Dempsey v Director of Public Prosecutions [2019] NSWCA 267

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dempsey v Director of Public Prosecutions [2019] NSWCA 267 Hearing dates: 11 October 2019 Date of orders: 06 November 2019 Decision date: 06 November 2019 Before: Meagher JA at [1]; White JA at [2]; Emmett AJA at [3] Decision: 1. Orders for costs made 26 April 2019 be set aside. 2. Matter be remitted to Scotting DCJ of the District Court for redetermination. Catchwords: COSTS – Order for payment of professional costs under Criminal Procedure Act 1986 (NSW), s 213 to be "just and reasonable" – Order for costs under Crimes (Appeal and Review) Act 2001 (NSW), s 28 to be "just"

PROCEDURAL FAIRNESS – Primary judge failed to inform applicant that summary nature of the proceedings and fact that a party is not entitled to recover all of its costs would be taken into account – Whether this constitutes denial of procedural fairness

JUDICIAL REVIEW – Whether exercise of discretion by primary judge to reduce costs by 30% constituted jurisdictional error – Whether any difference between "fair and reasonable" and "just and reasonable" – Whether primary judge addressed wrong question such that jurisdiction conferred by the provision was not properly exercised Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) District Court Act 1973 (NSW) Legal Profession Act 2004 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640 Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 Minister of Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Category: Principal judgment Parties: Rosemarie Dempsey (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: J Sheller SC with D Tang (Applicant) B Baker (First Respondent) Submitting Appearance (Second Respondent)