Latoudis v Casey [1990] HCA 59

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and McHugh JJ. Latoudis v Casey [1990] HCA 59

ORDER Appeal allowed with costs. Set aside the orders of the Supreme Court of Victoria made on 29 September 1989 and in lieu thereof order that:

(i) the order nisi be made absolute;

(ii) the order of the magistrate refusing the appellant's application for costs be set aside and in lieu thereof order that the appellant's costs of the proceedings before the magistrate on 20 April 1989 be paid by the respondent;

(iii) the appellant's costs of the order nisi be paid by the respondent.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 20 Mason C.J.

The question for decision in this appeal is what, if any, are the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant. At the time of these proceedings, the relevant discretion was conferred by s. 97(b) of the Magistrates (Summary Proceedings) Act 1975 Vict ("the Act") which is in terms similar to counterpart provisions in New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and the Northern Territory. Section 97(b) authorizes the court, when it dismisses an information or complaint, or makes an order in favour of a defendant, to order the informant or complainant to pay to the defendant such costs as the court thinks just and reasonable. Separate provision is made by s. 97(a) in similar terms authorizing the award of costs in favour of an informant or complainant when the defendant is convicted or an order is made against the defendant. The fact that separate provision was made for the two situations may well indicate a legislative appreciation that the exercise of each discretion may call for an examination of different considerations.