Dempsey v Director of Public Prosecutions

The applicant, Dempsey, sought to appeal against orders for costs made by a primary judge in the District Court of New South Wales. The Director of Public Prosecutions (DPP) was the respondent. The dispute concerned the quantum of professional costs awarded to the DPP following proceedings under the *Criminal Procedure Act 1986* (NSW) and the *Crimes (Appeal and Review) Act 2001* (NSW).

The Court of Appeal was required to determine whether the primary judge had denied the applicant procedural fairness by failing to inform him that the summary nature of the proceedings and the fact that a party is not entitled to recover all of its costs would be taken into account when assessing costs. Further, the court had to consider whether the primary judge's exercise of discretion to reduce the DPP's costs by 30% constituted a jurisdictional error, and whether there was any meaningful difference between the statutory requirements for costs to be "just and reasonable" under section 213 of the *Criminal Procedure Act 1986* and "just" under section 28 of the *Crimes (Appeal and Review) Act 2001*. The central question was whether the primary judge had addressed the wrong question, thereby failing to properly exercise the jurisdiction conferred by the relevant provisions.

Meagher and White JJA, and Emmett AJA found that the primary judge had erred in law. Their Honours held that the failure to inform the applicant of the specific considerations that would be taken into account in the costs assessment amounted to a denial of procedural fairness. The court also determined that the primary judge had failed to properly consider the relevant statutory tests for awarding costs, particularly the distinction between "just and reasonable" and "just". This failure meant that the discretion conferred by the legislation had not been properly exercised.

Consequently, the Court of Appeal set aside the costs orders made on 26 April 2019 and remitted the matter to Scotting DCJ of the District Court for redetermination.