Supreme Court New South Wales Medium Neutral Citation: Killick v The Commissioner of Police New South Wales (No 2) [2014] NSWSC 1050 Hearing dates: On the papers Decision date: 05 August 2014 Before: Simpson J Decision: Application dismissed. Catchwords: COSTS - s 86(1) Service and Execution of Process Act 1992 (Cth) - review of decision of magistrate that warrant issued pursuant to s 189 Corrective Services Act 1988 (Qld) was valid - warrant directed the apprehension of the applicant and conveyance to Queensland prison - warrant valid - respondent sought costs - whether review ought to be categorised as criminal or civil (administrative) - s 98 Civil Procedure Act 2005 (NSW) - the whole of the proceedings relating to execution of the extradition warrant can properly be characterised as a "criminal proceeding" as defined in s 3(c) of the Service and Execution of Process Act 1992 - no presumption that costs follow the event - no statutory authority for award of costs in a criminal related proceeding - discretion conferred in relation to award of costs in civil proceedings to be exercised in favour of applicant - each party to pay own costs - application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Corrective Services Act 1988 (Qld) Costs in Criminal Cases Act 1967 (NSW) Criminal Procedure Act 1986 (NSW) Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Butler v Commissioner of Police (NSWSC, Hidden J, 24 November 1997, unreported) Cooper v Nicholson [2000] VSC 8 D'Adamo v Marchesi [2007] WASC 282; 215 FLR 187 Killick v The Commissioner of Police New South Wales [2014] NSWSC 781 O'Sullivan v Verebes (1996) 135 FLR 94 Rose v Chief Commissioner of Police [2000] VSC 281 Category: Costs Parties: John Reginald Killick (Applicant) The Commissioner of Police New South Wales (Respondent) Representation: Counsel: J Crowley (Applicant) S Callan (Respondent) Solicitors: Searle & Associates Lawyers (Applicant) I V Knight, Crown Solicitor (Respondent) File Number(s): 2014/131829 Judgment 1On 1 May 2014 the applicant, John Killick, commenced proceedings in the Common Law Division of this Court seeking review of a decision of a magistrate. That decision was to uphold the validity of a warrant of extradition issued under the Corrective Services Act 1988 (Qld). Review of such an order is permitted by s 86(1) of the Service and Execution of Process Act 1992 (Cth) ("the SEP Act"). On 12 June 2014 I upheld the magistrate's decision and made consequential orders: Killick v The Commissioner of Police New South Wales [2014] NSWSC 781. 2The respondent (the NSW Commissioner of Police) now seeks an order that the applicant pay his costs of the review proceedings. Such an order is resisted on behalf of the applicant. 3As it developed, the argument between the parties centred largely on whether the review proceeding ought to be categorised as criminal or civil (administrative). If civil, then the costs application is to be determined in accordance with s 98 of the Civil Procedure Act 2005 (NSW), together with Pt 42.1 and 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). If criminal, the position is less clear. 4Section 98 of the Civil Procedure Act relevantly provides: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. ..." 5Part 42.1 of UCPR provides: "42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." Part 42.20 provides: "42.20 Dismissal of proceedings etc (1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. (2) ..." 6Although the orders made were not, in terms, for "dismissal" of the proceedings, that was the substance of the orders made. 7Both parties recognised that the initial proceeding before the magistrate, and the review application, had a clear connection with criminal proceedings. However, on behalf of the respondent, it was submitted that the application should be construed as a civil (administrative) proceeding. Counsel who represented the applicant stopped short of contending that the review application was a criminal proceeding. However, he pointed to the close relationship of the issue of the extradition warrant with criminal proceedings and argued that that relationship was sufficient to warrant the exercise of discretion clearly available under the Civil Procedure Rules. 8Some support for the applicant's position is to be found in s 3 of the SEP Act which defines "criminal proceeding" as: "(a) a prosecution for an offence; or (b) a procedure, other than a prosecution, that, under a law of a State, may be used: (i) to determine liability for an offence; or (ii) to impose a penalty for an offence; or (c) a proceeding that is related to or associated with a prosecution for an offence or a procedure mentioned in paragraph (b); but does not include: (d) a claim for compensation; or (e) a proceeding under proceeds of crime legislation." 9Counsel for the respondent identified a series of decisions in which costs orders have been awarded with respect to an application under the SEP Act. They were: * Cooper v Nicholson [2000] VSC 8; * Rose v Chief Commissioner of Police [2000] VSC 281; * O'Sullivan v Verebes (1996) 135 FLR 94. 10Counsel also referred to Butler v Commissioner of Police (NSWSC, Hidden J, 24 November 1997, unreported), in which an indication was given that the parties would be heard on the question of costs. 11As counsel for the applicant pointed out, in none of these decisions was there a live issue about the award of costs, and the orders were not the subject of detailed judicial reasoning. 12On the other hand, in D'Adamo v Marchesi [2007] WASC 282; 215 FLR 187, the issue was raised and debated, and Hasluck J concluded that a review application came within the definition of "criminal proceeding" for the purpose of the SEP Act. I respectfully agree that, having regard to the breadth of the definition in sub-para (c) of the definition, the whole of the proceedings related to the execution of the extradition warrant can properly be characterised as criminal. While that gives some assistance to the applicant, the assistance it gives is limited. That is because the SEP Act does not contain any relevant substantive provisions concerning the award of costs in criminal cases. 13The award of costs in criminal cases in this State is the subject of a number of statutory provisions. These include the Criminal Procedure Act 1986 (NSW), and the Costs in Criminal Cases Act 1967 (NSW). Neither contains any provision that is directly relevant. 14I have concluded it is appropriate to regard the review application as related to a criminal proceeding. There is no presumption, as is to be found in UCPR 42.1 that costs follow the event. There is no statutory authority for the award of costs in a criminal related proceeding. It is appropriate to exercise the discretion conferred in relation to the award of costs in civil proceedings in favour of the applicant. 15In my opinion, the appropriate outcome is that each party pay his own costs. Accordingly, I dismiss the application made by the respondent. ********** 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: 05 August 2014