Scope and subject matter. The Act applies to “official prosecutions”, defined in s 4(1) as proceedings in a summary court brought by a public official acting by virtue of office. “Public official” has a broad list in s 4(1) , Ministers, persons employed in the State Public Service, members of the Police Force, persons employed by local government, and persons employed by any other statutory body, plus agents and persons acting under instructions of such persons or bodies. The Act expressly includes appeals from summary court decisions (s 4(1): “official prosecution … includes proceedings on appeal therefrom”).

Success and partial success. The Act sets out when an accused is “successful” (s 4(2)(a)) and when “partly successful” (s 4(2)(b)). Success is defined to include acquittal other than on account of mental impairment (s 4(2)(a)(i)), discharge under specified provisions of the Criminal Procedure Act 2004 (s 4(2)(a)(ii)), dismissal for want of prosecution (s 4(2)(a)(iii)), or having a conviction set aside (s 4(2)(a)(iv)). Partial success covers conviction of a lesser offence than charged or success on some but not all charges in a multi-count prosecution (s 4(2)(b)). The Act also identifies a circumstance in which dismissal for want of prosecution does not amount to success for the accused where the charge is indictable and dismissed by the summary court before certain procedural stages (s 4(2)(c)).

Entitlement and assessment. A successful accused is statutorily entitled to costs (s 5(1)), but the assessment mechanics differ by forum and outcome: the summary court fixes the amount where success is solely at summary court level, but the costs are not payable until the appeal period has expired or any appeal is resolved in the accused’s favour (s 5(2)). Where success is by reason of appeal court decision, the appeal court fixes the costs for the appeal and, if it reverses the summary court, it fixes costs in both courts (s 5(3)-(4)). Amounts other than court fees are assessed according to the scale fixed by the legal costs determination under the Legal Profession Uniform Law Application Act 2022 s 133 (s 5(5)).

Discretion and limitations. The statute gives courts express grounds on which they may revoke or reduce an accused’s entitlement to costs, including disposal without recording a conviction, behaviour outside the charged act that was unreasonable and contributed to institution or continuation of the proceedings, or conduct during proceedings calculated to prolong the proceedings unnecessarily or cause unnecessary expense (s 6(a)-(c)). For partly successful accused, recovery is limited to additional costs incurred by reason of the charges in respect of which they were successful and the court may take into account the factors in s 6 when exercising discretion (s 7(1)-(2)).

Payment mechanics and actors. The payment route depends on who was the prosecuting public official: where the party was a Minister, State public service employee, or member of Police, the Clerk or Registrar provides a certificate which, when produced to the Treasurer, triggers payment out of the Consolidated Account (s 9(a)). Where the prosecuting public official was employed by a local government or other statutory body, the order is made against that body and the amount is payable by it and recoverable as a civil debt (s 9(b)). The Act binds the Crown (s 3(3)), which interacts with the payment mechanism in s 9(a).

Prima facie override and interaction. The Act applies notwithstanding other Acts or rules of court practice (s 3(1)) and where there is inconsistency the provision more favourable to the accused prevails (s 3(2)). It therefore creates a statutory baseline entitlement that takes precedence in conflicts, subject to the qualifying definitions and discretionary exclusions in the Act itself.

Accused persons in official prosecutions. The primary beneficiaries are accused persons charged in “official prosecutions” as defined in s 4(1). That definition confines the regime to prosecutions instituted by public officials acting by virtue of office, including appeals from summary courts (s 4(1)). The Act therefore does not apply, on its face, to prosecutions brought by private prosecutors or by persons not captured by the statutory definition of “public official”.

Public officials and their employers. The Act directly affects Ministers of the Crown, persons employed in the State Public Service, members of the Police Force, local government employees, employees of other statutory bodies, and persons acting as agents of or under instructions from any such person or body (s 4(1)). These actors are the source of the exposure. If an order for costs is made and the state actor is a Minister, State public servant, or police member, the order will be paid from the Consolidated Account upon production of the court certificate to the Treasurer (s 9(a)). If the prosecuting party is a local government, statutory body, or their agent, the body is ordered to pay and the costs are recoverable as a civil debt (s 9(b)). The shift between state-funded payment and organisational payment means the Act allocates ultimate financial responsibility according to the identity of the prosecuting official.

Courts and court officers. Summary courts (defined in s 4(1) to mean the Magistrates Court or the Children’s Court) and appeal courts are given active roles: fixing amounts (s 5(2)-(4)), exercising discretion to revoke or reduce entitlements (s 6), determining additional costs for partly successful accused (s 7), and adjournment to chambers for taking submissions and affidavit evidence on costs questions (s 8). Clerks and Registrars have an administrative duty to issue certificates of amounts ordered when the prosecuting party is a state actor to enable Treasury payment (s 9(a)).

Treasurer and consolidated funds. The Treasurer is the paying officer where the prosecuting actor is a State official, because the accused must produce the court certificate to the Treasurer who shall pay from the Consolidated Account (s 9(a)). The Act therefore involves the Treasurer in the administrative payment flow for costs awards against the State, and engages public finances when prosecutions are unsuccessful.

Legal practitioners and legal costs assessors. The Act links amounts recoverable (other than court fees) to a scale determined under the Legal Profession Uniform Law Application Act 2022 s 133 (s 5(5)), so legal practitioners who bill accused persons and those advising on quantum must align with the applicable legal costs determination. Where amounts ordered are to be paid by a local government or statutory body, legal practitioners may need to advise on civil debt recovery processes because the order is recoverable as a civil debt (s 9(b)).

Indirectly affected parties. Taxpayers and ratepayers are the ultimate bearers of cost where the responsible paying entity is the Consolidated Account or a local government, respectively. The Act does not itself use the terms “taxpayer” or “ratepayer”, but s 9 sets out who the public purse or local government budget must satisfy when an order is made.

Rights of the accused. A person defined as an “accused” in an official prosecution is statutorily entitled to costs if they are “successful” as defined in s 4(2)(a) and subject to the provisions of the Act (s 5(1)). The accused has the right to have the amount of costs ordered by the appropriate court: the summary court where success arises only from summary court decision (s 5(2)), the appeal court where success is by reason of an appeal (s 5(3)), and in instances where the appeal court reverses a summary court decision the appeal court fixes costs for both courts (s 5(4)). A partly successful accused may apply to the court to be awarded the additional costs incurred by reason of the charges of which they were successful, but must satisfy the court of those additional costs (s 7(1)). The accused may seek the question of costs to be adjourned to chambers and tender affidavit evidence and submissions at that hearing (s 8).

Duties on courts. Courts have a duty to assess and make orders for costs where the statutory criteria are met, and to apply the scale fixed under the legal costs determination for amounts other than court fees (s 5(5)). Courts also have a statutory duty to exercise discretion under s 6 to revoke or reduce an accused’s entitlement where circumstances in s 6(a)-(c) obtain. Before exercising discretion to award costs to a partly successful accused, courts may regard the circumstances listed in s 6 (s 7(2)). Courts must ensure payment timing rules in s 5(2) are observed, namely that costs ordered by a summary court are not payable until the appeal period expires or an appeal is resolved in the accused’s favour.

Administrative duties. The Clerk or Registrar has an administrative duty to give the accused a certificate showing the amount of costs ordered where the prosecuting party is a State official, Minister, public service employee, member of Police, or agent acting under instructions of such a person (s 9(a)). The accused must produce that certificate to the Treasurer to be paid out of the Consolidated Account.

Payment obligations of public bodies. Where the prosecuting public official is employed by a local government or any other statutory body, the court’s order for costs is directed against that body and that body has the duty to pay the amount to the accused; the amount is recoverable as a civil debt (s 9(b)). Where the prosecution was by a State official, the practical duty is for the Treasurer to effect payment from the Consolidated Account on presentation of the formal certificate (s 9(a)).

Procedural duties on the accused. A partly successful accused wishing to recover additional costs must satisfy the court that the additional costs were incurred by reason of being charged with the relevant offences (s 7(1)). The accused has the procedural duty to make submissions and tender evidence, including affidavits, when the question of costs is adjourned to chambers (s 8).

Binding the Crown. The Act binds the Crown (s 3(3)). The Crown therefore is subject to the Act’s substantive provisions, including payment out of Consolidated Account procedures in s 9(a).

Limits on right to costs. The right to costs is not absolute. The court may refuse or reduce costs where the accused’s conduct falls within s 6(a)-(c). Also, the statutory definitions in s 4(2) exclude acquittal on account of mental impairment from the definition of success and exclude some dismissals for want of prosecution of indictable charges unless certain procedural steps have been reached (s 4(2)(a)(i); s 4(2)(c)). The accused’s entitlement is also conditional on appellate timing under s 5(2).

No criminal penalties for non-payment specified. The Act does not create criminal sanctions for failure to pay an order for costs. It establishes civil enforcement mechanisms tied to the identity of the prosecuting public official.

Enforcement where State actor prosecuted. Where costs are ordered against prosecutions brought by Ministers, State public servants, or police, the Act sets an administrative enforcement mechanism: the Clerk or Registrar must issue a certificate showing the amount ordered and, upon production of that certificate to the Treasurer, the Treasurer shall pay the amount out of the Consolidated Account (s 9(a)). The Act thus creates a route for an accused to receive payment from consolidated public funds but does not set out secondary enforcement steps beyond presentation of the required certificate.

Enforcement where local government or statutory body prosecuted. Where the prosecuting public official is employed by a local government or other statutory body, the order for costs is made against that body and the costs “shall be paid by it to the accused, and shall be recoverable as a civil debt” (s 9(b)). That language converts the costs order into an enforceable civil debt, enabling ordinary civil enforcement processes available under general law. The Act itself does not specify particular civil enforcement procedures such as garnishee, execution, or judgment registration, but the label “recoverable as a civil debt” imports civil remedies available in the jurisdiction.

Court discretion and consequences for entitlement. Section 6 provides the enforcement-relevant power for courts to revoke or reduce an accused’s entitlement to costs if the accused’s behaviour meets specified criteria: disposal without recording a conviction after a guilty finding (s 6(a)), conduct outside the charged act that was unreasonable and contributed to institution or continuation of proceedings (s 6(b)), or conduct during proceedings or defence calculated to prolong proceedings unnecessarily or cause unnecessary expense (s 6(c)). This power acts as a curtailing enforcement mechanism by permitting courts to deny or reduce awards where the accused has contributed to the cost outcome. The Act does not specify formulae or fixed deductions in these cases, leaving quantum and application of the power to judicial discretion.

Limits on immediate payment. The Act delays payment in some circumstances as an enforcement and risk-management instrument. Costs ordered by a summary court are not payable until the time for appeal has expired or an appeal is resolved in the accused’s favour (s 5(2)). That temporal condition protects the State and other paying bodies from immediate liability prior to finality of proceedings.

No detailed administrative penalties for false evidence at costs hearings. The Act allows adjourning costs questions to chambers and receiving affidavit evidence (s 8), but it does not set out penalties if affidavits are false. Any consequences for perjury or affidavit falsity would be those available under general criminal or civil law, not this Act.

Interaction with Crown payment processes. By imposing payment out of the Consolidated Account upon production of a court certificate, the Act relies on existing public finance processes to effect payment, but does not provide additional enforcement steps if the Treasurer declines to pay. The Act binds the Crown (s 3(3)), indicating that the Crown is liable under the Act, but it does not prescribe sanctions for refusal to comply.

Primacy and favourability clause. Section 3(1) establishes that the Act applies notwithstanding provisions of or under any other Act or any rule of court practice. Section 3(2) further provides that, to the extent of inconsistency between a provision of this Act and a provision of or under any other Act or rule of court practice, the provision which is more favourable to the accused prevails. Together these subsections create a statutory principle that this Act provides a minimum or preferred regime for costs in official prosecutions, and where conflict arises the accused’s interest as framed by this Act is to be preferred.

Connection to Criminal Procedure Act 2004. The definition of “successful” expressly cross-refers to discharge under s 128(2) or (3) of the Criminal Procedure Act 2004 (s 4(2)(a)(ii)). That cross-reference imports outcomes under the Criminal Procedure Act into the tests for success. The Act therefore operates in conjunction with that Act in determining whether certain dispositions amount to success for costs purposes.

Reference to The Criminal Code. The Act refers to section 5 of The Criminal Code in s 4(2)(c)(i) when defining circumstances in which dismissal for want of prosecution does not confer success for costs purposes in respect of indictable offences. This makes the Act sensitive to procedural stages governed by The Criminal Code in which the summary court decides whether an indictable charge is to be tried on indictment.

Link to Legal Profession Uniform Law Application Act 2022. Section 5(5) prescribes that amounts of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination made under the Legal Profession Uniform Law Application Act 2022 s 133. This ties the quantum of recoverable legal costs to an external statutory framework and delegates the detailed determination of the applicable scale to an instrument under the Legal Profession Uniform Law Application Act 2022.

Interaction with court practice rules. While the Act states it applies notwithstanding rules of court practice (s 3(1)), courts remain responsible for implementing the Act through practice directions, forms, and procedures. The power to adjourn the question of costs to chambers and receive affidavit evidence (s 8) expects courts to use existing procedural rules to manage such hearings.

Payment and public finance law. Section 9(a) requires a certificate from the Clerk or Registrar and instructs that upon production of that certificate to the Treasurer the accused shall be paid out of the Consolidated Account. The Act does not itself define the Treasurer’s operational duties or conditions under public finance legislation. Payment out of the Consolidated Account therefore presumes the existence of and compatibility with public financial law processes governing treasury payments.

Civil enforcement law for local and statutory bodies. When the prosecuting party is a local government or other statutory body, the order is recoverable as a civil debt (s 9(b)). That label integrates the costs order into general civil enforcement mechanisms available under other statutes and rules of civil procedure.

Binding the Crown. Section 3(3) expressly binds the Crown. This interacts with constitutional and public law principles about Crown liability and funds, but the Act itself sets out that it binds the Crown without further qualification.

Amendment and repeal history as interaction. The compilation table records a number of amending Acts and reprints. Those amendments have altered definitions, references and mechanics over time, including changes that connected the costs scale to the legal profession uniform law and changes relating to the Children’s Court and Criminal Procedure Act. Any user of the Act should consult the compilation history recorded in the Act for precise textual provenance.

Overview. The Act has been amended multiple times since its original enactment in 1973. The compilation table provided in the source lists successive amending Acts, dates of assent, and commencement dates. The statute’s short title was changed from Official Prosecutions (Defendants’ Costs) Act 1973 to its current title, which is noted in the other notes. Key amendments referenced in the compilation table were enacted across several decades and adjusted substantive definitions and procedural cross-references.

Significant amending instruments and topics. The compilation table records the following notable legislative instruments:

• Acts of 1974 amended the original Act shortly after assent (Acts Amendment (Legal Practitioners Costs and Taxation) Act 1987 Pt XIV; though this 1987 Act is later, the 1974 amendment is recorded in the table as No. 7 of 1974).
• Children’s Court-related amendments were made by the Acts Amendment (Children’s Court) Act 1988 Pt 8 (No. 49 of 1988) and Children’s Court of Western Australia Amendment Act (No. 2) 1991 s 21 (No. 15 of 1991). These amendments are reflected in the definition of “summary court” in s 4(1) or related procedural elements.
• The Legal Profession Act 2008 s 686 and later the Legal Profession Uniform Law Application Act 2022 s 424 modified how costs scales are set, with the current link to the legal costs determination under the 2022 Act reflected in s 5(5). The compilation table notes the Legal Profession Uniform Law Application Act 2022 s 424 commenced 1 July 2022.
• Financial administration amendments including the Financial Administration Legislation Amendment Act 1993 s 13 (No. 6 of 1993) and the Financial Legislation Amendment and Repeal Act 2006 s 4 (No. 77 of 2006) touched on funding or administrative mechanisms later reflected in s 9 and the payment procedure involving the Treasurer.
• Criminal procedure and criminal law amendments included the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 Pt 12, sections 80, 82 and 86 (No. 84 of 2004), which provided consequential amendments linked to the Criminal Procedure Act 2004 referenced in s 4(2)(a)(ii). The Criminal Law (Mental Impairment) Act 2023 s 412 amended the Act effective 1 September 2024 to exclude acquittal on account of mental impairment from the definition of success (s 4(2)(a)(i) as amended). That amendment is recorded in the compilation table and marked with its commencement date.

Amendments reflected in text. The version presented includes amendments up to and including the Criminal Law (Mental Impairment) Act 2023 s 412 with commencement 1 September 2024, and the Legal Profession Uniform Law Application Act 2022 s 424 with commencement 1 July 2022, both of which are expressly referenced in the body of the Act (see s 4(2)(a)(i) and s 5(5) respectively). The compilation table lists reprints at various dates, including reprints in 1983 and 1999, and Reprint 3 as at 3 February 2006.

Deleted provisions. Section 10 is recorded as deleted (No. 65 of 1987 s 41). The compilation table and other notes point to specific provisions that have been repealed or removed over time; the Act as presented omits s 10 because it was deleted by the amendment noted.

Practical consequence of amendment history. The amendment history shows iterative changes that migrated costs assessment mechanics to contemporary cost-determination frameworks (Legal Profession Uniform Law Application Act 2022), adjusted interactions with criminal procedure reforms, and updated scope to align with modern court structures such as the Children’s Court. The compilation table documents the dates and instruments for reference when tracing prior versions or transitional arrangements.

Consultation and commencement timing. Many amendments commenced on dates specified in the compilation table and associated Gazette notices. Practitioners should consult the compilation table entries and commencement columns for exact operative dates when assessing historical cases or transitional entitlements; the table records precise commencement dates and references to Gazettes for further verification.

No cases recorded in the Act text. The statute as provided does not list or cite any judicial decisions that have interpreted its provisions. The source contains a compilation table, amendment history and explanatory textual cross-references but does not include a digest or list of decisions applying the Act. Therefore no litigation history is recorded within the text of the Act itself.

Implication for practitioners. Because the Act text does not contain any reported decisions, practitioners must rely on separate case law research to determine how courts have applied the discretionary provisions in s 6, how s 7 has been interpreted with respect to proof of “additional costs”, how courts treat the s 4 definitions in borderline cases, and how s 5(2) has operated in situations involving appeals and interlocutory proceedings. The absence of case references in the statute means the Act sets statutory standards and leaves factual application and detailed legal interpretation to court process and later judicial elaboration.

Areas likely to generate litigation. The Act creates points of judicial discretion and factual enquiry that commonly produce litigation in practice. These include: (1) whether an accused is “successful” under s 4(2) in specific procedural circumstances, including the operation of the exclusion for acquittals on account of mental impairment and the provisions concerning dismissals for want of prosecution of indictable charges under s 4(2)(c); (2) the extent of the court’s discretion under s 6 to revoke or reduce an entitlement, and how courts quantify reductions; (3) the evidential standard and admissibility of material tendered in chambers under s 8 and the threshold for “satisfying the court” under s 7(1) in partly successful claims; and (4) disputes about the correct application of the legal costs determination scale referenced in s 5(5). These topics are specified by the Act’s structure and would normally be addressed by case law, but the Act source does not summarise any such authority.

No recorded appeals or reported disputes over payment mechanics in the Act text. The Act’s payment mechanism in s 9 allocates liability between the Consolidated Account and local/statutory bodies depending on the prosecuting party. The Act itself does not record disputes or judicial construction about what constitutes an agent or acting under instructions, nor does it cite decisions on the administrative interaction with the Treasurer. Absent judicial citations in the statute, practitioners should verify relevant case law and administrative practices outside the Act to understand how these provisions operate in practice.

Recommendation for research. To understand litigation history and judicial interpretation of the Act’s discretionary and definitional provisions, consult court databases and law reports for decisions applying the Official Prosecutions (Accused’s Costs) Act 1973, with attention to decisions from the Magistrates Court, Children’s Court, and appellate courts in Western Australia. The Act itself provides the statutory framework but does not contain recorded adjudications or interpretive rulings.

Narrow scope by initiator of prosecution. The Act applies only to “official prosecutions”, defined in s 4(1) as prosecutions brought by a public official acting by virtue of office. Prosecutions initiated by private individuals or entities not captured by the statutory “public official” definition will fall outside this Act. Confirm the identity of the prosecuting party before assuming the Act’s protections apply.

Exclusions in the definition of success. An acquittal on account of mental impairment is not included in the Act’s definition of “successful” accused (s 4(2)(a)(i) as amended). Practitioners should note that an acquittal for other reasons remains within the definition, but this specific exclusion means costs entitlement will not follow from mental impairment acquittals under this statute.

Indictable charges dismissed for want of prosecution may not confer success. Where the charge is indictable, dismissal for want of prosecution by the summary court does not necessarily make the accused “successful” under the Act if the dismissal occurs before the summary court has decided under s 5 of The Criminal Code that the charge is to be tried on indictment, or before committal for trial or sentence where that decision procedure does not apply (s 4(2)(c)). This timing-based exclusion can be pivotal; if a dismissal occurs prior to the procedural threshold, the accused may not be eligible for costs under this Act.

Payment suspended pending appeal finality. Costs ordered by a summary court are not payable until the time for appeal has expired or any appeal is resolved in favour of the accused (s 5(2)). This can defer payments, and practical recovery may be delayed. Accused persons should ensure appeal periods have run or appeals have been resolved before taking administrative steps to collect payments.

Different payers depending on prosecuting actor. The Act makes a practical distinction in payment mechanics: if the prosecuting public official is a Minister, State public servant, or member of the Police Force (or agent under instructions of such a person), the amount is paid from the Consolidated Account on production of the court certificate to the Treasurer (s 9(a)). If the prosecuting public official is a local government or other statutory body, the costs are ordered against the body and are recoverable as a civil debt (s 9(b)). The identity of the prosecuting official thus changes who ultimately pays and the recovery pathway.

Administrative prerequisite for payment. For State-prosecuted matters, the Clerk or Registrar must give the accused a certificate showing the amount of costs ordered (s 9(a)). Payment by the Treasurer is triggered by production of that certificate. Failure to obtain or properly present the certificate may delay or impede recovery.

Quantum linked to an external legal costs determination. Amounts of costs other than court fees must conform to the scale fixed by the legal costs determination under the Legal Profession Uniform Law Application Act 2022 s 133 (s 5(5)). Practitioners must check the current legal costs determination for the applicable scale rather than rely on ad hoc calculations. The Act does not itself set rates.

Court discretion can negate entitlement. The court has express statutory power under s 6 to refuse or reduce costs for defined conduct by the accused, including conduct outside the charged act that was unreasonable and contributed to the institution or continuation of proceedings, or conduct during proceedings calculated to prolong them unnecessarily (s 6(b)-(c)). This discretionary gate means entitlement is not automatic and may lead to contested hearings on accused conduct.

Partly successful claims require proof of additional costs. A partly successful accused is not automatically entitled to costs for the charges on which they succeeded; they must satisfy the court that they incurred additional costs by reason of those charges (s 7(1)). The evidential burden is on the accused to demonstrate causation and materiality of additional expense.

Adjournments to chambers and evidentiary form. The court may adjourn costs questions to chambers and receive affidavit evidence (s 8). Practitioners should plan for chambers hearings and affidavit preparation tailored to the s 6 and s 7 criteria, bearing in mind the court’s discretion and evidential standards.

Binding the Crown does not specify payment logistics. Although the Act binds the Crown (s 3(3)) and prescribes Consolidated Account payment for State-related prosecutions (s 9(a)), it does not set out recourse if payment is improperly refused by the Treasurer. Practitioners should be aware that administrative or public finance rules may affect timing and implementation.

Deleted and amended provisions. Section 10 has been deleted (note in text), and the Act has undergone multiple amendments as documented in the compilation table. Historical formulations of the Act may have differed; when dealing with historical facts or older prosecutions, confirm which version of the statute applied at the relevant time.

No penalties for false affidavit in costs hearing specified. The Act authorises affidavit evidence at costs hearings (s 8) but does not set out provisions specifically addressing sanctions for false affidavits in that context. Any such misconduct would be dealt with under general law rather than by this Act.

For accused persons seeking costs

1. Confirm eligibility. Verify the prosecution was an “official prosecution” as defined in s 4(1) and that the disposition qualifies as “successful” per s 4(2)(a) or “partly successful” per s 4(2)(b). Take particular care with acquittals on account of mental impairment and dismissals for want of prosecution of indictable charges where timing rules in s 4(2)(c) may remove entitlement.

2. Secure court orders. If success is by summary court decision only, seek the summary court to make an order as to the amount of costs under s 5(2). If success arises on appeal or via reversal, ensure the appeal court makes orders as provided in s 5(3)-(4).

3. Prepare evidence for quantum. For a partly successful application under s 7(1), prepare evidence that the additional costs were incurred by reason of the specific charges in respect of which the accused was successful. Expect the court to require the accused to “satisfy” it on this point and to allow submissions and affidavit evidence in chambers per s 8.

4. Address discretionary risk. Anticipate objections under s 6 and prepare to address conduct-based challenges. If the prosecution alleges the accused did or omitted acts that were unreasonable and contributed to institution or continuation of the proceedings, be ready to rebut those factual claims in the costs hearing.

5. Follow payment procedures. If costs are ordered and the prosecuting party is a State official as defined in s 4(1), obtain the certificate signed by the Clerk or sealed with the court seal demonstrating the amount ordered (s 9(a)). Present that certificate to the Treasurer to obtain payment from the Consolidated Account. If the prosecuting party is a local government or statutory body, the order will be against that body and will be payable by it; plan for civil debt recovery procedures where necessary (s 9(b)).

6. Check applicable legal costs scale. For amounts other than court fees, determine the applicable scale under the legal costs determination made under the Legal Profession Uniform Law Application Act 2022 s 133, which is binding under s 5(5).

For prosecutors and public bodies

1. Identify identity-based payment exposure. Before bringing or continuing prosecutions, be aware that unsuccessful prosecutions by persons described in s 4(1) expose the State or the relevant public body to costs liability. Understand whether the prosecuting actor falls within the State-payable category in s 9(a) or the local/statutory body category in s 9(b).

2. Manage conduct to limit exposure. The court may reduce or refuse costs where the accused’s conduct makes the order inappropriate (s 6). While this provision targets accused conduct, prosecuting agencies should also ensure lawful and necessary conduct in instituting prosecutions to minimise the risk of dismissal and subsequent costs orders.

3. Coordinate with treasury and finance. If prosecutions proceed and there is a risk of adverse costs, ensure administrative mechanisms are in place to respond to a costs certificate from the Clerk or Registrar and to comply with the payment process in s 9(a) where the State is liable. For local governments and statutory bodies, ensure budgets and debtor-recovery processes are prepared for the possibility that costs might be ordered and hence be payable as a civil debt under s 9(b).

For courts and court officers

1. Apply statutory definitions. Courts must apply the definitions in s 4(1)-(2) to determine entitlement. Courts should also ensure the timing condition in s 5(2) is observed before directing payment. Adjournments to chambers for factual determination under s 8 should be managed through existing procedural rules.

2. Assess quantum against the legal costs determination. When fixing amounts other than court fees, courts must refer to the scale fixed under the Legal Profession Uniform Law Application Act 2022 s 133 (s 5(5)). Courts should be familiar with the current legal costs determination to ensure orders conform to that scale.

3. Exercise s 6 discretion with reasons. When invoking s 6 to revoke or reduce entitlement, courts should record the factual basis for exercising discretion and quantify any reduction coherently, to provide clear guidance for appellate review if necessary.

Evidence and affidavit practice

• Prepare affidavits with evidentiary precision for chambers hearings under s 8. The Act contemplates affidavit evidence in costs hearings, so ensure affidavits are focused on causation, quantum, and the conduct-based factors in s 6 where contested.

Administrative checklist for obtaining payment under s 9

• After a favourable costs order, confirm the prosecuting party’s identity to determine the payment route under s 9(a) or s 9(b).
• If the State is the payer, request the court’s Clerk or Registrar to issue a certificate showing the ordered amount (s 9(a)).
• Produce the certificate to the Treasurer to obtain payment from the Consolidated Account. Track public finance procedures that may affect timing.
• If the payer is a local government or statutory body, serve the costs order on that body and, if payment is not made, commence civil debt recovery proceedings under the general law.

Record-keeping and transcripts

• Preserve orders, certificates, and any affidavits tendered in chambers. These documents are essential for triggering payment under s 9 and for any subsequent enforcement or appeal steps.

Confirm current law and scale

• Because s 5(5) ties quantum to an external determination, practitioners must confirm the current legal costs determination and any amendments to it. Also check that no intervening amendments to the Act or connected statutes have altered the operative requirements by consulting the compilation table and current legislation.

By following the statutory definitions, procedural steps and payment mechanisms set out in the Act (notably ss 4, 5, 6, 7, 8 and 9) and by preparing evidence to satisfy the courts where necessary, parties can implement the Act’s entitlements and obligations in an orderly fashion.