Costs Applications

The law on costs for criminal matters in the ACT is largely unique from other jurisdictions in Australia.  Defendants who have engaged a privately funded lawyer, not on a grant of legal aid, and who successfully have summary charges dismissed in the ACT Magistrates Court, can have a reasonable expectation that the court will order police pay a portion of their legal costs.

In most other jurisdictions, including NSW, there are stricter limits set on costs. For example, a defendant may have to establish that it was unreasonable for the prosecution to have been initiated at all.

Whilst the ACT has a broad power for costs for summary criminal matters in the ACT Magistrates Court, there is almost no power for costs in indictable criminal matters heard in the ACT Supreme Court. The only narrow power to award costs in the ACT Supreme Court are in rare cases when the court awards a conditional stay of proceedings, pending the payment of costs, such as when significant disclosure issues arise, or when the DPP makes an application to examine a witness on a separate occasion prior to trial. The DPP are also liable to pay costs to a defendant if they bring an appeal to the ACT Supreme Court of the acquittal of a defendant in the ACT Magistrates Court.

The power to award costs in summary criminal matters in the ACT arises from s244(1) of the Magistrates Court Act 1930 (ACT) in the following circumstances:

(a)     if the court makes a conviction or order in favour of the informant (police)—it may order that the defendant must pay to the informant the informant’s costs;

(b)     if the court dismisses the information (charge), or makes an order in favour of the defendant—it may order that the informant (police) must pay to the defendant the defendant‘s costs;

(c)     if a matter is adjourned—the court may order that the costs of and caused by the adjournment be paid by any party to any other party.

By convention only, costs are very rarely applied for by lawyers representing acquitted defendant’s acting through a grant of aid. The reasoning is that this would simply involve transferring money from one government entity to another. This is to be contrasted with NSW where costs applications are commonly made for legal aid defendants.

Similarly, whilst there is technically a power for the court to award costs to the police office-in-charge of a matter (referred to as the “informant’) it is again by convention that such orders are rarely sought or made.

The most common scenario in which costs are awarded is in the case of a court dismissing an information (charge) that had been proffered against a successful defendant, under s244(1)(b) Magistrates Court Act 1930 (ACT).

In Latoudis v Casey 170 CLR 534, the leading authority on costs in summary criminal matters in the ACT, the High Court made it clear that in ordinary circumstances a defendant has a “reasonable expectation” for costs, and that it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs.

As Mason CJ noted (at [13] in Latoudis) costs orders are not made as a means of punishing or disapproving of an unsuccessful police officer, but to compensate a successful defendant.

The circumstances in which a court would be satisfied that it was not just or reasonable to make an order for costs are generally limited. Mason CJ notes (at [18] and [19]), for example, circumstances where a defendant brought about their prosecution through their conduct after the events constituting the commission of the offence. A classic example might be where a defendant makes a confession to police about a crime that was not already the subject of an investigation.

The other category in which a costs order may be refused for a successfully acquitted defendant, arises where a defendant conducts the hearing or proceeding in an unreasonable manner. For example, there may be a clear single and obvious defence that is at the heart of why a defendant is successful, but a defendant’s lawyer(s) contests many other issues or claimed defences to a charge that have no real prospects of success. A court might conclude that if a defendant’s lawyer(s) had narrowed issues in dispute to the single primary issue a hearing would have been much shorter than if they had put everything in the prosecution case in dispute and drawn out the length of the hearing.

Costs are not only awarded in the case of acquitted defendants. They can be awarded under s244(1)(c) for when a matter is adjourned, whether at a mention or when a defended hearing is vacated. This can apply where there is late disclosure by the police or DPP or where a hearing is adjourned due to the unreasonable unavailability of an important witness.

Costs can also be awarded for other circumstances where there is an order “in favour” of a defendant under s244(1)(b). This can apply, for example, where a charge is diverted away from the criminal justice system in favour of mental health treatment pursuant to s334 of the Crimes Act 1900 (ACT). It is arguable, although this issue has not been decided by a higher court, that an order “in favour” of a defendant, includes where the DPP seeks leave to withdraw a charge, instead of offering no evidence, or no further evidence, such that the charge is dismissed by the court.

If the court is satisfied at the conclusion of a hearing that a costs order should be made against police, the order is usually made in the following terms, in accordance with paragraph 64 of ACT Magistrates Court Practice Direction 6 of 2024:

“The informant is to pay the defendant’s costs of the proceedings in an amount agreed by the partiers; or if an agreement is not filed within 28 days of the order, in an amount assessed by the Registrar in accordance with the scale of costs in accordance with reg 4 and 5 of the Magistrates Court Regulations 2009”.

Unlike in NSW, it is generally not appropriate for a magistrate to decide the total amount (quantum) of costs to be paid at the time the actual costs order is made. The defendant’s lawyer(s) and police are expected to first conduct negotiations to see if an agreement can be reached about the amount to be paid. If no agreement is reached the recourse for the defendant is to make an application to the ACT Magistrates Court for a Registrar to assess the quantum of costs.

A defendant is not simply entitled to recover the entirety of actual legal expenses incurred. They are entitled to payment of a percentage of reasonable disbursements (barrister’s fees, experts fees etc) and professional fees (solicitors fees) as they apply to a Scale of Costs, as listed in Schedule 4 to the Court Procedures Rules 2006 (ACT). The Scale of Costs lists a range of categories of work which can be claimed by a solicitor for professional fees, such as drawing court documents, correspondence, perusing documents and appearing in court.

After determining the allowable amount of professional fees against the Scale of Costs, 15% can reasonably be added to that total to allow for the general care and conduct of solicitor’s work on a matter which is not strictly applied to the Scale. This approach was endorsed by Refshauge J in Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326.

The final step in determining the quantum of costs, whether by negotiation with police or through an assessment by a Registrar of the ACT Magistrates Court, is to combine professional fees and disbursements and then reduce that total by applying 67% to that amount. The apparent justification for this multiplier is that work conducted in summary proceedings in the ACT Magistrates Court should generally be less than more complex work in the ACT Supreme Court.

Q: I have previously had charges against me and I did not know I could apply to recover my costs. Can I apply now? 

A: No, an application has to be made as part of the proceedings. Unless an application is made at the point the charges are dismissed, or the matter is adjourned for an application to be made, the orders of the court dismissing the charges bring the proceedings to close.