Application of Neil Harold Pearson [1999] NSWSC 611

New South Wales Supreme Court CITATION : Application of Neil Harold Pearson [1999] NSWSC 611 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70016/98 HEARING DATE(S) : 26/3/99 JUDGMENT DATE : 23 June 1999

PARTIES : Neil Harold Pearson JUDGMENT OF : Wood CJatCL

I. Bourke for Applicant COUNSEL : P. Roberts for Australian Government Solicitor N. Abadee for Attorney General of NSW R. J. Benson for Applicant SOLICITORS : P. Swinton (Australian Government Solicitor) Crown Solicitors (NSW) CATCHWORDS : DECISION : Order - Chief Executive Officer of Customs to pay the Applicant's costs of the preliminary objection to jurisdiction

1 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70016/98 WOOD CJ at CL

WEDNESDAY 23 JUNE 1999 APPLICATION OF NEIL HAROLD PEARSON

Re: COSTS 1 HIS HONOUR: Following my determination that I had jurisdiction to entertain the application which was brought under S 474D of the Crimes Act 1900, a question arises as to the costs occasioned in relation to the objections that were raised in that regard. 2 The primary objection to jurisdiction was taken by the Australian Government Solicitor on behalf of the Chief Executive Officer of Customs ("Customs"), who prosecuted Mr Pearson and Neil Pearson & Company Pty Limited. Following the service of notices under S 78B of the Judiciary Act, the Attorney General for New South Wales ("The Attorney") intervened. There was no other intervention. I adopted the course of listing the matter for oral argument, because of the importance of the issues raised in the written submissions received, and its potential application to a range of similar prosecutions, brought under federal laws and determined, at first instance, either summarily in Local Courts, or upon indictment in the District Court or Supreme Court. 3 After handing down my decision, an order for costs in relation to the preliminary issue was sought by the applicants. 4 This application was pressed in reliance upon S 76 of the Supreme Court Act 1970, which relevantly provides: "76(1) (a) Costs shall be in the discretion of the Court, (b) the Court shall have full power to determine by whom and to what extent costs are to be paid, and (c) … (2) In subsection (1) the expression costs includes: (a) Costs of or incidental to proceedings in the Court, including the administration of estates and trusts, (b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and (c) …" 5 It was resisted by Customs which contended that I had no power to award costs for the reasons that: