrelevant to the appeal.
The plaintiff has tendered several invoices from printing and photocopying businesses, such as Officeworks and Glory Printing. He deposed in his affidavit as to the extent of the "printing task" as follows: "That printing task involved the following items: (i) Printing every authority dealing with the Skinner privilege [named after R v Skinner (1772) Lofft 54; 98 E.R. 529]. (ii) Printing every case involving section 178BB [of the Crimes Act] since its introduction which was reported and unreported. (iii) Printing my scanned copy of the entire brief of evidence. (iv) Printing every document relied upon in the Local Court proceedings. (v) Printing every document relied upon in the Supreme Court proceedings."
Many items in this list are not allowable. The printing of the entire brief from the Local Court was unnecessary for the purposes of this appeal. Nor was it necessary to print every case on each section. The cost of printing a page varies depending on the number of pages printed. For example, for a quantity of pages between 1 and 500, the price per page is 20c; for a quantity of pages greater than 1501 copies, the price per page comes down to 12c. An allowance of $100 at a rate of 20c per page amounts to 500 pages. I consider this figure to be reasonable in the circumstances of the case.
Although the table prepared by the defendant (MFI 1) would appear, on one reading, to concede allowance for a greater sum, Ms Gleeson made it plain in oral submissions that the DPP's figure reflected the upper limit of the calculation based on an amount per page and was not the conceded figure.

The transcript of the proceedings in this Court

The plaintiff also claimed the cost of the transcript of the hearing in this Court and submitted that it was necessary that he have it for the purposes of the costs application. I am not satisfied that this is a reasonable expense. The principal judgment sets out the basis of my decision.

Purchase of Adobe Acrobat

The plaintiff deposed that he was obliged to purchase Adobe Acrobat so that he could split pdf files and combine all the cases together. He claimed the amount of $269.80, which was for a yearly subscription (the figure in the invoice is $263.87 per year) which commenced on 28 November 2019 (a week after the principal judgment was delivered). I do not accept that this expense is reasonably related to the proceedings and I do not allow it.

Filing fee for the notice of motion for cost

As referred to above, it was not necessary for the plaintiff to file a notice of motion for costs as provision for such an application had been made in my orders in the principal judgment. Moreover, such a fee is not payable, for the reasons given above, as these proceedings are criminal proceedings.

Cost of printing various cases for the application for costs

The plaintiff also claimed a further $50 for printing various cases for his costs application. This figure would form part of the costs of the application, which will be considered below.

Claim for costs of the Local Court proceedings and alternative claim for remitter

In the course of the hearing before me, the plaintiff raised a further claim, being for costs of the Local Court proceedings. He submitted that, if I were not disposed to make such an order, I ought remit the matter to the Local Court. Leaving aside the late notice for such an application there is a real question whether such a course ought be adopted even if it were open. The starting position is that orders for costs are not made in criminal proceedings: Latoudis v Casey (1990) 170 CLR 534 at 557 (Dawson J); [1990] HCA 59. A Local Court may award costs in summary proceedings only in accordance with the Criminal Procedure Act or under the Costs in Criminal Cases Act 1967 (NSW): s 212 of the Criminal Procedure Act.
Section 213 of the Criminal Procedure Act provides for the circumstances in which professional costs may be awarded to accused persons in summary proceedings. It provides: "213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because - (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. … (5) The order must specify the amount of professional costs payable."
Section 211 defines "professional costs" as: "professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court."
The power in s 213 is limited by s 214 of the Criminal Procedure Act, which deals with awards against a prosecutor acting in a public capacity. Section 214 of the Criminal Procedure Act is in similar terms to s 70 of the Act and provides: "214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following - (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs."
The recovery of costs in criminal cases is also the subject of legislation in the Costs in Criminal Cases Act. Section 2(1) provides: "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings."
The plaintiff submitted that, where this Court has allowed his appeal from the Local Court under Part 5 of the Act, the Court plainly had power to order the DPP to pay his costs of the Local Court proceedings. He cited Tabcorp Holdings Ltd v Fitzsimons [2007] NSWSC 836; (2007) 176 A Crim R 28 (Tabcorp) in which Harrison J made such an order.
In Tabcorp, the order for costs of the Local Court proceedings was made by consent, as appears from the following extract from his Honour's reasons, at [54]: "Decision The plaintiff sought relief alternatively in the terms of paras 1 and 2 of the Summons. For the reasons set forth above, in my opinion the plaintiff has made out an entitlement to relief in terms of either of these paragraphs. At the conclusion of the argument before me I asked the parties to provide me with a draft form of the orders for which they respectively contended. The orders that I propose to make are in accordance with the draft provided to me by the plaintiff. Orders 1. The plaintiff is granted leave to appeal under s 53(3) of the Crimes (Appeal and Review) Act 2001 against the order made by Magistrate O'Shane on 13 April 2007 dismissing the plaintiff's application to dismiss, strike out or stay prosecutions commenced in the Local Court on 3 January 2007 by the first defendant as prosecutor (the prosecutions). 2. The appeal is allowed. 3. The prosecutions are dismissed. 4. The first defendant to pay the plaintiff's costs (including the costs of the proceedings in the Local Court)."
Tabcorp is distinguishable from the present case since, in Tabcorp, leave to appeal was required and ss 53(3) and 55(3) of the Act applied. The power to make orders in s 55(3) of the Act following an appeal where leave has been required is arguably broader than the power in s 55(1)(a) since s 55(3) empowers the Court to set aside the order and make "such other order as it thinks just", whereas the relevant power in s 55(1)(a) is expressed to be limited to "setting aside the conviction". Further, the question was not argued in Tabcorp and, as referred to above, the orders made by Harrison J in Tabcorp were made by consent.
Ms Gleeson, in order to discharge her duties as counsel, referred me to a further decision in which this Court had, following successful appeals under Part 5 of the Act, made costs orders for the proceedings in the Local Court. In Campbell v Director of Public Prosecutions (NSW) [2009] NSWSC 973 Hidden J ordered the defendant to pay the plaintiffs' costs of the appeal "and in the court below". It would appear that these orders may have been made by consent, the judgment on the substantive appeal having been delivered the previous week.
However, even assuming that there was such a power, I do not consider that it ought be exercised in the circumstances of the present case. The plaintiff has appeared for himself. Although he engaged Pure Legal to advise him for a period in 2018, I infer from the chronology set out in the principal judgment that Pure Legal was not the source of the advice that led to the conviction being overturned. There is no evidence that the plaintiff incurred any other professional costs. The prosecutor in the Local Court was acting in a public capacity and therefore s 214 of the Criminal Procedure Act applies.
The point raised by the plaintiff which led to his appeal being upheld in this Court formed only a small part of the proceedings in the Local Court (the course of which was narrated in the principal judgment and need not be repeated here). There was no legal reason why the charge under s 319 of the Crimes Act was not a legally available charge. The plea bargain, though ultimately found to be invalid because it entailed a plea by the plaintiff to legally unavailable charges, was more beneficial to the plaintiff than a conviction (whether as a result of a plea or after a contested hearing) under s 319 of the Crimes Act. He was prepared to plead guilty to the lesser charges and raised their invalidity relatively late in the proceedings, after he had indicated his preparedness to plead to them. In these circumstances, I am not persuaded that it would be appropriate to make a costs order in his favour in the Local Court even had I power to do so.
Nor do I consider it to be appropriate to remit the matter to the Local Court for such a decision to be made. The proceedings in the Local Court were relatively long and complex. Because I heard the appeal in this matter, I have made findings about what occurred in the Local Court. It would not advance matters for this question to be remitted to the Local Court in these circumstances.

Costs of the application for costs

The difficulty with the plaintiff's submission that he is entitled to the costs of his application for costs is that the DPP accepted that it was appropriate that an order for costs be made in his favour by reason of the circumstance that it fell within s 70(1)(d) of the Act. This was a significant concession. No notice of motion was required in any event since I granted liberty to the parties to apply on costs when I made orders in the principal judgment.
The plaintiff's claim for costs was, as the reasons above indicate, exorbitant. He has failed on all but one of the items. The only amount allowed has been $100 for printing and photocopying expenses. In these circumstances I am not persuaded that he is entitled to an order for the costs of the notice of motion. The figure of $100 exceeds the amounts acknowledged by the DPP to be allowable (in part because the DPP accepted that the court fees were intra vires and validly charged).

Further application following reserving of judgment

On 12 December 2019, the plaintiff wrote to my Associate, seeking permission to put on further submissions in this matter. He said that he had taken advice from senior counsel as to "an issue". I declined leave to put on submissions. In a further email to my Associate, the plaintiff sought reasons for my decision not to allow further submissions. The reason for my refusal is that there must be an end to litigation. The plaintiff has had ample opportunity to explain why he ought obtain an order for costs (a matter which was, in any event, conceded) and in what sum such costs ought be ordered. He adduced affidavit evidence and made submissions, orally and in writing, in support of his application. I reserved my decision, having heard from both parties on all questions. The parties and this Court are entitled to finality. I am not persuaded that it would be in the interests of the administration of justice to prolong this dispute further by allowing the plaintiff the opportunity to make further submissions.

Orders

For the reasons given above, I make the following orders: 1. Refuse the plaintiff's application made on 12 December 2019 to put on further submissions. 2. Order the defendant to pay the plaintiff's costs of the proceedings in the sum of $100, such amount to be paid within 28 days hereof. 3. Otherwise make no order as to costs.

Amendments 27 November 2023 - Publication restriction removed - judgment republished 12 June 2024 - Publication restriction removed - judgment republished 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: 12 June 2024

At a glance

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Judgment (32 paragraphs)

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