Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rodden v R [2023] NSWCCA 202 Hearing dates: 9 August 2023 Date of orders: 18 August 2023 Decision date: 18 August 2023 Before: Bell CJ; Leeming JA; Beech-Jones JA Decision: (1) Grant leave to the Legal Aid Commission of New South Wales to intervene. (2) Grant the applicant leave to appeal. (3) Dismiss the appeal. Catchwords: COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant's defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant's defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 Legislation Cited: Commonwealth Constitution s 73 Costs in Criminal Cases Act 1967 (NSW) ss 2-4 Criminal Appeal Act 1912 (NSW) s 5F Customs Act 1901 (Cth) Interpretation Act 1987 (NSW) s 9(1) Judiciary Act 1903 (Cth) ss 68, 79 Legal Aid Commission Act 1979 (NSW) ss 3, 10-11, 14-17, 30, 34, 36, 39, 42, 43A, 44-46, 62-64, 67 Service and Execution of Process Act 1901 (Cth) s 16 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) ss 17, 69, 101, Sch 3 Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Alqudsi v Commonwealth of Australia; Alqudsi v R (2015) 91 NSWLR 92; [2015] NSWCA 351 Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298 Buttrose v Attorney General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562 Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20 Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) 185 A Crim R 580 Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12 Clark v Attorney General (NSW) [2020] NSWCA 70 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 261 ALR 441 El-Zayet v The Queen (2014) 88 NSWLR 556; [2014] NSWCCA 298 Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172 GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 Grierson v The King (1938) 60 CLR 431; [1938] HCA 45 Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106; [1956] HCA 29 Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36 Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36 Huynh v Attorney General (NSW) [2023] NSWCA 190 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kowal v Zoccoli (2002) 4 VR 399; [2002] VSCA 100 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Liristis v Director of Public Prosecutions [2018] NSWCCA 196 Lodhi v Attorney General (NSW) [2013] NSWCA 433; (2013) 241 A Crim R 477 Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343 R v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 R v Hannah Quinn (No 2) [2021] NSWSC 494 R v Johnston [2000] NSWCCA 197 R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208; [1951] HCA 3 R v Pavia (1993) 67 A Crim R 364 R v Stuart Carrick (2003) 57 NSWLR 606; [2003] NSWSC 313 Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 Shepherd v Bowen (1986) 4 NSWLR 475 Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 Smith v Cowell (1880) 6 QBD 75 Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Victoria Legal Aid v County Court of Victoria (2004) 9 VR 686; [2004] VSCA 113 Ward v Williams (1955) 92 CLR 496; [1955] HCA 4 Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 Zaghloul v Woodside Energy Ltd [2019] WASCA 187 Category: Principal judgment Parties: Simon Rodden (Applicant) The Crown (Respondent) Representation: Counsel: J Stratton SC with T O'Rourke (Applicant) M Robinson SC with J Lucy (Intervener) D Kell SC with E Jones (Respondent) Solicitors: O'Brien Criminal and Civil Solicitors (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00181340 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 1230 Date of Decision: 16 September 2022 Before: Fagan J File Number(s): 2019/00181340 HEADNOTE [This headnote is not to be read as part of the judgment] Simon Rodden (the applicant) brought two applications arising from the decision (the decision) of Fagan J (the primary judge) to refuse his application for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act). The applicant was acquitted of murder by a jury on 29 July 2022. He had been granted legal aid for his defence prior to the trial, obliging him to make a contribution of $75 to his defence. He had also expended money on his defence prior to his grant of legal aid. Following his acquittal, the applicant applied for a costs certificate pursuant to s 2 of the Costs Act. The primary judge declined the application for a costs certificate on two bases. First, his Honour held that no application could lie where an applicant was entirely legally aided and made no personal financial outlay in his or her own defence. Second, his Honour held that, even if a certificate could be granted where the acquitted applicant had made no personal financial outlay in his or her own defence, he would not have granted a certificate in any event as it would not have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings in this case. The first of the applications (2019/00181340), filed in the Court of Criminal Appeal, was for leave to appeal from the decision pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). For this application to be competent, the decision must have been an "interlocutory judgment or order given or made in the proceedings" (in the language of s 5F(3) of the Criminal Appeal Act). The second application, brought by way of Amended Summons in the Court of Appeal (2023/109813), was for judicial review of the decision. This application was advanced in the alternative and on the basis that the decision was administrative in character, rather than judicial. This application sought relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). In order to resolve the applications, the Court of Criminal Appeal and the Court of Appeal sat concurrently and identically constituted. There were three principal issues on appeal: 1. whether the Court of Criminal Appeal or the Court of Appeal (or neither, as submitted by the Crown) had jurisdiction to determine the challenge to the decision (the jurisdictional issue); 2. whether, on its proper construction, the Costs Act permitted the recovery of costs by completely legally aided defendants (the statutory construction issue); and 3. whether it would have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings (the factual issue). The Court (Bell CJ, Leeming JA, Beech-Jones JA) held, granting leave to appeal but dismissing the appeal: As to the jurisdictional issue 1. The function of granting or declining to grant a costs certificate is not of an administrative character, but is an exercise of judicial power. The Court of Appeal has no supervisory jurisdiction over a judicial decision of a judge of a superior court: [60]-[73]. El-Zayet v The Queen (2014) 88 NSWLR 556; [2014] NSWCCA 298, applied. Varley v Attorney General (NSW) (1987) 8 NSWLR 30; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343; Lodhi v Attorney General (NSW) [2013] NSWCA 433; (2013) 241 A Crim R 477; Buttrose v Attorney General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314; Clark v Attorney General (NSW) [2020] NSWCA 70; Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298; Huynh v Attorney General (NSW) [2023] NSWCA 190; Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208; [1951] HCA 3; R v Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, cited. Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) 185 A Crim R 580; AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122, distinguished. 1. The "order" to dismiss the application was interlocutory: [78], [85]. Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36; Victoria Legal Aid v County Court of Victoria (2004) 9 VR 686; [2004] VSCA 113, applied. Smith v Cowell (1880) 6 QBD 75; Kowal v Zoccoli (2002) 4 VR 399; [2002] VSCA 100; Zaghloul v Woodside Energy Ltd [2019] WASCA 187; Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20, cited. 1. The order to dismiss the application was one that was "given or made in the proceedings" "for the prosecution of [the] offender on indictment", in the language of s 5F of the Criminal Appeal Act 1912 (NSW) notwithstanding that the applicant had already been acquitted: [86], [97]. Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47; R v Pavia (1993) 67 A Crim R 364, applied. Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12, cited. Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106; [1956] HCA 29; R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196, distinguished. 1. The Court of Criminal Appeal therefore had jurisdiction pursuant to s 5F of the Criminal Appeal Act to entertain an appeal from the decision, subject to the grant of leave: [97]. As to the statutory construction issue 1. An entirely legally aided applicant can be granted a certificate under the Costs Act: [110], [119]. 2. The starting point on an application for a costs certificate should be consideration of the two matters set out in s 3(1) of the Costs Act. If s 2 does confer a residual discretion to decline to grant a costs certificate, a certificate should ordinarily be granted given the beneficial purpose of the Act: [111], [117]. Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160; R v Johnston [2000] NSWCCA 197; Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510, cited. 1. Section 4 of the Costs Act should not be read in a way which limits the reach of the Act's application: [122]. Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, cited. As to the factual issue 1. No error was demonstrated in relation to the primary judge's finding that if, before the proceedings were instituted, the prosecution had been in possession of evidence of all the relevant facts then it would not have been unreasonable to institute the proceedings: [159]. JUDGMENT THE COURT: Introduction 1. This decision relates to two separate applications. Both arise from a decision (the decision) of Fagan J to refuse the application of Simon Rodden (the applicant or Mr Rodden) for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act): see R v Rodden (Costs) [2022] NSWSC 1230. 2. The reason for referring to the "decision" of Fagan J rather than his Honour's judgment is that, as shall be seen, one of the issues thrown up by the applications concerns whether the decision was of a judicial or administrative character. No party submitted that the decision could have a dual judicial and administrative character. 3. The first of the applications (2019/00181340), filed in the Court of Criminal Appeal, is for leave to appeal from the decision pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). For this application to be competent, the decision must have the character of an "interlocutory judgment or order given or made in the proceedings" (in the language of s 5F(3) of the Criminal Appeal Act) (the CCA proceeding). The Respondent to the s 5F application is the Crown. 4. The second application, brought by way of Amended Summons in the Court of Appeal (2023/109813), is for judicial review of the decision (the judicial review proceeding). This application is advanced in the alternative and on the basis that the decision was administrative in character, rather than judicial. This application seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The Respondents to the Amended Summons are the Director of Public Prosecutions (the Director) and the Supreme Court itself (it will not be necessary to consider the correctness of the joinder of the latter). 5. As shall be seen, the decision of Fagan J has important consequences for the Legal Aid Commission of New South Wales (the Commission) and the provision of legal aid in New South Wales. The Commission applied to be joined as a party to both applications or, in the alternative, to intervene. Its joinder was not opposed. Ordinarily, multiple appellants in the same appeal should not be separately represented. Mr Rodden and the Commission made common cause and presented a consistent case without duplication. In all the circumstances, we decline to join the Commission as a party but have received its submissions as an intervener. It plainly had a real interest in the matter involving, as it did, important questions of construction in relation to its constituent Act, as well as implications in relation to its financial position. 6. To resolve the applications, the Court of Criminal Appeal and the Court of Appeal (identically constituted) sat concurrently, as has occurred in previous applications of a similar nature: see, e.g., R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [21]; see also Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172 at [7]-[8] and Alqudsi v Commonwealth of Australia; Alqudsi v R (2015) 91 NSWLR 92; [2015] NSWCA 351. 7. The three principal issues for resolution are: 1. whether the Court of Criminal Appeal or the Court of Appeal (or neither, as submitted by the Crown) has jurisdiction to determine the challenge to the decision (the jurisdictional issue); 2. whether, on its proper construction, the Costs Act permits the recovery of costs by completely legally aided defendants (the statutory construction issue); and 3. whether it would have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings (the factual issue). 1. Resolution of the jurisdictional question, which is the "first duty" of any Court to consider (see Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; [1924] HCA 36), is critical because "it may affect the law applicable to the controversy": CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 261 ALR 441 at [22]. Much turns on the character of the proceedings and whether they properly arise under the Court of Appeal's supervisory jurisdiction (in which case, relief is discretionary and the grounds of review are constrained), in the jurisdiction of the Court of Criminal Appeal's pursuant to s 5F of the Criminal Appeal Act where a threshold grant of leave to appeal is required, or, as the Crown contended, in neither jurisdiction such that both applications were incompetent. Background 1. The applicant, Mr Rodden, had been charged with murder and was acquitted by a jury on 29 July 2022. He was granted legal aid for his defence on 20 January 2020 pursuant to s 34 of the Legal Aid Commission Act 1979 (NSW). This grant obliged him to make a contribution of $75, but did not otherwise require him to make any financial contribution to his own defence subsequent to the grant of legal aid. The grant did not, however, cover costs he had incurred prior to the grant of legal aid. It was not disputed on appeal that Mr Rodden had in fact incurred approximately $5000 in legal costs prior to the grant of legal aid. 2. Following his acquittal, the applicant moved, by Notice of Motion, for a costs certificate pursuant to s 2 of the Costs Act. The effect of the grant of such a certificate is that, pursuant to s 4 of that Act, the grantee may apply to the Secretary of the Department of Communities and Justice for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. (Section 4 of the Costs Act refers to the Director-General of the Attorney General's Department but it was common cause that that statutory function is now performed by the Secretary or his delegate.) 3. Fagan J declined the application on two bases. First, his Honour held that no application could lie where an applicant was entirely legally aided and made no personal financial outlay in his or her own defence. (Fagan J was mistakenly told the applicant was fully funded by legal aid, the applicant's then legal representatives apparently having overlooked the fact that he had incurred some legal costs prior to the grant of legal aid: see [9] above). Second, his Honour held that, even if a certificate could be granted where the acquitted applicant had made no personal financial outlay in his or her own defence, he would not have granted a certificate in any event as it would not have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings: Costs Act s 3(1)(a). 4. A practical effect of Fagan J's decision is that the Department of Communities and Justice informed the Commission that "all Legal Aid NSW applications under the Costs in Criminal Cases Act 1967 (NSW) … will be deferred pending the outcome of the appeal from the Rodden Decision". Evidence was led to the effect that "the Commission has been encouraged by the Department not to submit any additional or further applications as a result." In an affidavit read on both applications, the Commission's Chief Executive deposed that "the Secretary of the Department has continued to defer the determination of applications made under s 4 of the Costs Act by Legal Aid NSW on behalf of legally-assisted clients since that time". 5. The practical implications of the decision (and the financial implications for the Commission) are obviously of great significance. 6. It was accepted in argument that the decision of the primary judge was either judicial, in which case it would be amenable to a grant of leave to appeal under s 5F of the Criminal Appeal Act if it were an interlocutory judgment or order in the criminal proceedings; or administrative, in which case the Court of Appeal would have jurisdiction to review it subject to arguments as to the grounds for review. 7. The Crown submitted that the decision was judicial in character and accepted that the dismissal of the application for a certificate constituted an "order" within the meaning of s 5F of the Act. Its two points were that the decision was not interlocutory in character, and that the order was not made in proceedings "for the prosecution" of the Applicant on indictment. On this footing, the Crown's position was that both applications were incompetent. 8. For completeness, it may be noted that no appeal lay under the Supreme Court Act 1970 (NSW) due to the combined effect of s 17(1) and Sch 3(i) of that Act. In this context, it should be recorded that, initially, Mr Rodden filed a notice of appeal to the Court of Appeal, purportedly pursuant to s 101(1) of the Supreme Court Act 1970 (NSW). That was discontinued or dismissed (the materials made available to this Court do not disclose how this occurred) because the proceedings before the primary judge were unquestionably "proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967", within the meaning of (i) of the Third Schedule of the Supreme Court Act. 9. Section 17(1) of the Supreme Court Act provides that subject to certain exceptions, "this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule". The disapplication effected by s 17 extends to s 101, which is the section creating the right of appeal to the Court of Appeal. Any doubt about that is dispelled by the terms of s 17(3) which explicitly preserves the operation of s 101(5) (which authorises appeals in proceedings which relate to civil or criminal contempt), making clear that the rest of s 101 is inapplicable. Thus, in Shepherd v Bowen (1986) 4 NSWLR 475 at 479, Mahoney JA said: "In general, therefore, the effect of s 17(1) is that "this Act" and consequently s 101(1)(a) do not apply to proceedings in the Court for the prosecution of offenders on indictment. Therefore, the right of appeal to the Court of Appeal is not granted in respect of any judgment or order made in such proceedings." 1. Before turning to consider the jurisdictional issue, it is necessary first to identify the key statutory provisions which bear on the issues for determination, and then to note the reasoning of Fagan J. The Legal Aid Act 1. Legal aid in New South Wales is governed by the Legal Aid Commission Act 1979 (NSW) (the LAC Act). 2. The Legal Aid Commission is constituted a corporation by s 10(1) of the LAC Act. The Commission is, for the purpose of any Act, a statutory body representing the Crown: s 10(3). It has a Board (ss 14, 15) and a Chief Executive Officer (ss 16, 17), and administers the Legal Aid Fund: s 62. 3. The principal function of the Commission is to provide legal aid and other legal services in accordance with the Act: s 10(1). By s 10(2)(h), the Commission is authorised to "give assistance and make grants, on such terms and conditions as it thinks fit, to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid". An important matter to note at the outset, and which flows in part from s 10(2)(h), is that legal aid is not granted directly to litigants but "to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid" (emphasis supplied). It is the "persons or bodies" to whom monetary grants are made by the Commission who provide legal aid to litigants. The "legal aid" with which "legally assisted persons" are provided takes the form of services provided by law practices, the Commission itself or public defenders who are paid directly by the Commission. By s 10(1)(a) of the Public Defenders Act 1995 (NSW), one of the functions of a Public Defender is to advise and appear in criminal proceedings, and other proceedings in the nature of criminal proceedings, on behalf of "legally assisted persons", that term being defined (by s 3) to mean "a person who is a legally assisted person within the meaning of the Legal Aid Commission Act 1979 or who is receiving legal assistance through a community legal centre." 4. By s 11(1) of the LAC Act: "Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means— (a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission, (b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or (c) by arranging for the services of the Public Defenders to be made available." 1. That individual litigants are not put into funds upon a grant of legal aid is also made plain by s 39 of the LAC Act which relevantly provides that: "(1) The Commission shall determine the fees to be paid by it to law practices to whom work is assigned by the Commission. (2) In determining the fees referred to in subsection (1), the Commission shall consult with and take into account the views of— (a) the Bar Association in respect of fees to be paid to barristers, and (b) the Law Society in respect of fees to be paid to solicitors. (3) The fees referred to in subsection (1) shall, so far as practicable, consist of fixed amounts determined in respect of particular legal services. (4) A fee determined under subsection (1) in respect of a legal service shall be less than the ordinary professional cost of the legal service. (5) …" 1. As soon as practicable after the commencement of proceedings (not being proceedings with respect to a criminal offence), a solicitor acting on behalf of a legally assisted person is required to give notice to the other parties, if any, to the proceedings of the fact that the solicitor is acting for a legally assisted person: s 34(6). There is no equivalent notification provision for proceedings with respect to a criminal offence. 2. Section 42 of the LAC Act, headed "Discretion of court or tribunal as to costs", provides that: "A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person." 1. Section 43A(1) of the LAC Act provides that: "The Commission may defer payment of any fees payable by it to a law practice in connection with proceedings in respect of which legal aid has been granted— (a) until the Commission is satisfied that the law practice has taken reasonable steps to recover any party and party costs to which the legally assisted person is entitled, or (b) until the conclusion of any official investigation in relation to— (i) any alleged breach of this Act or the regulations by the law practice, (ii) any alleged fraud or misrepresentation by the law practice in relation to the provision of legal aid or any such fraud or misrepresentation to which the law practice is a party, or (iii) any alleged improper action by the law practice in bringing, defending or conducting any proceedings in relation to which legal aid has been provided or any such action to which the law practice is a party, or (iv) any matter concerning the assignment of work to, or the performance of work by, the law practice, or (c) until the completion of any criminal or disciplinary proceedings commenced against the law practice in respect of a matter referred to in paragraph (b)." 1. It may be asked what the purpose of ss 42 and 43A of the LAC Act is given that a legally aided person does not have to outlay funds to a law practice or legal practitioner to whom a grant of legal aid has been made (as explained above), and, as such, will not have personally incurred costs. The answer is at least threefold. First, a legally assisted person may have incurred costs prior to the grant of legal aid. Second, a grant of legal aid may be conditional or partial: see, for example, ss 30, 34, 36. Third, a legally assisted person may, subsequent to the grant of legal aid, be required to make payment to the Commission in respect of some or all of the costs which have incurred for the purposes of provision of legal aid. Thus, s 44 of the LAC Act provides that: "(1) The Commission may, by notice in writing, direct a legally assisted person or a law practice acting for such a person to pay to the Commission the whole, or such part as is determined by the Commission and specified in the notice, of any money recovered by or on behalf of the person in any proceedings in respect of which legal aid was granted to the person. (2) An amount required to be paid under subsection (1) must be paid in such manner, and within such time, as the Commission directs. (3) The Commission shall account to a legally assisted person referred to in subsection (1) and any law practice so referred to in respect of money paid to it under subsection (1). (4) The Commission may, in respect of money paid to it by a legally assisted person or a law practice under subsection (1)— (a) deduct any amount payable to it under this Act by the person, and (b) offset the amount of any fees payable by it to any law practice in connection with the proceedings in which the money was recovered against any other money held by the law practice in relation to the same proceedings. (5) The Commission may recover an amount payable to it under subsection (1), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction. (6) In this section, money includes a cheque." 1. The terms of s 45 of the LAC Act should also be noted: "45 Recovery of money (1) Where— (a) a court or tribunal has made an order directing the payment of money (whether or not being or including an order as to costs) in favour of a legally assisted person, or (b) money is otherwise recoverable by a legally assisted person (whether or not in a proceeding or by virtue of a settlement or compromise), and the person fails, within such time as the Commission thinks reasonable, to recover the money, the Commission may, by notice in writing, direct the person to assign his or her right to recover the money, or such part of it as is specified in the notice, to the Commission within a period of 21 days after the date of the notice. (2) Where a legally assisted person fails to comply with a notice given to him or her under subsection (1), the person shall be deemed, at the expiration of the period referred to in subsection (1), to have assigned to the Commission the right to recover the money in respect of which the notice is given and the Commission may do and suffer all such things as the person could, but for this subsection, have been able to do or suffer in order to recover that money. (3) The Commission must account to the legally assisted person in respect of money recovered by it under this section." 1. Section 46(1) of the LAC Act is also of importance. It provides that: "[w]hen legal services have been provided to a legally assisted person, the Commission is to determine the amount, if any, payable to the Commission by the person in respect of the costs and expenses of those legal services (including expenses under section 33). More than one such determination can be made in respect of the person and can be made at or after the conclusion of the matter for which legal services were provided or, if legal aid is terminated during the course of the matter, at or after the termination. A determination can be varied by a later determination." 1. An amount required to be paid under subsection (1) must be paid in such manner, and within such time, as the Commission directs: s 46(2A). Moreover, by s 46(3), the Commission may recover an amount payable to it under subsection (1), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction. Section 46(4), consistent with the tenor of s 42 of the LAC Act, provides that a reference to the costs of the legal services provided in s 46(2) is a reference to costs assessed as if the legally assisted person were not a legally assisted person. 2. The LAC Act thus contemplates that a legally assisted person will be able to recover costs incurred for their benefit by an award of costs notwithstanding that they will not themselves have personally incurred a liability for those costs at the time legal services were rendered. Equally plainly, the LAC Act contemplates that the Commission will be able to recover from the legally aided person amounts corresponding with the legal costs paid out for the benefit of a legally assisted person. As a matter of practice, it may be inferred that the Commission would engage its powers to recover amounts outlaid for the benefit of a legally assisted person when he or she is in receipt of an award of costs, or is armed with a certificate pursuant to s 2 of the Costs Act which opens up the gateway for such an award: see [42] below. 3. The foregoing analysis of the provisions of the LAC Act coheres with the observations of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 543; [1990] HCA 59 who observed that: "no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind." 1. Evidence led on behalf of the Commission was that the Commission does in fact recoup financial outlays in criminal defences it has funded following certification under the Costs Act. Thus, in an affidavit relied upon in support of both applications, Ms Pauline Chau, Acting Manager of the In-House Counsel Unit at the Commission, deposed that: "For many years, the practice for Legal Aid NSW has been to collect the costs certificates granted and to make an application to the General Counsel in the Department of Communities and Justice (the Department) seeking reimbursement of all the costs incurred in representing legally aided clients. The General Counsel has a discretion when determining the amount of costs that should be paid to the applicant. Legal Aid NSW continues to recover a considerable amount of revenue from legal costs each year. … The Rodden decision may also affect the ability of Legal Aid NSW to recoup costs in other areas, including Suitors' Fund Act 1951 (NSW) costs certificates and costs orders pursuant to the Criminal Procedure Act 1986 (NSW). That is because it would be open to the Department to take the position that the legal fees have not been incurred by the legally aided client and therefore payment of costs to Legal Aid NSW pursuant to these Acts may also cease." 1. Before turning attention to the key terms of the Costs Act, it is convenient to note the terms of the grant of legal aid in support of the applicant's defence in the criminal proceedings. It was not in evidence before the primary judge. 2. By letter to the applicant dated 20 January 2020, the Commission wrote: "We will pay for a lawyer to represent you in your case. This letter tells you what happens now, and what we need you to do. Your grant of legal aid starts from 13 December 2019. Your lawyer can't ask you to pay for work they do after 13 December 2019, and we won't pay for any work they did on your case before then. … Will I have to pay anything? Yes, you need to pay $75.00 towards the cost of your case by 19 February 2020. This is called your contribution. You may have to pay more depending on your situation or the type of case you have. For example, we might ask you to pay more: • If your financial circumstances change before your case ends-for example, if you get a job or lump sum of money. • When your case is finished. For example, if you win your case and the court awards you money or property, we may ask you to pay us back what we spent on your case. • In some cases if you own your own home you will have to pay the full cost of your case." 1. By a letter of the same date, the Commission wrote to the applicant's lawyer as follows: "Your client's application for legal aid received on 13 December 2019 has been granted. Terms of the grant Your client has a grant of legal aid for representation in this criminal law matter. The grant of legal aid is effective from 13 December 2019. Legal Aid NSW will not pay for any legal expenses or disbursements incurred before that date. Lawyers' professional fees and disbursements are paid in accordance with the Legal Aid NSW Fee Scale or where there is no fee scale for disbursements, as authorised by Legal Aid NSW. You cannot charge your client or any person for legal work done in this matter on or after 13 December 2019. Doing so would be in breach of section 41 of the Legal Aid Commission Act 1979 (NSW) (the Act). … Client contribution In most cases Legal Aid NSW will ask clients to contribute to the costs of the legal services we fund. We may: • impose an initial contribution when we grant aid • impose a further contribution later if the client's financial circumstances improve, and • impose a final contribution when the grant is completed. In some cases this may be equal to the total costs of the matter. The total contribution amount imposed to date in this matter is $75.00. Where your client is required to pay a contribution, your client must pay any outstanding contribution directly to you and Legal Aid NSW will deduct this amount from your invoice. If you are an inhouse lawyer you must ensure your client is aware of the due date 19 February 2020 for the contribution and that your client has read the contribution information sheet and understands the available options for paying the contribution. … Your invoice Proforma invoices for this grant can be accessed in Grants Online. You should submit your invoices for payment when the work item is completed or the matter concluded. All fees stated are exclusive of GST. Proforma invoices for counsel's fees should be reassigned in Grants Online to the barrister, to enable the barrister to claim his or her fees directly from Legal Aid NSW. You should be aware that your claims and this file are subject to audit by Legal Aid NSW. You must certify in your invoice/s that your claim/s are correct." Costs Act 1. In Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 (Nadilo), Kirby P described the Costs Act as: "reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings: see Attorney- General of Queensland v Holland (1912) 15 CLR 46 at 49; Latoudis v Casey (1990) 170 CLR 534 at 556; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92; Acuthan v Coates (1986) 6 NSWLR 472 at 479. The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (in circum­stances of disputed interpretation) from the words in which parliament has expressed itself." 1. Section 2 of the Costs Act relevantly provides: "(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. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) …" 1. Section 3 goes on to provide: "(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate— (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. …" 1. As shall be seen, of particular importance for Fagan J in reaching his decision was s 4 of the Costs Act. Headed "Payment of costs", it provides that: "(1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. (2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). (3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant— (a) has received or is entitled to receive, or (b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, because of the applicant's having incurred those costs. (4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable. (5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3). (6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act." 1. Notwithstanding that it is no longer the Director-General but now the Secretary of the Attorney General's Department or his delegate who is the relevant statutory officer (see [10] above), for consistency with the language of the Costs Act and ease of reference, we refer in the balance of these reasons to the Director-General for the purposes of identifying the relevant statutory officer who is invested with the discretions and powers under s 4 of the Act. 2. As observed by Simpson J in R v Johnston [2000] NSWCCA 197 (Johnston) at [15], "[t]he issue of a certificate is therefore the gateway to payment from public funds of costs incurred in the successful defence of a criminal prosecution." The decision of Fagan J 1. The application for a costs certificate came before Fagan J by way of Notice of Motion dated 4 August 2022. Prayer 1 of that Notice of Motion sought the following order, picking up the language of s 3(1) of the Costs Act: "That in relation to the acquittal of the applicant Simon Rodden on count 3 in the trial on indictment in proceedings before His Honour Justice Fagan grant a certificate under section 2 of the Costs in Criminal Proceedings Act 1967 (NSW) certifying: a. If the prosecutor had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, and b. That any act or omission of the applicant Simon Rodden that contributed, or might have contributed to the institution or continuation of proceedings was reasonable in the circumstances." 1. Prior to the hearing of the Notice of Motion, his Honour indicated to the parties that he was "extremely doubtful" whether there ought to be a certificate in the case of an accused person who had been acquitted and whose defence had been fully funded by legal aid. His Honour exposed in short form his reasons for this preliminary view so that it could be addressed by the parties at the hearing of the application for a costs certificate. 2. The essence of his Honour's decision has been noted at [11] above and, as will be apparent, his Honour did not deviate in his reasons from the preliminary view he had expressed to the parties. It should be noted that no evidence was led by either the applicant or the Crown on the application for the s 2 certificate. His Honour was informed, however, and proceeded on the basis that: 1. the applicant was fully funded, and had not laid out any of his own money for the purposes of his defence; 2. the Commission recovered several million dollars each year in respect of amounts paid for the purposes of providing legal aid as a result of the s 2 certification procedure. As has been noted at [9] above, the first of these matters was not quite correct (although nothing ultimately turns on this, given our views on the issues of statutory construction). The second, however, was not controversial and indeed was supported by the subsequently filed evidence on behalf of the Commission in this Court. 1. The primary judge began his reasons by setting out the relevant provisions of the Costs Act, and by noting that the applicant had received a grant of legal aid pursuant to s 34 of the LAC Act which was not subject to any condition requiring the applicant to make a financial contribution to his own defence. 2. The primary judge then said: "Mr Rodden has no personal interest in this application. It is brought by the Legal Aid Commission in his name." It is not apparent on what basis the primary judge made this last statement: it is not reflected in the terms of the Notice of Motion that was before him nor in the written submissions that were filed nor in the oral argument in relation to the costs. 3. The primary judge then noted that he had to apply the statutory task in s 3(1)(a)-(b) and then exercise his discretion either to grant or refuse a certificate (for presentation to the Director-General under s 4). His Honour noted at [5]: "The Court is not required to determine how the Director-General should deal with the application under s 4 that would follow upon the grant of a certificate. However, it is strikingly incongruous that the certificate is being sought by the Commission in order to pursue payment out of public funds of the amount of costs incurred on behalf Mr Rodden, where those costs have already been publicly funded. As can be seen from s 63 of the Legal Aid Commission Act, the money in the Legal Aid Fund that has been drawn upon by the Commission to pay for Mr Rodden's defence is supplied mainly from the State's general revenue. The machinery of the Costs in Criminal Cases Act is being invoked in this case to obtain from public funds, a second time, the one outlay of defence costs." 1. His Honour then turned to what he saw as the fundamental flaw in the applicant's claim for costs: "These considerations warrant an examination of s 4 of the Costs in Criminal Cases Act to ascertain whether it is the intention of Parliament that the Court should hear and determine a claim, in substance by the Legal Aid Commission although in the name of the successful defendant, in such circumstances. The issue of a certificate, if subsequently acted upon by the Director-General, would merely lead to churning of funds between public accounts. Given that end result, litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court. For reasons that follow, I do not consider that the Court's discretion under s 2 of the Costs in Criminal Cases Act should be exercised to issue a certificate in these circumstances. That conclusion follows from my interpretation of s 4, in which the Act prescribes how the Director-General must respond to an application for payment out of the Consolidated Fund." 1. The effect of this reasoning was to foreclose a positive exercise of discretion in favour of the grant of a certificate in respect of any and all applications made for or on behalf of a recipient of legal aid who is acquitted and who was fully funded in his or her defence. 2. His Honour next turned to the construction of s 4 of the Costs Act. He said that it was apparent that the expression "costs incurred in the proceedings" in s 4(1) was a reference to costs incurred by the person who was acquitted, stating that this followed from the combined operation of ss 2, 3 and 4 of the Costs Act. He continued (at [7]): "An application to the Director-General under s 4(1) in the name of Mr Rodden, as the defendant to whom the certificate might be granted if the tests in s 3(1)(a) and (b) are resolved favourably to him, would be futile on its face because no costs were "incurred in the proceedings" by him. There is no foundation in the statute, considered as a whole, for interpreting s 4(1) as if costs outlaid in Mr Rodden's interests by the Legal Aid Commission should be regarded as incurred by Mr Rodden." 1. His Honour then considered the position in civil proceedings in which he observed that the principle of indemnity for costs incurred by a successful party: "extends to cases where the litigant has been funded by an insurer who may have conducted the case under a right of subrogation, or by a trade union of which the litigant is a member, or where the litigant has been legally aided: Wentworth v Rogers [2006] NSWCA 145 at [104] (Basten JA). In the case of a legally aided civil litigant, s 42 of the Legal Aid Commission Act will apply." The terms of s 42 of the LAC Act have been noted at [25] above. 1. His Honour next drew a contrast with criminal proceedings, stating (at [9]) that: "In criminal proceedings where the Legal Aid Commission funds the defence of an accused person, there is no analogy with the position of a civil litigant whose insurer or trade union pays his or her costs. Section 42 has no application. The only power of a criminal trial court with respect to costs is to grant a certificate under the Costs in Criminal Cases Act. That is not equivalent to a power to "order the payment of costs in proceedings before it", within the meaning of s 42." 1. His Honour expressed his disagreement with the decision of Buddin J in R v Stuart Carrick (2003) 57 NSWLR 606; [2003] NSWSC 313 at [6] (Carrick). Buddin J had held that it was no impediment to the bringing of an application for a certificate pursuant to s 2 of the Costs Act that the applicant is, and was represented, by the Legal Aid Commission. Buddin J had referred to s 42 of the LAC Act in support of this conclusion. This decision was applied in R v Hannah Quinn (No 2) [2021] NSWSC 494 at [158]. Fagan J observed that it was not apparent that Buddin J and N Adams J in the latter case had had the benefit of argument on the issue in these two cases. 2. Fagan J then turned to s 4(2) of the Costs Act, stating (at [12]-[14]) that: "… it does not appear to be open to the Director-General to form an opinion that "the making of a payment to the applicant is justified" where the applicant, Mr Rodden, has himself incurred no costs. There is no foundation in the Act for interpreting those words as if they would be satisfied by the Director-General forming an opinion that a payment not to the applicant but to the Legal Aid Commission, which incurred legal costs in the applicant's interests, is justified. The Act is remedial, directed to alleviating the plight of accused persons who are unsuccessfully prosecuted and who, before the passage of the legislation, had no recourse: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 (Kirby P, as his Honour then was). There is no indication that Parliament intended the Act to operate as a mechanism for regulating additional distributions of public funds to a publicly-financed statutory body such as the Commission. In s 4(2) it is provided that the amount of costs that the Director-General may approve for payment to the applicant is not to exceed a "maximum amount", which is defined in sub-s (3). The maximum is the amount that "would reasonably have been incurred" reduced by, inter-alia, the amount that "the applicant has received or is entitled to receive [...] independently of this Act, because of the applicant's having incurred those costs". In a case where the Legal Aid Commission has paid and/or will pay the entirety of the applicant's costs of his defence, that occurs "independently of" the Costs in Criminal Cases Act and has the effect that the maximum amount that the Director-General may determine is reduced to nil. Pursuant to s 4(4), the Director-General "may refuse an application [...] if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable". In my view the words "costs are otherwise recoverable" apply to the situation where the entirety of the costs of a person's criminal defence have been paid or will be paid from a fund of public money allocated to the Legal Aid Commission independently of the workings of the Costs in Criminal Cases Act." 1. His Honour expressed the view at [15] that, even if he were to form the requisite opinion under s 3 so as to open the gateway to a s 2 certificate, his "interpretation of the constraints that s 4 places upon the Director-General's power to approve a payment is such that [he did] not consider that the discretion under s 2 should be exercised by issuing a certificate to a person whose defence has been fully funded by the Legal Aid Commission." 2. His Honour then concluded his analysis by referring to perceived public policy considerations that informed his decision: "[18] The present application is conducted, as a matter of form, as if Mr Rodden were utilising the Act's remediation of what was once the denial to an accused person of indemnity for his or her costs of a successful defence. The form of the application ignores the reality of Legal Aid funding. It is premised on a fiction that someone needs to be indemnified from the public purse for the costs of defending a charge. … [19] The Court was informed that numerous such applications are routinely made and upheld by the criminal courts of the State, resulting in certificates being presented to the Director-General and payments being made thereunder to the Legal Aid Commission, in the amount of "several millions of dollars" annually. This must mean that dozens of such costs certificate applications, in respect of fully legally aided accused persons, are made by the Commission each year, occupying the Courts and lawyers for the Commission and for the Director of Public Prosecutions. All participants in these applications represent significant public cost. In my respectful view this is a massive waste of public expenditure upon a form of proceeding that was never envisaged when the Costs in Criminal Cases Act was passed and that is not justified by its terms. As noted earlier, all that can be achieved by these applications is the movement of money between public accounts, which could be done by executive direction rather than by involving statutory bodies in litigation against each other." (emphasis added) 1. It was by reference to this analysis of both the Costs Act and s 42 of the LAC Act coupled with various observations as to public policy that his Honour dismissed the application, repeating (at [20]) that the application was that of the Legal Aid Commission and not Mr Rodden. Again, the basis for this assertion was not apparent. 2. As noted at [11] above, his Honour went on to consider whether the circumstances of the prosecution of Mr Rodden satisfied the tests in s 3 of the Costs Act. The jurisdictional issue Was Fagan J's decision an exercise of judicial power or the performance of an administrative function? 1. The starting point of the analysis entails consideration of the nature of decision made by Fagan J, namely whether it was judicial or of an administrative character, noting that judges of State Supreme Courts may be assigned administrative functions which are amenable to review in the exercise of the Supreme Court's supervisory jurisdiction: see, for example, Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-49; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343 at [22]-[24]; Lodhi v Attorney General (NSW) [2013] NSWCA 433 at [21]-[22]; (2013) 241 A Crim R 477; Buttrose v Attorney General (NSW) [2015] NSWCA 221 at [4]; (2015) 324 ALR 562; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 at [140]; Clark v Attorney General (NSW) [2020] NSWCA 70 at [12]; Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298; Huynh v Attorney General (NSW) [2023] NSWCA 190. 2. There can, however, be no exercise by the Court of Appeal of its supervisory jurisdiction in respect of judicial decisions of State Supreme Courts, the writ of certiorari (and orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act) only lying against judges of inferior courts: Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241; [1951] HCA 3; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 387, 395; [1985] HCA 67. Decisions of State Supreme Court judges exercising judicial power may only be reviewed by way of appeal and, in certain cases, then only subject to a grant of leave pursuant to s 101 of the Supreme Court Act 1970 (NSW). 3. By way of contrast, a "defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and … also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [55]. It is for this reason that challenges to decisions of District Court judges to refuse certificate pursuant to s 2 of the Costs Act have been made to the Court of Appeal by way of invocation of that Court's supervisory jurisdiction: see, for example, Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (Gwozdecky); Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (Allerton); Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 (Ramskogler); Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 (Mordaunt). The present case is different because the decision being challenged, if judicial in character, was that of a Supreme Court judge. 4. It was observed in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 (Solomons) at [14] that the Costs Act was "not drafted with a close eye to the distinctions between jurisdiction and power, and between judicial and non-judicial power which are required by Ch III of the Constitution for the laws of the Commonwealth." No Chapter III issues arise in the current case but the point made in the joint judgment was well-taken and reflected the uncertainty implicit in the alternative procedural course taken by Mr Rodden in the filing of the two applications. 5. The Crown submitted, and we accept, that the function being performed by Fagan J was not of an administrative character, but was an exercise of judicial power, not amenable to review by the Court of Appeal in the exercise of its supervisory jurisdiction. So much follows from this Court's earlier decision in El-Zayet v The Queen (2014) 88 NSWLR 556; [2014] NSWCCA 298 (El-Zayet). At [68], Beazley P and Emmett JA said that they had "no doubt that a judge, in deciding whether to grant a certificate under s 2, is exercising judicial power". It is implicit in McColl JA's conclusion in El-Zayet that an appeal lies to this Court under s 5F(3) from the refusal to grant such a certificate that the refusal involved the exercise of judicial power. 6. This characterisation was also supported by the decisions of McHugh J and Kirby J in Solomons. Mr Solomons had been acquitted of charges under the Customs Act 1901 (Cth) following a trial in the District Court, exercising federal jurisdiction. His application for a s 2 certificate was refused by the District Court judge. Mr Solomons sought judicial review of that decision in the New South Wales Court of Appeal. The question which arose was whether the Costs Act could be engaged in such a case. By majority, the Court of Appeal held that neither s 68 nor s 79 of the Judiciary Act 1903 (Cth) rendered the provisions of the Costs Act applicable so as to authorise the grant of a s 2 certificate in the course of the exercise of federal jurisdiction. That decision was upheld in the High Court. 7. No issue arose in that case as to whether or not the question could have been agitated on an appeal to the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act, and therefore the question of whether the refusal of a certificate was an interlocutory order made in the underlying criminal proceedings did not directly arise. At [49], omitting footnotes, McHugh J held, however, that: "The jurisdiction of State courts under the Costs Act involves exercising judicial power. … The paradigm case of an exercise of judicial power involves the making of binding declarations of rights in the course of adjudicating disputes about rights and obligations as a result of the operation of the law upon events or conduct that have or has occurred. The issue determined in a s 2 application is within that paradigm. No narrow view should be taken of what constitutes judicial power." At [125], Kirby J held that "the functions performed by the judicial officer under the Costs Act are "truly appurtenant" to the exercise of the judicial power. Federal courts themselves grant like certificates all the time. No one suggested that, in doing so, they exceeded their judicial warrant." 1. Reference was made in submissions to two decisions of Basten JA which were said to stand for the proposition that the exercise performed by a judge pursuant to s 2 of the Costs Act was administrative rather than judicial. The first was Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) 185 A Crim R 580 (Chahal). This was an application for judicial review of a decision of Knox DCJ who had refused a s 2 certificate. At [55], Basten JA observed: "There is no right of appeal from the refusal of such an application. Accordingly, the challenge to his Honour's decision came by way of an application for relief in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970 (NSW)." 1. Basten JA's observation as to no right of appeal lying from the refusal of an application of a s 2 certificate was plainly enough (and correctly) referring to there being no right of appeal to the Court of Appeal. No argument appears to have been made as to whether an appeal lay under s 5F of the Criminal Appeal Act (and the proceedings had not been commenced in that Court). Because the District Court of New South Wales is not a superior court of record, its decisions are amenable to the Court of Appeal's supervisory jurisdiction, irrespective of whether the decision in question be characterised as judicial or administrative. 2. The question of characterisation under consideration in the present case did not arise and did not need to arise in Chahal. Further, neither of the other two judges in Chahal expressed agreement with Basten JA's observation set out above. 3. The other decision referred to in submissions was AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 (AB). This, too, was a case concerning the refusal by a District Court judge to grant a certificate pursuant to s 2 of the Costs Act. That decision was sought to be quashed in the exercise of the Court of Appeal's supervisory jurisdiction. Basten JA noted at [12] that the applicant had sought to file a Notice of Appeal but that this had been dismissed by consent, stating that "there is no right of appeal". That proposition was certainly correct, insofar as it applied to the Court of Appeal. Again, no attention was given (nor did it need to be) as to whether the District Court judge had been exercising judicial power or performing an administrative function in refusing to grant a s 2 certificate. As with Chahal, neither of the other two members of the Court addressed the issue at all. 4. Neither Chahal nor AB stand for the proposition that the nature of a judge's task under s 2 of the Costs Act is other than judicial. In any event, in the absence of any challenge to the Court of Criminal Appeal's decision El-Zayet on that point, that is the correct characterisation of the exercise performed by Fagan J in reaching his decision. There was a hearing in open court, resulting in reasons for judgment and an order based on an evaluation of the basis upon which the prosecution was commenced and the construction of the Costs Act. 5. One consequence of our conclusion that the task performed by Fagan J was judicial in character is that the summons for judicial review must be dismissed as incompetent. The Court of Appeal lacks jurisdiction to quash his Honour's decision by a grant of certiorari. 6. Orders dismissing the Amended Summons will be made in the Court of Appeal. Applicability of Criminal Appeal Act s 5F 1. Proceeding, therefore, on the basis that Fagan J's decision involved the exercise of judicial power and resulted in an "order" dismissing the application, the next question that arises is whether the decision was of a character that gave rise to a right of appeal pursuant to s 5F of the Criminal Appeal Act. That section relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to— (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings— (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 1. The Crown took the position in argument that, although judicial in character, a decision to grant or refuse a certificate under s 2 of the Costs Act was neither interlocutory nor a decision made in "proceedings (including committal proceedings) for the prosecution of [an offender] on indictment in the Supreme Court" within the meaning of s 5F of the Criminal Appeal Act. As a consequence, the Crown contended that the purported appeal under s 5F was also incompetent. 2. In light of the submissions made by the Crown, it is necessary to be quite precise about what was before the primary judge. Mr Rodden had filed a notice of motion dated 4 August 2022 in proceeding 2019/00181340, seeking a certificate under s 2 of the Costs Act. There was a directions hearing on 9 August 2022, a further hearing on 8 September 2022 resulting in a judgment on 16 September 2022. That actual order entered into the Justice Link system for the reasons given in that judgment was: "Application under the Costs in Criminal Cases Act 1967 for a costs certificate dismissed." 1. The Crown's two essential points were that the order finally disposed of the application for a certificate (and thus was not interlocutory), and that it was not made in the proceedings which came to an end following the jury's verdict and the entry of an acquittal. 2. The first objection may be rejected for the reasons given by Windeyer J in Hall v Nominal Defendant (1966) 117 CLR 423 at 443; [1966] HCA 36. "It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation." 3. Generally speaking, an interlocutory order is one which does not finally resolve the dispute between the parties. In civil proceedings, it includes orders after final judgment, such as an order for the appointment of a receiver: Smith v Cowell (1880) 6 QBD 75. A submission similar to that advanced by the Crown was rejected by all members of the Court of Appeal. Brett LJ said at 78: "But it is said that interlocutory must mean something between action begun and final judgment. I cannot agree. In my opinion "interlocutory order" there means an order other than a final judgment or decree in an action." 1. Baggallay and Cotton LJJ made the same points at 77 and 79. The reasoning of Brett LJ was approved in Hall v Nominal Defendant by Taylor J at 440 with whom Owen J agreed. It was also approved, in the context of challenges to the competency of appeals from orders concerning costs, in Kowal v Zoccoli (2002) 4 VR 399; [2002] VSCA 100 at [5] and Zaghloul v Woodside Energy Ltd [2019] WASCA 187. In the latter, Quinlan CJ, Murphy and Pritchard JJA said at [57]-[58]: "Interlocutory orders are orders made to resolve an issue arising out of an application made in the course of a proceeding, but they may also be made before the proceeding commences, and even after the conclusion of the proceedings. They may be contrasted with final judgments or orders, which finally determine the rights of the parties in the principal cause pending between them, having regard to the legal, rather than the practical, effect of the judgment or order. Consequently, an interlocutory order is one which does not finally dispose of the rights of the parties in the proceedings. The orders made by the primary judge were, in our view, interlocutory in nature, in that they did not finally resolve the rights of the parties in the principal cause pending between them, but merely determined the costs able to be included in the costs allowed on the taxation." 1. The order dismissing Mr Rodden's application was not the final order resolving whether he was to be convicted of the offence charged on the indictment, and thus was an interlocutory order. In Victoria Legal Aid v County Court of Victoria (2004) 9 VR 686; [2004] VSCA 113 at [7], Chernov JA observed: "Ordinarily, an order is interlocutory unless it finally determines the rights of the parties in a principal cause between them, and whether that is the case is to be determined by the legal, not the practical, effect of the order" (emphasis added). 2. An order will also be interlocutory where it is open to apply for the same relief by reason, for example, of a change in circumstances. Thus, an unsuccessful applicant to set aside a default judgment may make a subsequent application, the former unsuccessful application being only interlocutory in character: Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246 at 248; [1981] HCA 20. 3. The matter can also be tested in this way: had Mr Rodden been granted a s 2 certificate, that would not have determined any right he had to seek costs as the award of costs was ultimately under the control of the Director-General by reason of and pursuant to s 4 of the Costs Act. 4. None of the above is to cast doubt upon the line of authority (collected in Liristis v Director of Public Prosecutions [2018] NSWCCA 196 at [15]) that rulings on evidence are not interlocutory orders or judgments for the purposes of s 5F(3). 5. We are satisfied that the decision of Fagan J was interlocutory, meaning that, provided that it was an order made in the criminal proceedings, s 5F of the Criminal Appeal Act is engaged. 6. The Crown's second objection is also readily disposed of. Section 2 of the Costs Act refers to a certificate being granted "in any proceedings relating to any offence". That would include, in our opinion, the very proceedings in which the applicant had been charged, tried upon indictment and acquitted. 7. Neither the Costs Act nor any other statutory provision requires or contemplates that a separate proceeding is to be commenced for the purposes of applying for a certificate. The notice of motion purported to be filed in the proceeding allocated by the Court to the prosecution of Mr Rodden and the six co-accuseds who stood trial with him. The matters that the judge was to determine pursuant to s 3 of the Costs Act related to the reasonableness of the prosecution of which the applicant was acquitted. The order was purportedly entered in the same proceeding. If the notice of motion and order were not made in the proceeding for the prosecution of the seven men on indictment in the Supreme Court, what proceeding were they made in? 8. It may be accepted that neither the drafting of the notice of motion nor the framing of the order may be determinative of whether it answers the description in s 5F(3) of an order given or made in the proceedings. But the same conclusion is reached by regard to first principles as well as authority. 9. In Cheney v Spooner (1929) 41 CLR 532 at 536-537; [1929] HCA 12 it was said that a "proceeding", as that term was used in s 16 of the Service and Execution of Process Act 1901 (Cth), was "merely some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer". Plainly the application for a costs certificate under the Costs in Criminal Cases Act falls within that description. The Crown maintained that it was "not an aspect of the Court's jurisdiction to convict and sentence a person charged on indictment", and therefore was not given or made "in the proceedings" but in separate proceedings. 10. There was a dispute between the Crown and Mr Rodden leading to his trial. But that dispute was not wholly resolved by the jury's not guilty verdict or the acquittal which was entered. The dispute extended to whether or not he should be entitled to a certificate. That separate issue derived from the trial, in the sense that its subject matter was the expense Mr Rodden had incurred, and it turned on whether the Crown had acted reasonably when instituting proceedings. On that issue, both the Crown and Mr Rodden exchanged written and oral submissions, culminating in a judgment adverse to Mr Rodden. 11. Thus irrespective whether "in the proceedings" is viewed as a matter of form, or substantively in the resolution of the dispute between the Crown and Mr Rodden, s 5F(3) is engaged. As a matter of form, the notice of motion was filed and the order made in the same proceeding. As a matter of substance, the order dismissing his notice of motion seeking a certificate formed part of the resolution of the dispute between the Crown and Mr Rodden. 12. That result is supported by authority. In Solomons at [45], McHugh J expressed the view that authority to grant a certificate pursuant to s 2 of the Costs Act would be exercised "in the proceedings…upon indictment"; see also the observations of Kirby J at [109] to similar effect. Further, the result reached above accords with that reached by McColl JA in El-Zayet at [160]-[169]. True it is that Beazley P and Emmett JA did not express a view on that issue, but it is clear that this Court has had the benefit of argument, and reference to decisions including R v Pavia (1993) 67 A Crim R 364 (Pavia) to which the Court of Appeal in El-Zayet was not taken. 13. In R v Pavia (1993) 67 A Crim R 364, a jury was discharged after the Crown sought to lead evidence of which the accused had no prior notice, and the accused sought and obtained an order that the Director pay costs thrown away by reason of the aborted hearing. Carruthers J, with whom McInerney J agreed and Sully J expressed general agreement, rejected submissions which resembled those advanced in the present proceeding (at 368): "Then it was argued that this Court does not have jurisdiction to entertain the appeal because the subject order was not an interlocutory judgment or order made in "proceedings" to which s 5F of the Criminal Appeal Act applies. In this regard it was argued that, the jury having been discharged on the indictment, no "proceedings" existed at the time the appeal was lodged. In other words, the costs order only related to proceedings that existed prior to the discharge of the jury. This argument proceeds upon the mistaken assumption that the indictment was spent by the discharge of the jury, but this is not so. The order was made by Grove J in the course of the overall proceedings on indictment against the respondent. This particular ground was developed during argument to encompass the submission that this Court lacks jurisdiction to hear this appeal under s 5F because the order made by Grove J was not an "interlocutory order" made in the proceedings. In my view this submission also fails. Again one must categorise the order made by Grove J in the context of the overall proceedings. In my view the costs order was an interlocutory order because it did not dispose finally of the overall proceedings by the Director against the respondent." 1. True it is, as the Crown submitted, that there were ongoing proceedings in the Supreme Court for a trial, which is different from the present case. But the decision is difficult to reconcile with the proposition that "in the proceedings" is so narrowly construed as the Crown submits. 2. In R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 (Manley), upon which the Crown relied, the Court of Criminal Appeal held by majority that jurisdiction to grant a s 2 certificate was not confined to the judicial officer who held the trial. That may be accepted but it does not bear upon the question as to whether such an application would or should be separate from the original criminal proceedings. In particular, Simpson J's judgment at [67] in which her Honour characterised the application for a certificate under the Costs Act as "an independent application authorised by statute" was considered and correctly explained by McColl JA in El-Zayet at [168] who said that it "says no more than is self-evident. A s 2 application is a creature of statute. It does not deny that the application, as s 2 dictates, is made "in any proceedings relating to any offence..."". Simpson J's observation was made in answer to a specific submission to the effect that the Court of Criminal Appeal had no jurisdiction because of the decision in Grierson v The King (1938) 60 CLR 431; [1938] HCA 45. It was not made in the context of s 5F of the Criminal Appeal Act. 3. The Crown Advocate, Dr Kell SC, also sought to derive support from Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106; [1956] HCA 29, in which the High Court considered questions of jurisdiction to grant a certificate pursuant to the Suitors' Fund Act 1951 (NSW) following a successful appeal to it. At least two members of the Court resolved the question by reference to the content and nature of the High Court's appellate jurisdiction under s 73 of the Commonwealth Constitution, while Dixon CJ took the view that the requisite jurisdiction existed. The different statutory and factual context of the case did not advance the Crown's contentions on this aspect of the hearing. 4. For these reasons, we reject the Crown's challenge to the competency of the appeal brought pursuant to s 5F(3). The applicant had an entitlement to appeal from the decision of Fagan J pursuant to s 5F of the Criminal Appeal Act, subject to a grant of leave. Leave to appeal 1. Having concluded that the decision meets the description an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act, the question of leave must be considered. That question must be considered by reference to the various grounds of appeal. 2. The applicant's grounds of appeal were as follows: "1. That the learned presiding judge erred in finding that the construction of s 4 of the Costs in Criminal Cases Act 1967 (NSW) and construction of s 42 of the Legal Aid Commission Act 1979 (NSW) did not permit the granting of a certificate where the applicant is legally aided; 2. his Honour erred in taking into account the method by which payment would be made by the Director-General to the Legal Aid Commission and failing to take into account public policy considerations; and 3. the learned presiding judge erred in finding that it was not unreasonable for the Crown to institute proceedings against the applicant." 1. As part of its joinder application, the Commission sought leave to add a further ground of appeal which, for ease of reference, has been numbered 4 as follows: "4. the primary judge made findings with no evidence, [and/or] alternatively no probative evidence, to support them, being: (a) the Legal Aid Commission has paid and/or will pay the entirety of the applicant's costs of his defence and the applicant's defence has been fully funded by the Legal Aid Commission (at [13], [15]): (b) costs certificates are presented to the Director-General and payments are made thereunder to the Legal Aid Commission, in the amount of "several millions of dollars" annually, which amounts to a "massive waste of public expenditure" (at [19]); (c) all that can be achieved by applications for costs certificates in respect of legally-aided persons is the movement of money between public accounts (at [19])." 1. Grounds 1, 2, and 4(b) and (c) all relate, directly or indirectly, to Fagan J's construction and exposition of s 2-4 of the Costs Act in light of his understanding of certain provisions of the LAC Act. As has been noted earlier in these reasons, his Honour's decision has importance significantly beyond the facts of the current case and raises questions of public importance. Leave to appeal in respect of grounds 1 and 2 should be granted. 2. As noted at [5] above, the Commission's joinder application was declined. Leave to intervene does not carry with it the right to add further appeal grounds and it is therefore not necessary to deal with ground 4 contended for by the Commission. 3. In relation to ground 3, what is sought to be appealed from is his Honour's evaluative assessment of the question posed by s 3(1) of the Costs Act, namely whether, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. This Court would ordinarily not grant leave to appeal from an evaluative decision where the decision was open to the primary judge and where he or she had the benefit of knowledge of the underlying proceedings, and the circumstances of the trial as they unfolded. The desirability of the trial judge making such an evaluation, and his or her advantages in so doing, were noted in Manley. 4. In most cases in which there is an appeal from the grant or refusal to grant a certificate, the trial judge will be best placed to make the assessments referred to in s 3. Unless some issue of principle is raised or a question of public importance arises or there is some palpably wrong decision on the facts, it can be expected that this Court will ordinarily either refuse leave or limit the grant of leave to exclude a factual challenge to the merits of the assessment and formation of opinion made under s 3 of the Act. 5. Ground 3 as formulated and indeed as developed, somewhat faintly in submissions, is essentially a challenge to an evaluative conclusion that was well open to Fagan J. Ordinarily, we would have refused leave to appeal in relation to that ground, and almost certainly would have done so were it the only ground of appeal raised. For completeness, however, as the matter was fully argued, ground 3 is dealt with at [137]-[159] below and leave is granted accordingly. 6. Appeal grounds 1 and 2 may be dealt with together. The statutory construction question: appeal grounds 1 and 2 1. The primary judge's reasoning has been noted at [43]-[59] above. 2. To recapitulate, his Honour, proceeding on the basis that the applicant was fully funded by legal aid and therefore did not, could not and would never have any liability in respect of the costs that had been expended on his defence, formed the view that the statutory officer referred to in s 4 of the Costs Act could never exercise his or her discretion to award costs in favour of the applicant. On that basis, his Honour saw no utility in his granting a certificate pursuant to s 2 of the Costs Act even if he were satisfied of both matters referred to in s 3(1) of that Act. 3. In reaching this conclusion – which it may be noted was not one contended for by the Crown before Fagan J – his Honour expressed himself in strong terms about what may be described as policy questions, observing, for example, that: 1. "litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court": at [6]; 2. An application for a costs certificate by an applicant who has been fully funded by Legal Aid represents "a massive waste of public expenditure upon a form of proceeding that was never envisaged when the Costs in Criminal Cases Act was passed": at [19]; and 3. "all that can be achieved by these applications is the movement of money between public accounts, which could be done by executive direction rather than by involving statutory bodies in litigation against each other": at [19]. 1. What his Honour had to say about the construction of the Costs Act and the LAC Act was unnecessary and, in our respectful opinion, wrong for the reasons explained below. 2. It was unnecessary because, on an application for a certificate pursuant to s 2 of the Costs Act, the starting point should be consideration of the two matters set out in s 3(1). Not only does this follow from the structure of the Costs Act, it is well established by authority: see, for example, Gwozdecky at 165; Johnston and Mordaunt. In the present case, his Honour was not satisfied that the prosecution of the applicant was unreasonable within s 3(1)(a) of the Costs Act, applying the objective analysis explained in decisions such as Manley and Johnston, and therefore should never have reached the question of whether to exercise the "residual discretion" which has been held to be encompassed in the word "may" in s 2 of the Costs Act. 3. It would only have been if his Honour had reached the conclusion that the initiation of the prosecution was not reasonable within the meaning of s 3(1)(a) of the Costs Act that he would have needed to consider whether, for some reason, he should exercise his discretion against the grant of the certificate sought. 4. Rather, his Honour concluded that the exercise was one of supererogation because, for the reasons he gave, he would never, in the circumstances of a fully funded legal aid applicant, exercise the discretion under s 2 of the Costs Act to grant a certificate. 5. In Ramskogler at 140 and 142, both Handley JA and Sheller JA proceeded on the basis that the word "may" in s 2 of the Costs Act invests in the judge a measure of residual discretion not to grant a s 2 certificate even if satisfied of the matters referred to in s 3(1) of the Act. Handley JA referred to s 9(1) of the Interpretation Act 1987 (NSW) and Ward v Williams (1955) 92 CLR 496; [1955] HCA 4. Subsequent cases (Manley at [6], [49], [80]; Johnston at [10]; Mordaunt at [36(q)]) have nominated gross delay as an occasion where the discretion may be so exercised against a grant, although none of those cases involved such an exercise of discretion. 6. Contrary to this line of authority, in Solomons at [50], McHugh J, alone of the other judges and by way of obiter, expressed an opinion on the question of discretion. Omitting footnotes, his Honour said: "Under s 2 of the Costs Act, the Court or Judge must determine whether to grant a certificate that specifies the matters referred to in s 3 of that Act. By necessary implication, the grant declares that the applicant has the right to apply under s 4(2) of the Costs Act to the Under Secretary for reimbursement of the costs that the applicant incurred in his or her successful defence. Before granting a certificate, the Court or Judge must consider the matters in s 3 of the Act and make a determination as to whether the proceedings were reasonably instituted or maintained. Although reasonableness involves a value judgment, it is not inconsistent with the exercise of judicial power. Nor does the objective test of reasonableness as prescribed by s 3 involve any reference to external policy considerations, considerations that often tell against the power invested being judicial power. Moreover, although s 2 states the Court or Judge may grant the certificate, no discretionary decision is involved. Upon fulfilment of the conditions specified in s 3 of the Act, the Court or Judge must grant the certificate in accordance with the principles expounded by the House of Lords in Julius v Lord Bishop of Oxford and affirmed by this Court in Ward v Williams." (emphasis added) 1. None of the parties addressed the question of construction raised by McHugh J as to the meaning of the word "may" in s 2 of the Costs Act and, in the absence of argument and in light of the view we have come to in relation to Fagan J's construction of the Costs Act more generally, it is not necessary for us to do so. It suffices to observe that, if the word "may" in s 2, on its proper construction and in accordance with the principles in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, in fact means "must", none of the primary judge's analysis would be relevant as the sole exercise for the Court or a judge or magistrate called upon to grant a certificate would be the formation of the requisite opinion pursuant to s 3 of the Costs Act. 2. On the assumption, however, that s 2 does in fact confer a residual discretion, in the event of judicial satisfaction as to the matters in s 3 (1), a certificate should ordinarily be granted. In exercising the residual discretion, the beneficial nature of the Costs Act should be fully borne in mind. That that is the character of the legislation has been noted in many cases including Nadilo at 743 (see [37] above); Allerton at 559-560; Mordaunt at [36(a)]. In the ordinary course, it is not the function of judges considering whether to grant a certificate under s 2 to consider the matters raised by section 4 including the quantification of costs and the extent to which the applicant for the certificate is obliged to pay costs or has been or will be reimbursed for the costs. Those are matters for the Director-General. 3. In this context, it should also be noted that adverse costs orders (and the possibility of them) play an important role in litigation. Although principally intended to be compensatory, the very possibility of an adverse costs order focuses the mind of the moving party in commencing the proceedings or laying charges: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [68] per McHugh J (Oshlack). Although more difficult to obtain in criminal proceedings because of the gateway imposed by s 3(1), the Costs Act represented a significant departure from the common law position that there was to be no recovery of costs in criminal proceedings. Irresponsible and unreasonable prosecutorial decisions may be sanctioned by an adverse order as to costs. The construction of the Act favoured by the primary judge removes this salutary potential aspect of its operation in what will be a not insignificant number of criminal trials where an accused is fully funded by legal aid. 4. Was his Honour's analysis nevertheless justified as a matter of statutory construction? We respectfully think not. 5. The primary judge's starting point was s 4(1) of the Costs Act. As noted at [51] above, his Honour construed the expression "costs incurred in the proceedings" in s 4(1) as "costs incurred in the proceedings by the person who has been acquitted". 6. There is no obvious reason why the expression "costs incurred in the proceedings" should be so confined and not extend to or include "costs incurred in the proceedings by or on behalf of the person who has been acquitted". After all, it is not uncommon for a litigant to have his or her costs paid for or undertaken to be paid for on his or her behalf, whether by an employer, trade union, insurer, family member or supporter: cf. Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [104]. That will not ordinarily result in the denial of an award of costs. Indeed, in many cases, the detail of a party's funding arrangements will be entirely unknown to the Court and the other side. 7. Perhaps most fundamentally, the text of s 4(1) does not contain the limitation the primary judge introduced into it. Confining s 4(1) in a way which limits the reach of the Act's application is contrary to the broad way in which beneficial legislation, including the Costs Act itself, should be interpreted: Allerton at 559F. 8. The primary judge said that his interpretation was supported by ss 2, 3 and 4 of the Costs Act. He expressed himself in terms of the "futility" of the exercise unless s 4(1) was confined to "costs incurred by the applicant", presumably on the basis that the Director-General would make no order in favour of an acquitted person who had in fact incurred no costs. His Honour's reasoning, however, overlooked the potential operation of ss 44-46 of the LAC Act which contemplate that the Commission may order a legally assisted person to pay the Commission some or all of the amounts that have been incurred in his or her defence. As noted at [31] above, an obvious occasion for such an order would be where the legally assisted person has been acquitted and obtains a costs certificate pursuant to s 2 of the Costs Act. 9. No doubt whether the Director-General would exercise his or her undoubted discretion under s 4 of that Act is highly likely to be influenced by whether the Commission had required payment from the legally-assisted person in respect of some or all of the costs expended on his or her behalf. The power to do so is most likely to be exercised by the Commission once it has become clear that the legally assisted person has or is likely to become able to do so. One circumstance where that will be the case will be where the acquitted legally assisted person has received a s 2 certificate. As the evidence before the Court establishes, and as Fagan J was informed, the Commission recovers millions of dollars each year following the grant of s 2 certificates and the exercise of discretion by the Director-General. 10. In short, his Honour wrongly assumed that, because the applicant had been "fully funded" by the Commission, the applicant could never be out of pocket, or made legally liable to make a payment to the Commission, in respect of the costs that had been incurred in furtherance of his defence. This flawed assumption carried through to his Honour's statement that "it does not appear to be open to the Director-General to form an opinion that "the making of a payment to the applicant is justified" where the applicant, Mr Rodden, has himself incurred no costs." A powerful discretionary reason for the Director-General to exercise his discretion favourably would be if the Commission had exercised its powers to require the applicant to make a contribution up until the whole of the amount of costs incurred in his defence. It was premature of the primary judge to speculate as to what was open to the Director-General. That would all depend upon the circumstances at a time which necessarily post-dated the grant of a certificate pursuant to s 2 of the Costs Act. 11. Notwithstanding his Honour's statement that the application pursuant to s 2 was made by the Commission in the applicant's name, the Commission was not, in fact, before his Honour nor did he have before him the correspondence in relation to the grant of legal aid. 12. That correspondence is set out at [35]-[36] above. Although expressed in lay language, the Commission's letter to the applicant indicated, in answer to the heading "Will I have to pay anything?": "Yes, you need to pay $75.00 towards the cost of your case by 19 February 2020. This is called your contribution. You may have to pay more depending on your situation or the type of case you have. For example, we might ask you to pay more: • If your financial circumstances change before your case ends-for example, if you get a job or lump sum of money. • When your case is finished. …" 1. The letter to the applicant's lawyers was even more explicit: "In most cases Legal Aid NSW will ask clients to contribute to the costs of the legal services we fund. We may: • impose an initial contribution when we grant aid • impose a further contribution later if the client's financial circumstances improve, and • impose a final contribution when the grant is completed. In some cases this may be equal to the total costs of the matter." (emphasis added) 1. It should also be noted that s 4(3) does not support the primary judge's construction. True it is that that sub-section refers to the maximum amount of costs to be awarded as being "the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by …". This provision is not looking at actual costs incurred by the applicant but, rather, at what they would reasonably have been, objectively assessed. The purpose of this section is plain enough. It expresses a cap by reference to an objective criterion of reasonableness in the context of what was required for the applicant's defence. 2. The primary judge also relied upon s 4(4) of the Costs Act. At [14], he said: "Pursuant to s 4(4), the Director-General "may refuse an application [...] if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable". In my view the words "costs are otherwise recoverable" apply to the situation where the entirety of the costs of a person's criminal defence have been paid or will be paid from a fund of public money allocated to the Legal Aid Commission independently of the workings of the Costs in Criminal Cases Act." A grant of legal aid does not allow a legally assisted acquitted person to "recover" costs. To the contrary, it relieves the legally assisted person of incurring a personal costs liability because, no doubt, of the Commission's assessment that he or she is not in a position to be able to do so. As explained earlier in these reasons, a grant of legal aid does not result in any payment of money to a legally-assisted person. Rather, the grant of legal aid is typically to a law firm which provides its services for the legally assisted person's benefit. Reference to s 4(4) was, with respect, inapposite. 1. Our conclusion does not depend on construing s 42 of the LAC Act as applicable to criminal proceedings. His Honour held that it did not apply to criminal proceedings because it was directed towards a "court or tribunal which may order the payment of costs in proceedings" and the Costs Act vested the actual power to order the payment of costs in the Director-General, noting that the only power of a criminal trial court with respect to costs is to grant a certificate under the Costs Act. So much may be accepted for the purposes of argument. But his Honour's consideration of s 42 was not undertaken to support his construction of the Costs Act but, rather, to address an argument which had been advanced on behalf of the applicant and by way of response to Buddin J's reliance on s 42 in Carrick. 2. To the extent that his Honour sought to support his analysis by recourse to arguments based in public policy, including those highlighted at [109] above, again we disagree with his Honour's viewpoint. Even if it were ever appropriate for a judge to express the view that a statutory scheme "appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court" and to entail "a massive waste of public expenditure", the role of the Court in forming an opinion as to the matters referred to in s 3 of the Costs Act makes eminent common sense. The existence of a judicial opinion as to those matters supplies the gateway to an award of costs. That the ultimate decision as to whether a costs award is made is vested in the Director-General was and is a matter for the legislature. 3. Nor, with respect, is the view that what is entailed in a Costs Act exercise is simply "the movement of money between public accounts" either accurate or reflective of the fact that the Commission is constituted a corporation under s 6 of the LAC Act with a Board and Chief Executive Officer (ss 14-17), there is a separate Legal Aid Fund (s 62) with attendant statutory obligations in relation to payment into and out of that Fund (ss 63, 64) and that, by s 67 of the LAC Act, the Commission is required, on or before 31 May in each year, to prepare estimates of its income and expenditure for the following financial year. 4. Further, given the salutary effect of an adverse costs order referred to by McHugh J in Oshlack, the making of an award of costs following a successful application pursuant to the Costs Act achieves rather more than simply a movement of moneys or "churning of funds between public accounts", as his Honour described it. 5. For these reasons, we would uphold grounds 1 and 2 of the Notice of Appeal. 6. Success on grounds 1 and 2, however, will not ultimately avail the applicant unless he also succeeds on ground 3, to which we now turn. The factual question: appeal ground 3 1. Ground 3 is to the effect that Fagan J erred in finding that it was not unreasonable for the Crown to institute proceedings against the applicant. This ground challenges his Honour's finding that s 3(1)(a) of the Costs Act was not satisfied. The Crown Case 1. To address this ground it is necessary to briefly describe the Crown case and the evidence relied on by the Crown to incriminate the applicant. The deceased, Mr Clint Starkey, died from injuries he sustained while being beaten sometime after 10:00pm on 5 April 2017 at a service station at Peats Ridge near Gosford. The injuries were inflicted by four of the six co-accused, Beau McDonald, Jake McDonough, Guy Robertson and Adam Symons. McDonald, Robertson and Symons were all found guilty of murder. McDonough was found not guilty of murder but guilty of manslaughter. 2. The applicant drove Mr Starkey to the service station and was present while he was beaten but took no part in inflicting any blows on Mr Starkey. According to Fagan J, at the trial the Crown put its case to the jury on the basis that when the four assailants arrived at the service station the applicant joined in their joint criminal enterprise to assault Mr Starkey. 3. On this application the parties were content to adopt and rely upon a chronological summary prepared by the Crown of the events that led up to, and included the (deadly) assault. The summary reveals that there was an angry confrontation between one of the applicant's co-accused, Colin Crane, and Mr Starkey on the afternoon of 3 April 2017. The applicant, who was a friend of Mr Starkey, was present at the confrontation. In the hour or so after that confrontation there were numerous text messages exchanged between Colin Crane, his brother James Crane, Symons, Robertson and others (but not the applicant). Later that day, Colin Crane and five other men attended the address that Mr Starkey lived with his parents, looking for him, but Mr Starkey was not home. On the following day James Crane exchanged text messages with the applicant. 4. Just after 9:00pm on 5 April 2017, the applicant and Mr Starkey went to the Mangrove Mountain Memorial Club. At the Memorial Club there was a heated exchange between Colin Crane's partner, who worked there, and Mr Starkey during which Mr Starkey confirmed that he had threatened to "shoot up the house" that she lived in with her children. In the immediate aftermath of this exchange there were numerous calls and text messages between her, Colin Crane, James Crane and the applicant. At around 9:53pm, the applicant and Mr Starkey left the Memorial Club. Approximately a minute later, the applicant sent James Crane a text message stating "going to servo now with child". The applicant rang the attendant at the Caltex Service Station at Peats Ridge and asked her to keep the station open past 10.00pm as he was driving there. 5. Closed-Circuit Television ('CCTV') footage shows the applicant and Mr Starkey arriving at the service station between 9:59pm and 10:00pm. The Crown contended that the applicant then undertook various actions designed to extend the time he and Mr Starkey were at the service station to allow for the assailants to arrive. This included speaking to the attendant and loading a discarded air compressor into the applicant's vehicle. 6. At around 10:06pm, two vehicles, a red Commodore and silver sedan, entered the service station. Inside the Commodore was Symons and McDonald and inside the silver sedan was Robertson and McDonough. As the vehicles arrive, the applicant walked toward the sedan and then walked back and stood beside his car door for some time. At around 10:06pm, a person said to be McDonough emerges from the sedan. After waiting at the door of his vehicle, the applicant then drives slowly towards the southerly exit. As he nears the exist, the Commodore pulls up next to the passenger side of the applicant's vehicle. Both cars come to a stop. The Commodore was not blocking the exit of the applicant's vehicle. 7. The four assailants then exited the vehicles. At around 10:07pm, Symons pulled Mr Starkey from the applicant's car. All four assailants proceeded to kick Mr Starkey. The applicant watched the assault. The duration of the assault was 30 seconds. The four assailants then left. 8. At around 10:16pm, the applicant sent James Crane a text stating "[t]his car is fucked and I need a hand getting the fucken piece of crap out of the way now please". The Crown contended that this was a reference to the applicant seeking assistance in moving Mr Starkey. At around 10:34pm, two neighbours of James Crane who lived behind the service station assisted the applicant in placing Mr Starkey in the applicant's car. He was taken to a local hospital but later died. It could not be established that a particular act of a particular assailant was the cause of his death. 9. The day after the assault the applicant spoke to the police. Amongst other matters, he told them "[i]t was supposed to be a touch up but that was way more than a fucking touch up". The Trial Judge's Reasons 1. The reasoning of Fagan J that led to his Honour not being satisfied that if, before the proceedings were instituted, the prosecution had been in possession of evidence of all the relevant facts then it would not have been reasonable to institute the proceedings can be broken down into five steps. 2. First, his Honour concluded that "the Crown's evidence was capable of supporting an inference beyond reasonable doubt that, by the time the applicant arrived at the Peats Ridge service station with Mr Starkey as his passenger, he knew that some person or persons acting at the behest of the Crane brothers would attend there to assault Mr Starkey, to some level of severity": at [23]. In so finding, his Honour made particular reference to the admission made by the applicant to the police noted in [146]. On appeal, it was contended that there was insufficient evidence to support such a finding. We disagree. The combination of the applicant witnessing the confrontations involving Mr Starkey in the days preceding the beating, the text message and telephone call to the service station attendant noted in [141], his admission to the police and the coincidence in timing between the applicant driving Mr Starkey to the service station and the arrival of the assailants, overwhelmingly supports his Honour's finding. 3. Second, during the trial his Honour ruled that to establish the applicant's culpability the Crown had to prove that he was a party to a joint criminal enterprise with each of the four assailants who took part in the assaults including McDonald. This was found to be necessary so that the applicant could be criminally responsible for all of the assailants' acts without having to identify which act, or which of their acts, caused the death of Mr Starkey: at [25]. 4. Third, his Honour recounted the three aspects of the applicant's conduct at the service station undertaken in the presence of the four assailants from which the Crown contended the jury could have inferred the applicant manifested an adherence to the joint criminal enterprise, namely (a) upon the arrival of the assailants at the service station, the applicant delayed the departure of Mr Starkey by first walking towards sedan in which Robertson and McDonough were travelling and then standing by the driver's door of the applicant's car; (b) stopping his vehicle carrying Mr Starkey when the Commodore drove along the passenger side of the vehicle; and (c) informing Robertson and/or McDonough, when they approached his driver's side door, that his passenger was Starkey: at [26]. 5. Fourth, in light of the ruling noted above (at [149]), his Honour noted that it was necessary that that those acts manifest an agreement between the applicant and Mr McDonald which in turn was premised on it being proven that the applicant was aware of McDonald's presence: at [27]. His Honour identified three matters as supporting proof of that knowledge being the first two matters noted in [150] which were said to have given the applicant the opportunity to observe McDonald in the Commodore. The third matter was the opportunity the applicant had to observe McDonald when he alighted from the Commodore and followed Symons towards where Mr Starkey was seated in the applicant's car: at [32]. 6. Fifth, his Honour concluded that it was open to the jury to make findings consistent with the third and fourth steps: at [33]. His Honour said it was also open to the jury to conclude that, during the beating, the applicant was "ready and willing to assist" the assailants and that his stopping the vehicle when the Commodore pulled up next to it was act undertaken "in furtherance of the [joint criminal] enterprise": at [34]. The Applicant's Criticisms 1. We have already noted and rejected the applicant's attack on the first step in this reasoning. The applicant also attacked the third and fourth step. It was contended that the jury could never have concluded that conduct (a) and (b) specified in [150] were intended to assist in the assault on Mr Starkey and that it was completely speculative that the conduct outlined in (c) occurred. It was also submitted that, a conclusion that the applicant could have seen McDonald before the attack, "depended on imponderables" such as the level of tinting on the Commodore and the whether the street lighting could have provided sufficient illumination. 2. These points should not be accepted for two related reasons. 3. First, insofar as these contentions concern whether the evidence permitted the jury to find that the applicant entered into a joint criminal enterprise with Mr McDonald they are premised on the ruling that constituted the second step being a matter that the prosecution should have been aware of from the time of the institution of the proceedings. 4. The institution of the proceedings occurred at the time of the applicant's arrest (Allerton at 557). It follows that the test posed by s 3(1)(a) of the Costs Act requires a consideration of the position at that time in light of what was known and became known about the facts of the case. In the costs judgment, Fagan J noted the occasion for the ruling described in [149] first arose from a submission made by counsel for the applicant to the jury which prompted the Crown to seek a direction that it was not necessary for the jury to be satisfied that the applicant was aware of McDonald's presence: at [30]. His Honour noted that the Crown's submission in support of its position was that "it was not necessary for them to be satisfied that Mr Rodden knew how many assailants were present, or, in particular, that he knew there was a passenger in Symons' car who was part of the enterprise that he was joining": at [28]. During the hearing of the appeal, Senior Counsel for the applicant, Mr Stratton SC, rightly accepted that that was not an unreasonable submission. We consider that it further follows that it was not unreasonable for the proceedings to be instituted on the basis that it was not necessary to prove the applicant was aware of the presence of McDonald at the service station prior to the assault commencing. 5. In any event, like Fagan J, our review of the CCTV footage reveals that it was well open to the jury to conclude that, prior to the assault commencing, the applicant was aware of the presence of McDonald amongst the assailants. At the time the Commodore arrives the applicant appears to be looking straight at the passenger side. Also, there was sufficient time for the applicant to see Mr McDonald from the time he exited the Commodore until he assisted in dragging Mr Starkey from the car. 6. Second, like the primary judge, we have had the benefit of reviewing the CCTV footage from the service station. When that evidence is taken with the matters noted in [148], it leaves us satisfied that it was well open the jury to find that at least the conduct described in [150](a) and (b) occurred and that it manifests in the applicant joining in the relevant agreement with the assailants. 7. No error has been demonstrated in relation to Fagan J's findings concerning section 3(1)(a) of the Costs Act. Orders 1. The orders of the Court are: 1. Grant leave to the Legal Aid Commission of New South Wales to intervene. 2. Grant the applicant leave to appeal. 3. Dismiss the appeal. ********** Amendments 20 March 2024 - Revisions made as follows: [33] within quote "... Suitor's Fund Act 1951 (NSW) ..." changed to "... Suitors' Fund Act 1951 (NSW) ..." [70] second sentence, "... refusal by a District Court judge to decline to grant ..." changed to "... refusal by a District Court judge to grant .." [92] second sentence, within quote "in the proceedings ... on indictment" changed to "in the proceedings upon indictment" [100] within quote "... made findings with no evidence and or alternatively ..." changed to "... made findings with no evidence [and/or] alternatively ..." [138] third sentence, "... Jake McDonough-Budin ..." changed to "... Jake McDonough ..." 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: 20 March 2024