Costs in Criminal Cases Act 1976

Definitions and scope

• "Costs" is defined narrowly in s 2 to mean expenses properly incurred by a defendant. The definition expressly excludes expenses incurred by the State, Commonwealth, or other body by way of legal aid to the defendant. That is the statutory baseline as to what constitutes recoverable costs under the Act.
• "Defendant" is simply any person charged with an offence (s 2).
• "Public officer" and "State authority" are defined for the delivery and enforcement mechanics in s 2. "Public officer" expressly includes police officers and probation officers. "State authority" covers bodies constituted or established by or under any Act, or appointed by the Governor under an Act, to administer or control a department, business, or undertaking on behalf of the State.

Entitlement and discretionary criteria

• Core entitlement for defendants discharged from proceedings comes from s 4(1). The court may, on application by the defendant, order payment of "such costs as it thinks just and reasonable" where the defendant has been acquitted, the complaint dismissed or withdrawn, or discharged on an indictment. This is a discretionary remedial power.
• Section 4(2) prescribes matters the court must have regard to in deciding whether to grant costs and in fixing the amount. These enumerated matters include: whether proceedings were brought and continued in good faith, whether proper investigatory steps were taken by those responsible for bringing or continuing the proceedings, whether the investigation was conducted in a reasonable and proper manner, whether the evidence as a whole supported guilt but the defendant was discharged on a technical point, and whether the defendant established factual innocence by evidence or cross-examination.
• Sections 4(3)-(5) set out several limiting rules: costs are not to be awarded merely because of an acquittal or dismissal (s 4(3)); costs are not to be withheld merely because proceedings were properly brought and continued (s 4(4)); and costs are not to be withheld merely because the defendant remained silent or refused to assist in the investigation (s 4(5)). These clauses constrain absolute rules for or against awarding costs.

Costs for convicted defendants

• Section 5 provides a narrow head of costs for a convicted defendant, limited to instances where the charge involved a difficult or important point of law and the court, in the special circumstances of the case, considers it proper to award costs for arguing that point of law.

Quantification, taxation and scales

• Section 5A allows courts to have regard to any scale of costs, fees or expenses prescribed or agreed under any enactment when determining what is "just and reasonable". If a scale is relied on, the court must specify that scale in the order (s 5A(1)-(2)). The Registrar or Clerk may be directed to tax costs (s 5A(3)) and any taxation under that subsection may be reviewed by the magistrate or judge presiding (s 5A(4)).

Notice and enforcement mechanics

• Section 6 prescribes to whom the court must deliver a copy of any order: to the Secretary of the Department in cases on indictment or where the complaint is made by a public officer; to the State authority where the complaint is on behalf of that authority; to the municipal corporation where the complaint is by or on behalf of that corporation; or to the complainant in other cases (s 6(1)). Section 6(2) makes the order enforceable as a judgment in a court of competent jurisdiction.

Regulatory and temporal parameters

• The Governor may make regulations for the purpose of the Act (s 7(1)). Subsection (2) has been omitted by a later amendment (annotation included).
• Section 1(2) provides commencement by proclamation.
• Section 9 allows limited retrospective application for discharges on or after 1 July 1976 that occurred before commencement, enabling courts of like jurisdiction to make costs orders as if the Act had been in force at the time.

Structural consequences

• The Act binds the Crown (s 3). Combined with the delivery mechanics in s 6 and the exclusion of legal aid from recoverable "costs" (s 2), the Act separates statutory liability for legal aid from recoverable expenses properly incurred by a defendant.

These core concepts define the remedial framework, decision-making criteria, quantification mechanics, delivery and enforcement path, and the limited retrospective application of the Act.

Defendants

• The Act directly affects any person charged with an offence as defined by "defendant" in s 2. Its primary beneficiaries are defendants who are discharged from proceedings in the ways listed in s 4(1) or, in a narrow class of cases, convicted defendants who successfully satisfy s 5’s criteria.

Prosecuting bodies and complainants

• Complainants who commenced or continued proceedings can be liable to pay costs ordered under the Act because s 6 prescribes delivery of the order to the complainant in "any other case" and s 6(2) makes such orders enforceable as judgments. Where the complaint is made by or on behalf of a State authority, the order is to be delivered to that authority (s 6(1)(b)). Where the complaint is by a municipal corporation, the order is delivered to that corporation (s 6(1)(c)). Where proceedings were on indictment or a complaint is made by a public officer, the order is to be delivered to the Secretary of the Department (s 6(1)(a)). These delivery prescriptions identify the institutional payers and notice recipients.

The Crown and State agencies

• The Act binds the Crown (s 3). That means the Crown can be subject to liability for costs orders in appropriate cases, subject to the definition of "costs" in s 2 that excludes legal aid payments by the State or Commonwealth. The mechanics in s 6(1)(a) for delivery where proceedings were on indictment or a public officer brought the complaint suggest administrative departments will receive notice of orders that may require payment from departmental funds. State authorities and municipal corporations are similarly identified as the entities to receive orders when they are the complainant or acting on behalf of complainants.

Legal practitioners and court officers

• Legal practitioners prosecuting or defending must consider the Act’s discretionary standards. Courts, registrars, clerks and fiscals are affected by s 5A which authorises taxation by the Registrar of the Supreme Court or Clerk of Petty Sessions if directed by the court, and by the review mechanism in s 5A(4) that allows review by the presiding magistrate or judge.

Investigative agencies and police

• Investigative bodies, notably police (explicitly included in the "public officer" definition at s 2), are indirectly affected because the court must consider the reasonableness of investigation and whether proper steps were taken by persons responsible for bringing or continuing proceedings (s 4(2)(b)-(c)). These criteria create incentives for investigative diligence.

Insurance, indemnity and third parties

• The Act’s wording identifies the recipient of an order rather than specifying payment sources. Where a complainant is a private individual, that person will receive the order (s 6(1)(d)) and may be required to pay as a judgment. Where a complainant is a public entity, the relevant department or authority will receive the order and handle payment. The Act does not address indemnities or insurance arrangements, or whether a paying authority may recover from the individual prosecutor or officer.

Temporal coverage beneficiaries

• Section 9 permits persons discharged on or after 1 July 1976 but prior to the Act’s commencement to apply to a court of like jurisdiction to make a costs order that could have been made had the Act been in force at the time. That provision directly affects persons discharged in that window by preserving their ability to seek orders.

In sum, defendants (as applicants), complainants and prosecuting bodies (as potential payers), courts and registries (as administrators), and investigative bodies (indirectly via the statutory criteria) are the primary affected parties. The Act binds the Crown so government agencies are both subject to orders and targeted recipients for notices depending on who instituted proceedings.

Court duties and discretions

• The court has the discretion to order costs to a defendant discharged from proceedings under s 4(1), but that discretion must be exercised having regard to the matters listed in s 4(2). Those matters are mandatory items the court "shall have regard to" in both the decision to grant costs and the quantum. The court must also respect the constraints in s 4(3)-(5) which remove automatic entitlement on acquittal and prohibit refusal of costs solely because proceedings were properly brought or because the defendant remained silent during investigation.
• For convicted defendants, the court’s power is tightly framed by s 5 and depends on the court forming an opinion that the charge involved a difficult or important point of law and that special circumstances make it proper to award costs for arguing that point.

Registrar, clerk and taxation duties

• If the court directs, the Registrar of the Supreme Court or the Clerk of Petty Sessions must tax any costs granted under the Act (s 5A(3)). Where taxation occurs under that subsection, the taxation may be reviewed by the presiding magistrate or judge (s 5A(4)). The court must specify any scale relied on in the order if it has had regard to a scale under s 5A(1)-(2).

Delivery and enforcement duties

• Upon making an order, the court must deliver or cause to be delivered a copy of the order to the appropriate recipient depending on who initiated the complaint (s 6(1)(a)-(d)). The order is enforceable as a judgment of a court of competent jurisdiction (s 6(2)). The duty to deliver is a statutory obligation of the court, with the recipient varying by category of complainant.

Governor’s regulation-making power

• The Governor may make regulations for the purpose of the Act (s 7(1)). The specific content and scope of regulations is not set out in the text, but the power identifies an administrative duty to fill any procedural or ancillary matters by subordinate instrument.

Rights of defendants

• Defendants who have been discharged in the ways listed in s 4(1) have a statutory right to apply for an order for payment of costs. The statute entitles them to have the court consider the enumerated factors at s 4(2). The Act also protects defendants from an automatic denial of costs merely because proceedings were properly brought and continued or because the defendant remained silent (s 4(4)-(5)).
• Defendants who are convicted retain a narrowly framed right to seek costs for the argument of a difficult or important point of law in special circumstances (s 5), although this is much more limited than the post-acquittal entitlement.

Rights of complainants and payers

• Complainants who receive a cost order have the right to defend the enforcement of the order or to pay, and to seek whatever internal administrative or legal remedies govern payment from departmental or municipal funds. The Act converts the costs order into an enforceable judgment (s 6(2)), which grants the recipient of the order the legal status of a judgment creditor against the person or entity ordered to pay.

Procedural rights in quantification

• The Act gives parties the right to have costs quantified with reference to scales if the court elects to have regard to such scales (s 5A(1)-(2)). Where taxation is directed, the parties have the right to a taxation by the Registrar or Clerk (s 5A(3)) and to a review of that taxation by the presiding magistrate or judge (s 5A(4)).

Limits and exclusions

• The statutory definition of "costs" excludes expenses paid by way of legal aid from recoverable costs (s 2). That exclusion curtails attempts to recover legal aid sums from third parties under the Act.

Temporal and retrospective rights

• Section 9 creates a procedural right for persons discharged on or after 1 July 1976 and prior to commencement to apply to a comparable court for an order that could have been made had the Act been in force at the time.

In short, the Act delegates a discretionary but structured power to courts, imposes delivery and taxation procedures, creates rights for defendants to seek costs subject to statutory criteria and limits, and obliges registrars, clerks and state entities to receive and deal with orders. The Act also places a definitional limit on recoverable items by excluding legal aid.

Enforcement mechanism

• The Act does not create criminal penalties; its enforcement mechanism is civil. Any order made under s 4 or s 5 is "enforceable in a court of competent jurisdiction as a judgment of that court" (s 6(2)). That directly converts a costs order into the same enforceability status as a civil judgment.

Practical consequences of enforcement as a judgment

• Once a costs order is delivered and treated as a judgment it attracts the remedies available to judgment creditors under ordinary civil enforcement processes in the courts of competent jurisdiction. The Act itself does not catalogue those enforcement processes. The Act’s reliance on conversion to a judgment imports the available civil enforcement toolbox, for example writs or garnishee processes available to judgment creditors, though the Act does not expressly identify specific enforcement steps beyond the conversion to judgment.

Addressees and practical payer mechanics

• Section 6(1) prescribes delivery of the order to different recipients depending on the nature of the complainant. When the complainant is a public officer or the proceedings are on indictment, the order must be delivered to the Secretary of the Department (s 6(1)(a)). Where the complaint is by or on behalf of a State authority, the order goes to that authority (s 6(1)(b)). For municipal corporations the order goes to the corporation (s 6(1)(c)). In any other case the complainant receives the order (s 6(1)(d)). Delivery to the appropriate institutional recipient is the prelude to civil enforcement. That delivery mechanism allocates notice and operationalises enforcement by identifying the legal entity to be treated as the judgment debtor or the entity that will be accountable for arranging payment.

No express immunity for public officers or officials

• The Act binds the Crown (s 3) and does not provide exceptions for public officers or departments. The fact that the Act excludes legal aid payments from "costs" (s 2) means that payments of legal aid by the State are not recoverable under the Act, but the Act does not immunise departments or authorities from costs otherwise ordered to be payable.

Taxation and review

• Section 5A allows the court to direct the taxation of costs by the Registrar or Clerk (s 5A(3)), and any taxation made pursuant to that subsection may be reviewed by the magistrate or judge presiding in the proceedings in respect of which the costs are granted (s 5A(4)). Those provisions create an administrative adjudicative step in enforcement that controls the amount of a costs judgment and allows a review limited to the presiding judicial officer.

Limits on penalties

• The Act contains no penal sanctions or fines for non-compliance beyond the civil enforcement mechanisms available for judgments. The Act does not specify interest on unpaid amounts, nor does it set time limits or prescribe priority among creditors. Those matters are left to the broader civil enforcement framework.

In summary, the Act’s enforcement model is civil: costs orders are made by the criminal court but enforced as civil judgments. The Act prescribes who is to receive notice of the order, makes the Crown subject to the Act, excludes legal aid from recoverability, and provides administrative taxation and review procedures for quantification of the judgment.

Binding the Crown and separation of legal aid

• The Act expressly binds the Crown (s 3). This creates a statutory lease of liability with respect to costs orders, but the Act’s definition of "costs" excludes sums paid to defendants by way of legal aid provided by the State, Commonwealth, or other body (s 2). That distinction separates recoverable private expenses properly incurred by a defendant from public legal aid expenditures, which are excluded from recovery under the Act. The consequence is that other statutes or schemes that create or fund legal aid are not overridden to make their payments recoverable under this Act.

Reference to scales under any enactment

• Section 5A(1) permits the court, in determining just and reasonable costs under sections 4 or 5, to have regard to any scale of costs, fees, or expenses "prescribed or agreed upon under any enactment". That cross-reference explicitly allows interaction with other statutory regimes that prescribe scales of costs or fees. Where the court relies on such a scale it must specify the scale in its order (s 5A(2)). The Act therefore anticipates quantification in relation to external statutory or contractual cost-scales.

Procedure and enforcement in civil courts

• Section 6(2) declares that an order made under sections 4 or 5 is "enforceable in a court of competent jurisdiction as a judgment of that court". This cross-links the Act to the civil enforcement rules and procedures of courts of competent jurisdiction. The Act itself does not define those enforcement rules; it presumes their operation under general civil law. Legal practitioners and recipients must therefore look to civil procedure rules and statutes governing judgment enforcement to give effect to costs orders.

Administrative law and departmental payment processes

• Where orders are directed to Secretaries of Departments, State authorities or municipal corporations (s 6(1)(a)-(c)), the payment, budgeting and internal review processes will be governed by the administrative or financial management laws applicable to those entities. The Act does not displace those internal controls. It does, however, create a legal liability which those entities will have to discharge within the limits of their own financial and administrative arrangements.

Interaction with criminal procedure

• The Act allocates to criminal courts the power to order payment of costs, but the power to consider costs and make orders will be exercised in the course of criminal proceedings or following discharge. The Act does not prescribe special criminal procedure rules for deciding costs applications beyond the matters courts must have regard to under s 4(2). Any particular procedural steps not in the Act will be governed by existing criminal procedure rules and practice directions.

Regulatory scope and subordinate legislation

• The Governor is empowered to make regulations for the purposes of the Act (s 7(1)). The nature, scope and procedural detail of such regulations will interact with the Act’s text. Because s 7(2) has been omitted by later amendment, the Act leaves open the specific provisions that regulations may address. Any regulations made under s 7 must be read with the Act, and questions of validity or inconsistency would be resolved under ordinary statutory interpretation and subordinate instrument law.

Transitional and retrospective application

• Section 9 provides that, where a person was discharged on or after 1 July 1976 but before commencement, a court having like jurisdiction may, on application, make an order as to costs that could have been made under the Act had it been in force when the person was discharged. This creates a limited retrospective application in the interface between temporal operation of the Act and prior discharges. That transitional provision interacts with statutes of limitation, procedural bars, and any finality rules that applied in the earlier proceedings, although the Act itself requires only that a court of like jurisdiction may make such an order.

No express conflict resolution clauses

• The Act contains no express clauses addressing inconsistency with other statutes beyond the cross-references noted. Where inconsistency arises, the ordinary rules of statutory construction and constitutional law will determine precedence; the Act does not itself resolve those potential conflicts.

Overall, the Act interacts with other laws in four main ways: it binds the Crown while excluding legal aid as recoverable, it allows courts to apply external scales prescribed in other enactments, it converts costs orders into civil judgments enforceable under civil enforcement law, and it contemplates subordinate regulation under the Governor. Practitioners must therefore consider relevant legal aid statutes, scales or fee schedules in other legislation, civil enforcement rules, and departmental or municipal payment and administrative regimes when applying the Act.

The text supplied contains internal annotations indicating later amendments and insertions. The Act’s internal marginal notes identify the following changes and dates as incorporated in the present text:

• Section 5 was inserted by No. 17 of 1988, s 3. That insertion created the limited head of costs for convicted defendants where the charge involved a difficult or important point of law and special circumstances justify costs for arguing that point (see s 5).
• Section 5A was inserted by the same amendment (No. 17 of 1988, s 3). Section 5A sets out rules for determining the amount of costs, including permitting reference to scales prescribed or agreed under any enactment, requiring specification of the scale if used, and providing for taxation by the Registrar or Clerk and review by the presiding judicial officer (s 5A(1)-(4)).
• Section 6 has been amended repeatedly. The supplied text includes annotations that s 6 was amended by No. 51 of 1985, Schedule 2 and by No. 5 of 1990, Schedule 1. Additionally, subsection (1) of section 6 is indicated as amended by No. 17 of 1988, s 4. Those annotations show the delivery mechanics and enforcement provisions have been revised over time.
• Section 7(2) has been omitted by No. 17 of 1988, s 5. The removal of subsection (2) is noted in the text and the bracketed annotation reports the omission.
• The opening section 1 contains the standard commencement provision that the Act "shall commence on a date to be fixed by proclamation" (s 1(2)). The Act’s transitional clause in s 9 addresses discharges occurring on or after 1 July 1976 but before commencement, and the text does not indicate amendments to this provision.

The Act’s marginal notes therefore record a significant amendment in 1988 that added section 5 and section 5A, and the amendment history shows changes to section 6 and deletion of part of section 7. The supplied text does not include amendment dates other than those annotations, nor full legislative history beyond these insertion and amendment notes.

What the annotations tell a practitioner

• The 1988 amendment broadened the Act’s reach in two ways: it recognised a narrow costs entitlement for convicted defendants on points of law (s 5) and it formalised procedures for quantifying costs and involving scales and taxation (s 5A).
• The amendments to section 6 and the omission of a subsection in section 7 indicate that the delivery and regulatory architecture of the Act has been adjusted, presumably to clarify administrative recipients and the scope of subordinate regulations. The supplied text does not include the content of the omitted subsection or the earlier version of s 6, so the precise policy effects of those earlier forms cannot be ascertained from the current document.

Limitations of the supplied amendment annotations

• The annotations identify who inserted or amended particular provisions and the instrument numbers and section references for those amendments. They do not provide the full text of amending Acts, nor do they record any subsequent amendments after the annotations shown. Where a practitioner needs a complete legislative history, including earlier drafts or deleted text, they must consult the official statute revision history or version records.

In sum, the principal recorded amendment events in the supplied text are the 1988 insertion of s 5 and s 5A, and various amendments and deletions affecting s 6 and s 7 noted in the marginal annotations. The Act otherwise retains its original structure as presented.

No cases, judicial decisions or litigation outcomes are cited in the supplied Act text. The Act itself contains no annexed case law or judicial interpretative notes.

Potential interpretive issues likely to generate litigation

• The Act contains several open-textured phrases and mandatory matters of regard that invite judicial interpretation. Examples in the statute likely to be focal points for litigation include the following statutory terms and provisions:
  • "Just and reasonable" (s 4(1) and s 5) as the standard for quantum. The Act does not define this term or prescribe a formula for calculation. Section 5A permits regard to scales prescribed under other enactments, but absent a scale courts retain discretion to determine what is just and reasonable.
  • The list of matters the court "shall have regard to" when deciding whether to grant costs and the amount (s 4(2)) is broad and includes factual inquiries into investigatory steps, reasonableness of investigation, and whether evidence would support a finding of guilt but for a technical point. Disputes may arise as to the sufficiency of investigatory steps, what constitutes a "reasonable and proper manner" in investigation, and whether a discharge was due to a mere technicality that should or should not attract costs.
  • The scope of s 4(3)-(5) that both forbids an automatic award merely on acquittal and prevents denial of costs merely because proceedings were properly brought or because the defendant remained silent. Litigation may address how courts should balance these subclauses in their exercise of discretion and how they should articulate reasons when declining to award costs.
  • Section 5’s phrase that the charge "involved a difficult or important point of law" and that "in the special circumstances" it is proper to award costs to a convicted defendant is highly fact-dependent and likely to be litigated where convicted persons seek costs. What qualifies as a "difficult or important point of law" and how to define "special circumstances" are clear focal points.
  • The definition of "costs" in s 2 excludes legal aid payments by the State or Commonwealth. Litigation may arise where parties dispute whether particular disbursements qualify as "expenses properly incurred by a defendant" or whether they were in substance legal aid payments made on behalf of the defendant.
  • The practical effect of converting the costs order into an enforceable judgment under s 6(2) may give rise to procedural disputes over which court is "a court of competent jurisdiction" for enforcement and whether enforcement steps may be stayed or reviewed in the originating criminal jurisdiction.

Implications of absence of cited cases in the text

• Because the Act text contains no litigation history, practitioners must rely on judicial decisions interpreting these open-textured provisions to develop certainty. The Act’s substantive and procedural vagueness in these areas means that litigation, unless and until developed, will be the primary source of clarifying doctrine concerning the exercise of discretion, appropriate evidentiary standards for the matters in s 4(2), and quantification practices under s 5A.

Note on available resources

• The supplied Act text does not provide any references to case law, practice directions, or administrative guidelines. Users seeking binding authorities or precedent must consult the courts’ reported decisions and practice directions that post-date this Act to determine how courts have applied and interpreted these provisions.

In short, the Act in the supplied text contains no litigation history. The statutory language contains multiple interpretive points that present predictable future litigation risks and that will require judicial development to create consistent application across jurisdictions and fact patterns.

1. Costs are not automatic on acquittal

• Section 4(3) explicitly states no defendant shall be granted costs by reason only of the fact that he is acquitted, the complaint is dismissed or withdrawn, or he is discharged on an indictment. Practitioners should not assume acquittal triggers automatic entitlement. The court’s discretion and the matters in s 4(2) remain operative.

2. Legal aid payments are excluded from "costs"

• The statutory definition of "costs" in s 2 excludes expenses incurred by the State, Commonwealth, or any other body by way of legal aid to the defendant. This means any amounts paid to a defendant through a legal aid scheme are not recoverable under the Act. Practitioners must segregate legal aid-funded items from privately incurred expenses when making an application for costs.

3. Delivery mechanics prescribe institutional recipients

• Section 6(1) requires the court to deliver copies of orders to specific recipients. Failure to deliver to the correct entity (for example to the Secretary where the complaint was by a public officer) may complicate enforcement. Parties should ensure the court complies with s 6’s delivery requirements to activate the enforcement pathway.

4. Orders are civil judgments for enforcement

• Once made, a costs order is a judgment enforceable in a court of competent jurisdiction (s 6(2)). Costs victims must therefore rely on civil enforcement infrastructure to recover amounts, subject to the limits and remedies available to judgment creditors and debtors.

5. Narrow head for convicted defendants

• Section 5 provides a narrow remedy for convicted defendants that applies only where a difficult or important point of law was involved and special circumstances make costs proper. Do not equate the convicted-defendant remedy to the broader post-discharge entitlement in s 4; it is a distinct and limited head.

6. Quantification requires attention to scales and taxation

• The court may have regard to scales prescribed under any enactment (s 5A(1)) and must specify the scale if used (s 5A(2)). The court must direct taxation if the Registrar or Clerk is to tax the costs (s 5A(3)). Parties should ensure that any relied-upon scale is identified and that they seek taxation and review under s 5A(3)-(4) where appropriate.

7. The Crown is bound but legal aid excluded

• Section 3 binds the Crown, so public entities can be subject to cost orders, but s 2 simultaneously takes legal aid expenditure outside "costs". Practitioners should not assume that public payment of legal aid creates a recoverable judgment.

8. Transitional provision has strict temporal window

• Section 9 applies only where a person was discharged on or after 1 July 1976 and prior to commencement. That is a limited transitional window and is not a general retrospective authorization.

9. Open-textured statutory criteria invite evidential contests

• The matters in s 4(2) such as the adequacy of investigation, whether proper steps were taken, and whether the evidence would support guilt but for a technical point will be contested factual inquiries. Applicants must prepare evidentiary material addressing these specific statutory matters rather than relying on general assertions.

10. No guidance on interest, priority or time frames

• The Act does not specify whether interest accrues on unpaid costs orders, or how priorities among creditors should be managed, or any limitation period for enforcing an order converted into a judgment. Enforcement will therefore depend on the general civil rules that apply to judgments.

11. Taxation review is limited to the presiding judge or magistrate

• Section 5A(4) provides that taxation under s 5A(3) may be reviewed by the magistrate or judge presiding in the proceedings. This is a limited review mechanism. Practitioners should note that the review is internal to the presiding judicial officer rather than an appeal to an external court, unless other procedural avenues exist under general law.

12. Regulations may alter procedural detail

• The Governor may make regulations for the Act’s purposes (s 7(1)). Any future regulations could change procedural aspects, so practitioners must check for active regulations made under the Act.

These "gotchas" are concrete operational pitfalls rooted in the Act’s text. Users should align evidence, applications and administrative steps with the statutory structure to avoid procedural or substantive setbacks.

For defendants seeking costs

• Make a timely application to the court that had conduct of the proceedings once discharged, acquitted, complaint dismissed or withdrawn, or where discharged on indictment (s 4(1)). The Act requires an application by the defendant; it does not appear to confer a jurisdiction for the court to make costs orders without application.
• Prepare evidentiary material targeted to the statutory factors in s 4(2). Provide documentary and witness material that addresses: good faith of the proceedings (s 4(2)(a)), investigatory steps taken by those responsible for bringing or continuing proceedings (s 4(2)(b)), the reasonableness and propriety of the investigation (s 4(2)(c)), whether the evidence would otherwise support guilt but for a technical point (s 4(2)(d)), and whether the defendant established innocence by evidence or cross-examination (s 4(2)(e)). Tailoring the application to these items is essential because the court "shall have regard to" them.
• Itemise costs carefully, distinguishing between "expenses properly incurred by a defendant" (recoverable) and any legal aid payments (not recoverable under s 2). Provide invoices, receipts and particulars for each claimed expense to facilitate taxation and to avoid disputes about recoverability.
• If the court will be asked to consider scales under "any enactment" (s 5A(1)), identify the specific scale and ensure it is referenced in submissions because the court must specify the scale in the order if it is relied on (s 5A(2)).
• Ask the court to direct taxation by the Registrar of the Supreme Court or the Clerk of Petty Sessions where required (s 5A(3)), and be prepared to seek review by the presiding magistrate or judge if taxation outcomes are contentious (s 5A(4)).
• When preparing the application, account for s 4(3)-(5): do not rely on the fact of acquittal alone; address why the statutory factors favour an award and rebut any suggestion that costs should be refused where proceedings were properly brought or where the defendant remained silent.

For convicted defendants seeking costs

• For costs under s 5, prepare submissions that demonstrate (1) the charge indeed involved a difficult or important point of law, and (2) that special circumstances justify awarding costs for arguing that point. Because s 5 is narrow, provide legal analysis of the point of law and factual material showing the special circumstances.

For courts and registrars

• When making an order, ensure compliance with s 6(1) about delivery of the order to the correct recipient. For indictments or complaints by public officers, deliver to the Secretary of the Department; for complaints by or on behalf of State authorities, deliver to that authority; for municipal corporations, deliver to the corporation; otherwise deliver to the complainant.
• If the court has regard to a prescribed or agreed scale under any enactment, record and specify the scale in the order as required by s 5A(2).
• When directing taxation under s 5A(3), ensure the Registrar or Clerk has appropriate materials and that the parties are given reasonable opportunity to be heard at taxation. Be prepared to exercise s 5A(4) review functions impartially and to explain how the taxation aligns with the "just and reasonable" standard.

For public entities, departments and municipal corporations

• Implement administrative processes for receiving and assessing orders delivered under s 6(1). Identify the appropriate budgetary or accounting line so that a costs judgment can be processed or contested as litigation requires.
• Consider internal procedures for challenging enforcement where there are grounds, including seeking judicial review of the costs order itself if jurisdictional or procedural irregularity is alleged, while recognising s 6(2) converts the order into a judgment enforceable under civil procedure.

For complainants who are private individuals

• On receiving a costs order under s 6(1)(d), recognise that the order is enforceable as a civil judgment (s 6(2)). Seek legal advice promptly about enforcement options, settlement, or challenges. Prepare to manage exposure as a judgment debtor subject to civil enforcement.

For practitioners generally

• Distinguish between legal aid-funded costs and privately incurred costs at the time of claim. Provide clear delegation of responsibilities to clients for preserving receipts and disbursement records.
• Check for regulations made under s 7(1) that may alter procedural or administrative requirements. The text notes that s 7(2) was omitted by amendment, but does not detail remaining regulations; practitioners must verify current subordinate legislation.
• For transitional applications under s 9, confirm that the discharge occurred on or after 1 July 1976 and prior to the Act’s commencement. Ensure the application is to a court of like jurisdiction and prepare evidence of the discharge and incurred costs.

Recordkeeping and timing

• Preserve contemporaneous records of all legal fees, disbursements, travel, expert fees and other items claimed as "expenses properly incurred by a defendant". Maintain documentation to show whether any of those items were paid by legal aid funds; if so, exclude them from the claim under s 2.
• File the costs application promptly because the Act’s enforcement mechanism relies on civil judgment procedures which may be affected by limitation periods or administrative finality rules in other statutes or practice directions. The Act does not itself specify limitation periods for bringing cost applications.

Practical litigation posture

• When defending a costs claim, concentrate on the statutory matters in s 4(2). Demonstrate good faith in bringing proceedings and proper investigatory steps where relevant. If the prosecution was carried out with reasonable investigation, ensure the court is informed and that that fact is not decisive under s 4(4) which forbids refusal of costs solely because proceedings were properly brought.

In short, compliance requires targeted applications and evidence, attention to the statutory exclusions and delivery rules, careful quantification and use of taxation and review mechanisms under s 5A, and administrative preparedness on the part of public and private addressees of orders.