Supreme Court New South Wales Medium Neutral Citation: Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348 Hearing dates: 11 March 2015 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) A declaration that the decision made by the first defendant and communicated to the plaintiff by letter dated 4 June 2014 deferring consideration of the remainder of the application for costs under the Costs in Criminal Cases Act 1967 on the basis of ascertaining an amount that "may be received" is wrong in law. (2) An order in the nature of certiorari quashing the decision described in order (1) herein; (3) An order in nature of mandamus directing that the first defendant consider the remainder of the plaintiff's application according to law; (4) The defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – JUDICIAL REVIEW – decision of Secretary under Costs in Criminal Proceedings Act 1967 – deferral under s 4(5) thereof to see what claimant "may receive" – no relevant criteria for deferral – decision quashed. Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Berry v British Transport Commission [1962] QB 306 Cinema Plus Ltd (Administrators Appointed) & ANZ Banking Group Limited [2000] NSWCA 195; (2000) 49 NSWLR 513 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Armstrong [1972] 1 NSWLR 559 R v Turner [1980] 1 NSWLR 19 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCCA 8; (1999) 46 NSWLR 55; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; Einfield City Corp v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Category: Principal judgment Parties: Vincent Stanizzo (Plaintiff) The Secretary of the Department of Justice of New South Wales (First Defendant) The Attorney General for the State of New South Wales (Second Defendant) Representation: Counsel: M A Robinson & M K Rollinson (Plaintiff) Dr C Mantziaris (Second Defendant) Solicitors: O Nikolovska - Justice Lawyers (Plaintiff) L Armstrong - Crown Solicitor's Office (First & Second Defendants) File Number(s): 2014/235365 Judgment 1. HIS HONOUR: By summons filed 11 August 2014 the plaintiff, Vincent Stanizzo, seeks judicial review of the decision of the defendant refusing or delaying, wholly or in part, an application for the payment of costs under the Costs in Criminal Cases Act 1967 (the Act). The summons seeks a declaration and orders in the nature of certiorari, mandamus and any other order that the Court sees fit. 2. The facts are, relevantly, uncontentious. On 4 November 2010, the plaintiff was arrested and charged with 11 counts relating to alleged sexual assaults and intimidation on a victim and four counts of intimidation on another victim. 3. After the arrest and charging to which reference has already been made, investigation was carried out by one or more detectives, the name of the major investigating officer has been provided to the Court. The arrest was, it seems, only on the basis of the victims' statements. 4. Proceedings commenced before the District Court of New South Wales during which one of the victims, the alleged victim of the sexual assault and intimidation, was cross-examined. Following the cross-examination, the office of Director of Public Prosecutions, of its own initiative, informed the District Court that, in the interest of justice, the charges should be withdrawn and the jury discharged. The jury was discharged by the learned trial Judge. 5. An application for costs under the Act was made and, on 19 August 2013, the learned trial Judge issued a certificate under the Act. 6. Most of the defence costs were funded from the finances of the plaintiff, who has been out of work since the date of his arrest on 4 November 2010. 7. The defendant has made some interim payments in relation to the amount of costs. 8. The relevant correspondence between the plaintiff (or on his behalf) and the defendant (or persons on the defendant's behalf) has been tendered to the Court. Included in that correspondence is a document addressed to the plaintiff's solicitors on the letterhead of the New South Wales Attorney General and Justice and dated 19 November 2013 seeking particulars of the request made for payment under the Costs in Criminal Cases Act 1967. 9. On or about 18 November 2013, by facsimile sent at or about 8am, the plaintiff's solicitors sent to the Director of Justice Legal, on behalf of the defendant, a statutory declaration of the solicitor acting on behalf of the plaintiff dated 15 November 2013. The total of the debts and out of pocket expenses owing as at 15 November 2013, amounted to a total sum of $606,475.35. Added to that amount was the amount itemised in a supplementary tax invoice relating to an appeal to the Court of Criminal Appeal, being an amount of $10,500.00. 10. On 25 November 2013, the plaintiff's solicitors sent a submission to the Director of Justice Legal of some 10 pages explaining the basis upon which the legal costs were incurred and the reasons, in the submission of the plaintiff, that the Director General ought to grant the application. 11. On 4 February 2014, the plaintiff, again through his solicitor, wrote to the Director of Justice Legal stressing the urgency of the application and informing the Director that the plaintiff was in default of his mortgage payments to the bank; was paying interest on the outstanding amount in excess of $2,000.00 per month; was at risk of having his house sold by the bank at great financial loss; was without funds and was in the process of applying for deferrals of filing fees in relation to Court proceedings; had a number of other outstanding bills that had not been and were unable to be paid; had no monies to buy basic necessities and food; and was being pressed for payment of sums by a large number of creditors. The letter continued that in the absence of a payment from the Department, court proceedings would issue in relation to these matters. 12. On 7 February 2014, the senior solicitor for the Crown Solicitor wrote seeking further particulars and evidence of fee agreements or the like. On 11 February 2014, the request was the subject of a response and further supplementary submissions as to the underlying task in the litigation in which the plaintiff was involved, being to unravel a conspiracy against the plaintiff between the two complainants ("both of whom had an axe to grind against" the plaintiff). 13. The response of 11 February 2014 consisted of a number of pages, including annexures. On 10 March 2014, the plaintiff's solicitor wrote again reiterating her client's financially dire circumstances. 14. On 18 March 2014, the Department wrote to the solicitor for the plaintiff advising that it will forward an interim payment in the sum of $152,460.00 within 7 days of the date of the letter. The letter referred to the powers of the Secretary and recited ss 4(3), 4(4) and 4(5) of the Act and otherwise referred to the manner in which the interim costs had been calculated and the basis upon which they were being paid. 15. It is appropriate to recite an extract of that letter under those headings, in the following terms: "Calculation of the Costs After careful consideration of your application, the Secretary was unable to make a complete determination. A significant impost was the failure by Justice Lawyers and Mr Waterstreet to provide itemised invoices that comply with clause 111B of the Legal Profession Regulation 2005 to allow costs to be properly moderated. In addition the secretary determined that the following three categories of costs could not be paid as part of Mr Stanizzo's claim: ● Costs of the Court of Criminal Appeal Proceedings ● Costs of the Supreme Court Proceedings; and ● Costs relating to the Bardarne charges The interim payment that has been approved relates to the listed hearing dates and mentions as confirmed by the Court totalling 23 days. An additional 10 days was allowed for preparation time for both solicitor and Junior Counsel. Costs Costs in this matter were moderated in accordance with the Attorney General's Guidelines which require claims to be moderated as if they were a party/party assessment of costs under the Legal Profession Act. Solicitor's fees are allowed at $264.00 hourly (inclusive of GST). Junior counsel's chamber work is allowed at $264 hourly (inclusive of GST), to a daily maximum of $1980.00 (inclusive of GST). Junior counsel's hearing brief is allowed at $1,980 daily (inclusive of GST), including all attendances on the day of the hearing. Accordingly Justice Lawyers costs have been approved at 33 days x $2,640.00 per day, which equals $87,120.00 (inclusive of GST). Mr Charles Waterstreet's costs were approved at 33 days x $1,980.00 per day, which equals $65,340.00 (inclusive of GST). The total amount for the claim until further and more accurate information can be provided is $152,460.00 inclusive of GST. You are invited to provide additional information in proper form in support of your application within two weeks of the date of this letter if you would like your application to be considered further. As previously requested, itemised invoices that comply with 111B of the Legal Profession Regulation 2005 are necessary, including timesheets for all costs claimed." 1. On 20 March 2014, the plaintiff's solicitor responded to the last mentioned letter and recited the history, or some of it, of the matter. On 4 April 2014, the Department affirmed its earlier decision and the comments in its letter of 18 March, referred to an interim payment of $155,460.00 (a sum greater than that advised in the letter of 18 March 2014) that will be sent directly to Mr Stanizzo at his home and advised Mr Stanizzo's solicitor that "the Secretary has exercised his discretion under s 4(5) of the Act to defer final consideration of the application until he is satisfied of the amount appropriate for payment under the Act". 2. The letter of 4 April 2014, sent and signed on behalf of the Secretary of the Department, also asked for comments on how the Secretary should approach any further consideration of the application in light of the statements of claim in which the plaintiff was suing various defendants seeking damages for malicious prosecution. 3. On 7 April 2014, the plaintiff's solicitor replied to the letter of 4 April 2014. A number of submissions were made and an undertaking provided "to refund any monies" should the plaintiff succeed in the proceedings to which the Secretary referred. Further correspondence ensued. 4. On 4 June 2014, the Secretary of the Department wrote to the plaintiff, Mr Stanizzo. This is the decision communicated to the plaintiff that is subject to the challenge in the summons. It is appropriate for me to repeat the letter. It is addressed directly to the plaintiff, not to his solicitor. It is in the following terms: "I refer to your application for payment under section 4(1) of the Costs in Criminal Cases Act 1967 for payment of costs you incurred in defending criminal charges, totalling $605,366.99 including GST. On 14 March 2014 I authorised payment of your application in the amount of $152,460 including GST. Subsequent to that payment you have advised the Department of Police and Justice that you have commenced or will commence, these civil proceedings: against Mr Mohammad Badarne seeking damages for the torts of malicious prosecution and injurious falsehood; similar litigation against Ms Vivien Sgangarella-Valvano; and against your prior legal representatives, Henniker's Solicitors and Ms Carolyn Davenport SC. With respect to the unpaid portion of your application I advise that under section 4(5) of the Act I defer consideration of the application until the conclusion of these civil proceedings as I consider it necessary to do so in order that I may ascertain under section 4(3) of the Act any amounts for the costs of defending the criminal charges you may receive from the defendants. With respect to the amount of $152,640 you have already received in payment of your application, I advise that under section 5(1) of the Act I exercise my right of subrogation over your civil proceedings seeking damages for malicious prosecution and injurious falsehood. I therefore require you, prior to you compromising your proceedings, to receive my consent to the compromise; or, prior to you receiving any damages orders after a contested hearing to be paid to you, that you direct the defendants to first pay me the sum of $152,640 plus interest prior to them paying you damages." 1. On 21 July 2014, the plaintiff, through his solicitor, objected to the decision. On 23 July 2014, the Department promised a reply within 14 days. No reply was received. 2. On 11 August 2014, the plaintiff issued the summons in these proceedings. Legislation 1. The Costs in Criminal Cases Act 1967 has some 11 provisions, two of which are saving and transitional provisions. The long title of the legislation is "An Act relating to costs in criminal cases; to amend the Justices Act 1902 as amended by subsequent Acts; and for purposes connected therewith." 1. Section 2 of the Act provides, relevantly, for the Court or a judge to be able to grant a certificate. This is the grant of an exercise of discretion (R v Armstrong [1972] 1 NSWLR 559; R v Turner [1980] 1 NSWLR 19). 2. The certificate, if issued, must specify that, in the opinion of the judge issuing it, it would not have been reasonable to institute the proceeding, if the prosecution were to have been in possession of evidence of all of the relevant facts and that any act or omission of the defendant that contributed to costs, or might have so contributed, was reasonable in the circumstances: s 3 of the Act. 3. By s 4 of the Act, a person to whom a certificate has been granted under the Act may apply to the Director General for payment of costs out of the Consolidated Fund. The Director General is then required to form an opinion, in the circumstances of the case, that the making of the payment to the applicant is justified and, having done so, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in s 4(3) of the Act. 4. The maximum amount is the amount which, in the opinion of the Director General, would reasonably have been incurred in costs in the proceedings, reduced by any amount that, again in the opinion of the Director General, the applicant for costs has received or is entitled to receive, or, would, if the applicant had exhausted all relevant rights of action and other legal remedies available, be entitled to receive. 5. It is appropriate for the Court to recite the provisions of s 4 and s 5, the latter of which grants to the Director General the right of subrogation in relation to any rights or remedies of an applicant for costs to whom payment has been made. Those provisions are in the following terms: "4 Payment of costs (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. 5 Director-General subrogated to rights of applicant (1) Where payment is made to any person pursuant to section 4, the Director-General shall be subrogated, to the extent of the payment, to all the rights and remedies of that person, other than those provided under this Act, to recover costs incurred in the proceedings in respect of which application for the payment was made. (2) Any moneys recovered by the Director-General pursuant to subsection (1) shall be paid to the Consolidated Fund." Submissions of the parties and consideration 1. The plaintiff submits that the decision of the Secretary, communicated in the letter of 4 June 2014, recited above, was not a decision available to the Secretary, in that it misunderstood the criteria or test that was required to be applied in his decision and deferred the decision in relation to the payment for purposes that are extraneous to the Act. 2. The plaintiff submits that the Secretary's duty under the section is to form an opinion as to whether the making of a payment is justified, as the first step in the exercise of the Secretary's discretion. This submission is undeniably correct. 3. Moreover, on the evidence before the Court, the Secretary has already formed such an opinion and has already made payments. As a consequence the Secretary has formed the opinion (and must necessarily have formed the opinion) that the making of a payment is justified. 4. The formation of that opinion is a jurisdictional fact, being a criterion (in this case an opinion) that must be satisfied in order to enliven the exercise of the statutory power reposed in the decision maker: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [37] and following; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; Enfield City Corp v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135. 5. The second matter that requires determination is that contained in the latter part of s 4(2) of the Act, being the determination of "the amount of costs that should be paid to the applicant". 6. The maximum amount is defined by s 4(3), 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 any amounts that, in the opinion of the Director General, the applicant has received or is entitled to receive or would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive". 7. The Secretary (for relevant purposes, being the Director-General to which the Act refers) is not suggesting that the plaintiff has not exhausted all relevant rights of action and other legal remedies available to him. As a consequence, the only issue that requires determination is what would reasonably have been incurred and what the plaintiff has received or is entitled to receive. 8. The Secretary deferred consideration of the application so as to "ascertain… any amounts… [the plaintiff] … may receive from the defendants" in the other proceedings. 9. The plaintiff submits that a deferral for that reason is not a deferral permitted by s 4(5) of the Act. 10. The Secretary is entitled to defer consideration of an application (and a part of an application) and the Secretary's powers include the amendment of an earlier determination (see Interpretation Act 1987). 11. The Secretary is aware that the plaintiff has received no amount on account of costs, except that amount already paid by the Secretary on behalf of the Department. That is an amount already ascertained. 12. Otherwise, the discretion to defer, contained in s 4(5) of the Act, is a discretion to defer consideration of an application "to enable [the Secretary] to ascertain any amount referred to in subsection (3)". 13. In the circumstances of this case and given that the Secretary does not suggest that there are proceedings that could have been taken and were not (or rights of action or other legal remedies that have not been exhausted), there are no proceedings that the Secretary must consider, or no entitlement that the Secretary must consider, in relation to proceedings that may have been taken, if the plaintiff had exhausted all relevant rights of action. 14. The plaintiff submits that the determination by the Secretary of that which the plaintiff is "entitled to receive" must be a practical assessment. As I understand the submission, this means no more than that the Secretary must not have regard to fanciful considerations or unrealistic avenues. I accept this submission. 15. The nice question arises as to whether a realistic "entitlement" is one that the plaintiff would be "entitled to receive" but unable to enforce, because, as one example, of the lack of assets of the defendant against whom such an action might be taken. Given the purposes of the legislation and the subrogation of the Secretary in any civil proceedings, the better construction is that the words "or is entitled to receive" refers to an entitlement from as yet completed proceedings that are likely to result in the payment of an amount that will in whole, or in part, see the applicant for a payment recover some or all of the costs expended and to which the certificate relates. I will deal with this analysis later in these reasons. 16. The second defendant resists the plaintiff's submissions, firstly, on the basis that there was no statutory duty reposed in the Secretary to provide reasons for decision. As I understand the submissions of the plaintiff, there is no suggestion that there was a statutory duty to provide reasons. Reasons were provided. Unfortunately for the second defendant, what is sought to be done by it in defending the Secretary's decision and resisting orders is to rely upon reasons that are not part of the reasons provided by the Secretary in reaching the decision that is sought to be impugned. 17. The principles of statutory construction are well known. Their application can sometimes be difficult. One must read the words to be construed in the context of the statute as a whole, discerning the purpose of the statute and the purpose of the terms from the words used and interpreting the statute to achieve, where possible, that purpose and to achieve harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. 18. As is clear from the long title, the purpose of the Act is to allow for the State to pay costs in criminal proceedings in certain circumstances. The first statutory precondition is the grant of a certificate by a judge: see [23] and [24] above. 19. Assuming a person to whom or in respect of whom a certificate is granted then applies for costs, the Director General is required to form an opinion, firstly, that a payment is justified (see [25] above) and, secondly, to determine the amount of costs that should be paid. 20. The determination of what amount should be paid is calculated by determining that which was reasonably incurred. This has been done in this case by defining a scale of fees to be utilised in relation to the work performed. 21. Once the Director General has (as is the case here; see [31] above) formed an opinion that a payment is justified, the Director General must determine (or, in this case, calculate) that which has reasonably been incurred. The word "may" in s 4(2) is not the conferral of a discretion, notwithstanding the provisions of the Interpretation Act, because once an opinion is formed that the payment is justified, there could be no residual discretion not to pay what is otherwise justified: Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134 ("Finance Facilities"), per Windeyer J, with whom Barwick CJ agreed, and at 138, per Owen J. At 134 of the report, Windeyer J said: "While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given: it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. However, that general proposition is irrelevant in this case. Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled? … If the Commissioner, having considered the matter, is satisfied of facts out of which the power to allow a rebate arises, he cannot nevertheless refuse to allow it." 1. In Finance Facilities at 138 Owen J said: "Put shortly, the appellant's argument is that if the Commissioner is satisfied that, having regard to all the circumstances, it would be reasonable to allow a rebate, it cannot be that in the exercise of some further discretion he could refuse to allow that which he is satisfied it would be reasonable to allow, and if he is bound to exercise his power to allow a rebate once par. (c) is satisfied, he must equally be bound to exercise it if the requirements of pars. (a) or (b) are fulfilled. I have come to the conclusion that this submission should be upheld." 1. Under the provisions of s 4(2) of the Act, the determination of that which is to be paid cannot exceed the maximum defined in s 4(3) of the Act. I will deal with the detail of subsection 4(3) last in this analysis. 2. The effect of s 4(4) of the Act is irrelevant to the issues in this case, except to the extent that its terms shed light on the proper interpretation of s 4(3) of the Act. By operation of s 4(4) of the Act, the legislature has permitted the Director General to refuse an application for payment in two circumstances. 3. The first circumstance is if the Director General is of the opinion that a payment is not justified. This is the converse of the opinion required by s 4(2) of the Act (i.e. that a payment is justified). 4. The second circumstance governing a refusal under s 4(4) of the Act is "(without limitation) if costs are otherwise recoverable". In other words, the scheme of the Act is to establish, in the first instance, two mutually exclusive criteria. Either a payment is justified or it is not justified. 5. If in the opinion of the Director General, a payment were not justified, then no payment may be made. The only other circumstance in which no payment may be made is if the costs claimed are "otherwise recoverable". 6. The word "recover" or "recoverable" has had different uses. It can be broad enough to include that which can be the subject of legal claim (not necessarily received), but the modern view seems to reflect the notion that it refers to an amount able to be recovered or received in one's hands. In Cinema Plus Ltd (Administrators Appointed) & v ANZ Banking Group Limited [2000] NSWCA 195; (2000) 49 NSWLR 513 at [121], Sheller JA, with whom Spigelman CJ and Giles JA agreed, said: "'Recover' means to get back into one's possession something lost or taken away." 1. In other words, an application may be refused if a payment to the applicant is unjustified or the amount of the costs is able to be recovered by the applicant. Otherwise, a payment is justified and, subject to the calculation of reasonable costs and the maximum amount, must be paid. 2. The scheme serves the purpose of compensating an accused for reasonable costs incurred as a result of a criminal prosecution that, if all the relevant facts were known, would not have been taken. 3. It is necessary in that light to construe s 4(3) of the Act. The first aspect is the formation of the opinion as to what costs have been reasonably incurred. As already stated, at least in part that has been done by fixing a reasonable rate and applying it to the work reasonably undertaken. It would be difficult to find a better way to form that opinion. 4. The reasonably incurred costs are then reduced by those amounts described in paragraphs 4(3)(a) and 4(3)(b) of the Act. Each paragraph deals with a different circumstance. 5. Nevertheless each refers to amounts received or entitled to be received. If s 4(3) of the Act referred to a theoretical entitlement that was practically incapable of producing the receipt of money, very different words could have been utilised. 6. Moreover, the subtraction from the payment of such a theoretical, unrealisable entitlement would create a tension with s 4(4) of the Act and seem to be inconsistent with the purpose of the scheme. That which is deducted is that which is able to be or has been recovered or received. 7. The foregoing analysis renders the operation of the scheme consistent and harmonious. The decision maker first forms an opinion as to whether any payment to an applicant is justified or not justified. Secondly, assuming a payment is justified, the decision maker determines the costs reasonably incurred. 8. Then the decision maker reduces that payment by any amount received or, on a practical basis, entitled to be received (or that would have been if all legal remedies had been pursued and exhausted). 9. Lastly, where the amount received, or entitled to be received, equals or exceeds the reasonable costs, then the second limb of s 4(4) of the Act operates and the decision maker refuses the application or, under s 5 of the Act, obtains any amount already paid. 10. To deal with the construction otherwise would either leave a hiatus or have the effect that if an applicant had concluded all possible legal remedies and received an amount less than was theoretically possible, such an applicant would receive more than if the applicant had not concluded all remedies. 11. Ultimately, the question before the Court is a relatively simple one. Notwithstanding the submission of the second defendant that there was not an itemised set of costs for one of the counsel and in relation to some work of the solicitor, the itemised costs were in fact received by the first defendant before the decision of 18 March 2014 and before the decision that is sought to be impugned of June 2014 (see Exhibit 1). 12. The ultimate question is whether the deferral, for the reason given, is a deferral that is permitted under the Act, in the circumstances of these proceedings. 13. The Secretary was entitled to defer proceedings to ascertain the amount that the plaintiff is entitled to receive by way of the proceedings that had been or were about to be commenced. The Secretary could have, but did not, defer consideration of the application (or the remainder of it) if the Secretary considered it necessary to do so to enable the ascertainment of the amount the plaintiff was entitled to receive, as that matter has been construed in these reasons. 14. That is not what the Secretary did. He did not defer consideration of the application for the remainder of the monies in order to ascertain that to which the plaintiff was entitled. He deferred it to ascertain that which the plaintiff "may receive". 15. If the practical application to which I have referred is correct, the amount to be received as a consequence of an entitlement is a matter, which the Secretary is entitled to consider under s 4(3)(b) of the Act. If the Secretary were to have deferred the consideration of the remainder of the application in order to ascertain that which, as a matter of practicability, the plaintiff was entitled to receive in terms of s 4(3)(a) of the Act, being the amount ordered by the Court and able to be paid by a defendant in the proceedings, the Secretary could have deferred for that purpose. 16. It seems to me, however, that the Secretary did not defer for either of those purposes and misunderstood the test that the Secretary was to apply in order to exercise his discretion to defer. In that regard, there is error of law and jurisdictional error and appropriate orders should issue. 17. If, contrary to the foregoing analysis, the words of s 4(3) of the Act do not allow the Secretary, in determining the amount that the plaintiff "is entitled to receive", to have regard to that which is able to be enforced practically (i.e. that which the putative defendant is able to pay), then, even more so, has the Secretary utilised the wrong test and taken account of an irrelevant consideration. 18. If the words "entitled to receive" were construed as a practical entitlement at law without regard to the ability of putative or actual defendants to pay such an amount, then the Secretary cannot have regard to the amount the plaintiff "may receive" and a deferral to ascertain that amount is not permitted by s 4(5) of the Act. 19. The other difficulty is that the proceedings on the basis of which the Secretary deferred the decision were for malicious prosecution. Damages for malicious prosecution (assuming one satisfies the test that some damage occurred) are at large and, at least on one view, do not compensate the costs incurred in the impugned proceedings: see Berry v British Transport Commission [1962] QB 306 at 328. 20. Some attention, albeit in passing, was paid by the second defendant to the exercise of the right of subrogation by the Secretary. That attention was misplaced. As I understand the summons and that which is pursued by the plaintiff, the subrogation is not challenged. 21. Moreover, on a proper construction of the statute, the subrogation cannot be challenged. The Secretary does not "exercise a right to subrogation". Section 5(1) provides that the Secretary shall be subrogated. The subrogation operates by force of the statute and is not a right "to be exercised". Indeed, it is the right of subrogation that protects the Secretary from a miscalculation of any entitlement to receive, at least up to the amount received or the amount paid, whichever is the lesser. 22. The Court makes the following orders and declarations: 1. A declaration that the decision made by the first defendant and communicated to the plaintiff by letter dated 4 June 2014 deferring consideration of the remainder of the application for costs under the Costs in Criminal Cases Act 1967 on the basis of ascertaining an amount that "may be received" is wrong in law. 2. An order in the nature of certiorari quashing the decision described in order (1) herein; 3. An order in nature of mandamus directing that the first defendant consider the remainder of the plaintiff's application according to law; 4. The defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed. ********** Amendments 31 March 2016 - Solicitors representation added/corrected 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: 31 March 2016