EFG v Secretary, Department of Communities and Justice

Case •

[2025] NSWSC 164

•

10 March 2025

No judgment structure available for this case.

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: EFG v Secretary, Department of Communities and Justice [2025] NSWSC 164
Hearing dates: 4 March 2025
Date of orders: 10 March 2025
Decision date: 10 March 2025
Jurisdiction:Common Law
Before: Basten AJ
Decision:

(1)   Grant the plaintiff an extension of time to 25 October 2024 to file the summons commencing this proceeding.

(2)   Dismiss the amended summons.

(3)   Order the plaintiff to pay the State’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – legal unreasonableness –certificate under Costs in Criminal Cases Act 1967 (NSW) – determination of costs by Secretary –assessment of “maximum amount” – whether Secretary bound to award “costs reasonably incurred” – application of Attorney General’s rates – whether costs to be assessed on “party/party” basis – disallowance of fees at senior counsel rates

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 3A, 4, 6

Courts Legislation Amendment Act 1998 (NSW), Sch 5

Suitors’ Fund Act 1951 (NSW), s 6

Uniform Civil Procedure Rules 2005 (NSW), Pt 59, r 10

Cases Cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Boele v Rinbac Pty Ltd [2014] NSWCA 451

EFG v General Counsel, Department of Communities and Justice [2024] NSWSC 1373

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13

Stanizzo v Secretary, Department of Justice (NSW) [2016] NSWSC 348

Texts Cited:

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co, 2022)

NSW Legislative Assembly, Parliamentary Debates (Hansard), 8 March 1967

Category:Principal judgment
Parties:

EFG (Plaintiff)

Secretary, Department of Communities and Justice (First Defendant)
State of New South Wales (Second Defendant)
Representation:

Counsel:
T Molomby SC (Plaintiff)
D Birch (Second Defendant)

Solicitors:
Rebekah Giles, Giles George (Plaintiff)
Crown Solicitor (First and Second Defendants)
File Number(s): 2024/00396267
Publication restriction: Pursuant to orders made by Campbell J on 25 October 2024, there is to be no publication of the name of the plaintiff or of any matter that might lead to his identification.
Pursuant to s 578A of the Crimes Act 1900 (NSW), the name of the complainant and any matter which could identify her are not to be published.

JUDGMENT

  1. BASTEN AJ: The applicant has challenged the validity of a decision of the Secretary, Department of Communities and Justice, that an amount be paid by way of costs pursuant to a certificate granted under the Costs in Criminal Cases Act 1967 (NSW) (Costs Act). The plaintiff claims the payment in fact made, of $188,172.20, was unlawfully inadequate.

Factual Background

  1. The plaintiff was charged with three counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent, being conduct in relation to one female complainant, occurring in the course of one evening in a residential college of a university. The plaintiff entered pleas of not guilty and was acquitted by a jury following a trial in the District Court in May 2022. A non-publication order has been made in these proceedings in relation to details which might lead to the identification of the plaintiff. [1] (A similar statutory protection exists in relation to the identity of the complainant.)

    1. EFG v General Counsel, Department of Communities and Justice [2024] NSWSC 1373.

  2. Following the not guilty verdicts, the plaintiff made an application for a certificate under the Costs Act, relying upon fifteen matters of which it was said that, had the prosecution been in possession of the relevant evidence before instituting the proceedings, it would not have been reasonable to institute them. The trial judge accepted that those matters, taken in combination, supported that conclusion. Although some were matters which lay within the knowledge of the accused, but not the prosecution, the judge was also satisfied that failures to disclose those matters pre-trial were not acts or omissions of the accused that contributed to the institution or continuation of the proceedings. Accordingly, on 6 July 2022, the trial judge directed that a certificate under the Costs Act be granted to the plaintiff. (Although s 6 of the Costs Act baldly states that “No certificate … shall be admissible in evidence in any proceedings”, that cannot be taken to prevent the admission of a certificate in proceedings where the existence of the certificate is a precondition to a party’s claimed entitlement.)

  3. On 9 October 2023, the solicitors for the plaintiff made an application for payment of costs pursuant to the certificate, seeking an amount of $515,523.21. The General Counsel of the Department, as the delegate of the Secretary, determined that a payment be made in an amount of $188,172.20. [2] That determination is the subject of the present application for judicial review.

    2. It is convenient to refer to the decision-maker as the Secretary, who was correctly named as the first defendant.

  4. The figure was reached by a two-stage process. The first step was an assessment of the “maximum amount” incurred, being those costs which were determined to have been “reasonably incurred” in the proceedings the subject of the certificate. The removal of items which were found not to satisfy that test resulted in a figure of $419,976.07. The second step involved the assessment of amounts to be allowed for those items in accordance with the Attorney General’s payment rates for solicitors and counsel, as in force at the relevant times. Those are the rates generally applied to lawyers in private practice acting for government officers and agencies.

  5. The determination was made on 25 June 2024 and conveyed, with reasons, in a letter dated 26 June 2024. On 8 July 2024 the plaintiff’s solicitors wrote to General Counsel, disputing aspects of the assessment. On 14 August 2024 a response provided further detail as to the reasons for the determination. It was agreed that the Court could view both letters as constituting the reasons for the determination.

Application for judicial review

  1. On 25 October 2024, the plaintiff filed a summons seeking judicial review. An extension of time was required pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Pt 59, r 10. There was no opposition to the extension, in circumstances where the parties had been in communication following the decision and where the delay was limited to one month. Time should be extended accordingly.

  2. The summons joined both the Secretary and the State of New South Wales as defendants. The operative orders sought in the amended summons included both a declaration that the Secretary’s determination was invalid and an order setting it aside. Further, the amended summons sought an order that the defendants pay the plaintiff the amount determined by General Counsel as the “maximum amount”, namely $419,976.07. Although the plaintiff sought orders for payment and costs against both defendants, the Secretary’s determination was the authority for a payment from the Consolidated Fund. [3] The State defended the proceeding, presumably on the basis that the decision-maker should not be an active party, in accordance with the Hardiman principle. [4]

    3. Costs Act, s 4(6).

    4. The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13.

  3. Whether an order for payment could properly have been made in these proceedings may be put to one side: the significance of the proposed order is that it reflected the absence of a challenge to the first stage of the Secretary’s decision-making.

  4. As the case turned on the proper construction of s 4(1)-(4) of the Costs Act, it is convenient to set out those provisions here: [5]

    5. Changes in nomenclature have resulted in the Secretary replacing the Director-General.

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.

  1. There is no doubt that s 4(2) of the Costs Act confers a discretionary power. Indeed, read with subs (3), it incorporates three discretionary determinations. The first requires the Secretary to form the opinion that the making of a payment “is justified”. That a determination may be made refusing any payment is confirmed by sub-s (4), which itself provides two bases for refusing to make a payment, namely where it is “not justified” and where “costs are otherwise recoverable”. The words in parentheses, “without limitation”, suggest that those grounds are not intended to be exclusive. [6] It is not necessary to explore what might justify refusal to make a payment because this aspect was determined favourably to the plaintiff; that is a payment was to be made.

    6. Cf a dictum in Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348 at [51] (Rothman J).

  2. The second element of the s 4(2) discretionary power involves determining “the amount of costs that should be paid”. That exercise is subject to a cap, identified as “the maximum amount referred to in sub-section (3)”. The third exercise of discretion is the determination of the cap. However, as that sets a limit to the amount which should be paid, determination of the cap is an exercise antecedent to the operative determination. Each of these elements is better described as the exercise of an evaluative judgment than as a discretionary decision. However, the principal issue in this matter was the determination to apply a particular scale. It was that approach which was said to result in a manifestly unreasonable outcome.

  3. To the extent that the plaintiff submitted that any amount less than the “maximum amount” would involve an unlawful determination, that submission was inconsistent with the conferral of a power subject to a cap. However, s 4(2) cannot be construed as a power only to make the payment that, in the opinion of the Secretary, “would reasonably have been incurred for costs”. That point of construction disposes of the principal contention in the plaintiff’s case, as will be explained further below.

  4. The sole ground of review alleged that the exercise of the discretion under s 4(2) of the Costs Act was “unreasonable”. There were seven particulars purporting to identify elements of unreasonableness. Three focussed on the application of the Attorney General’s rates: pars (c), (d), (e). Somewhat confusingly, two alleged the taking account of an “irrelevant consideration”; one being the Attorney General’s rates (par (c)), the other being “the incorrect view that senior counsel appeared with a junior, whereas senior counsel appeared alone”: par (f). An “irrelevant consideration” is a matter which, expressly or by implication, the statute prohibits being taken into account. [7] A mistake of fact cannot be dressed up as an error of law by characterising it as an irrelevant consideration. As to (f), the mistake lay in the pleading, not in the determination under review.

    7. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J); [1986] HCA 40.

  5. Another particular alleged a failure to comply with “the purpose” of the Costs Act: par (a). That appears to have been a pleading of an error of law in failing to make a payment reflecting the full amount of the reasonable costs incurred by the plaintiff. That understanding was consistent with par (b), which complained of a reduction below the amount already determined as “reasonable costs”. Finally, par (g) stated that it was “contrary to the practice of the Department over many years from the commencement of [the Costs Act], which was to pay such costs on a party and party basis”. This implied that there had been a change in policy and the change was capricious or arbitrary and, in that sense, contravened the legal standard of reasonableness sufficient for judicial review of an individual determination made under the new policy.

Relevant legal principles

  1. Before turning to the detail of the statutory scheme, it is convenient to set out the principles relied on by the plaintiff in his claim that the Secretary’s determination was unreasonable. First, the plaintiff explained that the justification for challenging the determination on a range of grounds, all characterised as rendering the determination unreasonable, was to be found in the joint reasons of Hayne, Kiefel, and Bell JJ in Minister for Immigration and Citizenship v Li: [8]

“[71]    In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where ‘no sensible authority acting with due appreciation of its responsibilities’ would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.

[72]   The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that ‘all these things run into one another’. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.”

8. (2013) 249 CLR 332; [2013] HCA 18.

  1. After referring to the “close analogy between judicial review of administrative action and appellate review of a judicial discretion”,[9] the joint reasons concluded:

“[76]   … unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

9. Peko-Wallsend at [41]-[42]; Li at [75].

  1. It is doubtful whether the joint reasons in Li were intended to encourage pleading which rolled specific grounds of judicial review into a catch-all characterisation of unreasonableness. Such a course may lead to analysis at a level of generality which tends to obscure the particular error relied upon as rendering a decision invalid. Where the law requires that a specific matter be taken into consideration, which matter has been ignored, it is helpful to plead the ground in that way. If, in another case, the pleader accepts that the decision-maker did consider the matter, but gave it insignificant weight, then a question of unreasonableness may properly be relied upon. Similar problems of imprecision can arise where a failure to address a significant point raised by an applicant is not pleaded as a failure by the decision-maker to carry out his or her proper function according to law, but as procedural unfairness. [10] Even unreasonableness has on occasion been conflated with procedural unfairness, in a “loose” sense. [11] A preferable approach may be seen in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,[12] where Gaudron J stated:

“[81]   … However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of ‘refugee’.”

10. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]; cf Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 at [44]-[51] (Payne JA); Boele v Rinbac Pty Ltd [2014] NSWCA 451 at [54].

11. Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [99] (Edelman J).

12. (2001) 206 CLR 57; [2001] HCA 22.

  1. There is also a danger in identifying the ground of unreasonableness as a breach of a statutory obligation to exercise a power reasonably. [13] In the past, deployment of labels such as “Wednesbury unreasonableness” or “manifest unreasonableness” helped to fix the level of scrutiny which was applied to the exercise of a discretionary power. As explained by Gageler J in Li:

“[108]   Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.”

13. See, for example, Li at [63].

  1. After referring to the analogous principles governing appellate review of the exercise of judicial discretion, Gageler J continued:

“[111]   It has nevertheless been observed that ‘in practice the comparative familiarity of an appellate court with judicial discretions and the usual confines of a judicial discretion make the appellate court more sensitive to an unreasonable exercise of discretion and more confident of its ability to detect error in its exercise’. That is because it is ‘harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience’. Similar observations have been made as to the inability of a court ‘effectively’ to review a state of satisfaction forming a pre-condition to an exercise of a statutory power or performance of a statutory duty ‘where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste’.”

  1. In Minister for Immigration and Border Protection v Stretton,[14] Allsop CJ observed:

“[8]   The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].” [15]

14. (2016) 237 FCR 1; [2016] FCAFC 11.

15. See also Stretton at [58], [62] (Griffiths J); [92] (Wigney J).

  1. These views are not heterodox. The High Court revisited the unreasonableness ground in Minister for Immigration and Border Protection v SZVFW. [16] There, Kiefel CJ, who had been a party to the joint reasons in Li, stated:

“[10]   In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

[11]   Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”

16. (2018) 264 CLR 541; [2018] HCA 30.

  1. In SZVFW, Gageler J observed:

“[52]   Expression of the standard of legal reasonableness in terms of the minimum to be expected of any ‘reasonable repository of the power’ in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’[17] scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words.”

17. See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21 (Brennan J).

  1. Other members of the Court spoke in similar terms to those set out above. [18] Finally for present purposes, in Minister for Home Affairs v DUA16,[19] a judgment of the Court stated:

“[26]   A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn ‘from the facts and from the matters falling for consideration in the exercise of the statutory power’.”

18. See SZVFW at [84]-[87] (Nettle and Gordon JJ); [131] (Edelman J).

19. (2020) 271 CLR 550; [2020] HCA 46.

Statutory scheme

  1. There may be some uncertainty as to the proper calculation of the maximum amount in accordance with s 4(3) of the Costs Act. The calculation of costs reasonably incurred may require reference to two separate elements. The first is whether the activity (item) the subject of each charge was a reasonably necessary part of the legal services being provided. The concept of “over-servicing” is familiar. There is no doubt that the Secretary is entitled to form an opinion as to what items were reasonably necessary and what were not. To the extent that the Secretary undertook that function no challenge was made, subject to one possible qualification noted below. The second element is to determine the reasonableness of the rate at which each item is charged. On one view, the “maximum amount” calculated in accordance with sub-s (3) should also identify the reasonable rate in relation to each particular item. It is not clear that the Secretary took the latter step. The Departmental policy and procedure document in evidence tended to confirm that the reasonableness of the rate actually charged is not separately considered, because the amount to be paid is calculated by reference to the Attorney General’s rates.

  2. The distinction between item and rate is, in any event, not always precise or easily applied. For example, the Secretary rejected items charged in relation to an apprehended violence order obtained by the complainant. Those items were found not to fall within the scope of the certificate. That was one issue. Had they fallen within the scope of the certificate, there might have been questions as to (i) whether counsel had been briefed to deal with the matter; (ii) if counsel had been briefed, whether it was reasonably necessary to brief counsel; (iii) if so, whether the number of hours counsel spent on that matter was reasonable; and, finally, (iv) the reasonableness of the rate at which counsel charged.

  3. Each of these considerations involves a separate exercise in assessing the reasonableness of particular costs. In an age when time costing is the norm, it does not follow that an assessor must accept whatever period of time a lawyer claims to have spent on a particular activity as reasonable. Nor was the Secretary bound to accept the lawyer’s rates quoted to the client as necessarily what was reasonable, although they formed a cap on the amounts charged.

  4. If the Secretary did not attempt to determine whether the rates at which solicitor and counsel charged were “reasonable”, because the exercise being undertaken was ultimately to apply the Attorney General’s charging rates, it may be that that exercise of determining the “maximum amount” was incomplete. However, if the reasonableness of the charging rates had been addressed, the maximum amount could not have been greater than that in fact determined; it would probably have been lower. That would not have assisted the plaintiff. On the other hand, if the Secretary was bound to pay the amount calculated by reference to a rate which renders the charge “reasonably incurred”, the Secretary should be allowed to complete the process. Thus, even on the plaintiff’s case, the Secretary would not be bound to pay a “maximum amount” which had been accepted without assessing the reasonableness of the rates applied.

Consideration of ground (f)

  1. The qualification noted at [25] above in relation to the rejection of particular items was the complaint in particular (f) that the Secretary formed an incorrect view that senior counsel had appeared with a junior, whereas senior counsel appeared alone. It is convenient to address that matter before turning to the application of the Attorney General’s rates. First, as a factual matter, there was no evidence to suggest that the Secretary misunderstood the arrangements with respect to appearances at the trial. Rather, on 1 February 2024, whilst the application was being considered, an officer in the Department raised with the plaintiff’s solicitor the use of senior counsel at the trial:

“Senior counsel

While two separate junior counsel were briefed during the course of this matter, it appears that they were not present at the trial, and that Senior Counsel appeared on a direct brief. … On the available materials, it does not appear that the matter was of such complexity, either legally or factually, that it would be beyond the capacity of a moderately competent junior counsel to conduct the trial on behalf of the applicant.

The Crown Solicitors Office have formed the preliminary view that it was not therefore reasonable to brief senior counsel in the circumstances ….”

The plaintiff’s solicitors’ reply stated, “We disagree fundamentally with the tentative position of which you have advised us”. [20]

20. Unsigned submission dated 28 February 2024, par 6.

  1. The first letter of 26 June 2024 conveying reasons for the determination did not address that dispute. However, the second letter of 14 August 2024 did, stating under the heading, “Reasonableness of Senior Counsel”:

“I note that submissions were sought from your firm in relation to why it was reasonable to brief Senior Counsel (in addition to Junior Counsel), in circumstances where all the charges arose out of the same incident, the main issue was one of credibility, and no particular factual or legal complexities arose.

I further advise that after careful consideration of your submissions, the A/General Counsel did not consider it reasonable, for the purposes of the Act, to brief Senior Counsel in this matter.

…

Accordingly, Senior Counsel fees that were considered to have been reasonably incurred were allowed at the Attorney General’s rate for Junior Counsel.”

  1. The letter set out reasons for that determination, responding to three points identified in the plaintiff’s submission of 28 February 2024. The first point, that there were several incidents arising out of a single episode, was said not to warrant briefing senior counsel. A second point, alleging the vulnerability of the plaintiff to the “ruthless and devious” complainant, was rejected as a not unusual factor. As to the third point, relying on the complexity of the factual circumstances, the reasons noted that the relationship between the plaintiff and the complainant was of “relatively short duration”, and the initial brief “only comprised three folders in total”. It was further noted that no complex legal issue had been relied on. These reasons raised matters requiring an evaluative judgment on the part of the Secretary; they demonstrated an evident and intelligible justification, which was not in any sense arbitrary or irrational.

  2. In written submissions, the plaintiff’s counsel asserted that there was a “fundamental error in the approach to the assessment of fees”, the fees of senior counsel being assessed “on the basis that he was retained in addition to Junior Counsel.” [21] Despite an impassioned plea in senior counsel’s submissions in reply, there was no attempt to demonstrate legal unreasonableness in refusing to pay senior counsel’s rates for the trial. Counsel’s submissions appeared to fall within the terms of the warning given by Gleeson CJ and McHugh J more than 25 years ago in Minister for Immigration and Multicultural Affairs v Eshetu:[22]

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

21. Plaintiff’s written submissions, 4 February 2025, pars 26-27.

22. (1999) 197 CLR 611; [1999] HCA 21 at [40].

  1. The reason that the Secretary disallowed fees at a rate for senior counsel was that the matter was not one of sufficient complexity or difficulty as to warrant the briefing of senior counsel. In response, a vituperative attack was made on the honesty of the complainant and the “irremediable harm,” which would have been done to the plaintiff had he been imprisoned. There was no evidence before this Court as to the character of the complainant and the submissions were inappropriate for that reason, apart from the language involved. Secondly, many persons facing a custodial sentence if convicted face trial every day represented by junior counsel. The plaintiff was undoubtedly entitled to brief senior counsel, but it did not follow that the Secretary acted unreasonably in declining to assess counsel’s fees on the basis of an agreed payment to senior counsel of $9,000.00 a day. The Secretary’s determination in that respect was neither manifestly unreasonable, nor irrational: it was supported by clear reasons, as indicated above. Particular (f) must be rejected.

  2. The remaining issues turn on whether the Secretary acted legally unreasonably in applying what were described as the Attorney General’s rates.

Determining applicable rates

Statute and policy

  1. As Gageler J observed in Li at [108], an important constraint on a court being satisfied that an administrative decision-maker has acted unreasonably arises where the exercise of power is legitimately informed by considerations of policy. This is such a case. In determining the hourly and daily rates to be applied to the work reasonably undertaken, the letter of 14 August 2024 stated:

“In determining the payment amount under section 4(2) of the Act, regard was given to the Department of Communities & Justice’s policy in applying the Attorney-General’s agreed rates to applications under the Act.

In accordance with this policy, the costs considered to have been reasonably incurred were moderated in accordance with the relevant Attorney General’s agreed rate … where the charged rate exceeded those rates.”

  1. The statement of the Attorney General’s rates for legal representation described the rates as payable to “legal representatives … engaged by and on behalf of Government departments and agencies and public officials.” The document also stated:

“When do the Attorney General’s rates apply?

…

In respect of Junior Counsel and Solicitors the rates apply to matters such as:

•   Ex gratia representation as approved by the Attorney General …; and

•   costs associated with certificates under the Suitor’s [sic] Fund Act and with the Costs in Criminal Cases Act.”

  1. The plaintiff submitted that the policy was not engaged in its terms. First, it was primarily intended to apply to legal representatives appearing for the Government and its agencies. Insofar as it was said to apply in relation to the Costs Act, that was explicable on the same basis, because there were circumstances recognised in that Act where the Minister could be represented to deal with evidence of further relevant facts. [23]

    23. Costs Act, s 3A.

  2. That submission cannot be accepted. A policy is not to be read with an eye attuned to fine distinctions. The ordinary meaning of the passages set out above, read as a whole, is that the rates apply in determining payments pursuant to a certificate under the Costs Act. There would be no need to deal with Government representation in proceedings under the Costs Act because they would fall within what was conceded to be the primary operation of the policy, namely payment of lawyers representing the Government and its agencies. Further, the plaintiff’s argument did not address the combined reference to the Suitors’ Fund Act 1951 (NSW) and the Costs Act. Both provide for certificates whereby costs of private litigants may be met, in defined circumstances, from the public purse. The possibility that some different meaning might be given to the words in relation to the Costs Act (because the Minister has a right of appearance in such proceedings), which does not apply in relation to the Suitors’ Fund Act, is inconsistent with basic principles of construction. The preferred reading of the policy is that it does apply, in its terms, to the determination of an amount to be paid pursuant to a Costs Act certificate.

  3. Even were that not correct, there was a further document, promulgated by the Department, which commenced with the following statement:

“This document sets out the Department of Communities & Justice (DCJ)’s policy and procedures for assessing applications under the Costs in Criminal Cases Act 1967 (The Act).”

After setting out the assessment process, the document dealt with “Assessment of Costs” in the following terms:

“Determining the amount for payment involves assessing the reasonableness of the costs claimed and the moderation of costs.

…

Moderation of costs

The reasonably incurred costs are moderated in accordance with the applicable Attorney General’s (AGs) relevant rates for Solicitor, Junior Counsel and Senior Counsel.”

  1. That is, the Department’s own policy for dealing with applications under the Costs Act expressly adopted the Attorney General’s rates. The submission to the contrary was without substance. To describe the Attorney General’s rates as “an irrelevant consideration” was misconceived: particular (c) must be rejected.

  2. Once it is accepted, as it must be, that s 4(2) of the Costs Act envisages payments which do not reach the maximum amount of reasonably incurred costs, there must be some scale of fees which can be applied by the Secretary. There is no constraint expressed in the Costs Act which precludes the Secretary from adopting any scale which he or she, acting reasonably, considers appropriate. Even if there were no published policy applying the Attorney General’s rates in assessing the amount to be paid under a Costs Act certificate, there is no reason why the Secretary could not apply them.

  3. Although particular (e) stated that adoption of the Attorney General’s rates resulted in discrimination between civil and criminal matters, that was not true in terms of the rates themselves: they applied in both areas. The further complaint was that the rates departed from (were lower than) the costs commonly awarded on a party and party basis in civil matters. If consistency with civil matters were necessary, they were to be applied to civil matters – in assessing costs for a certificate granted under s 6 of the Suitors’ Fund Act.

  4. In the final analysis the complaint was simply that the Secretary was bound to determine the amount payable on a certificate under the Costs Act as if conducting a party and party assessment as between parties in civil proceedings. Again, there is nothing in the Costs Act which requires the Secretary to adopt a level of hourly and daily rates which would be adopted in such party and party assessments. To imply such a requirement would be inconsistent with the express language envisaging a power to determine a lesser amount than the “reasonably incurred costs”, which, on one view, might require such an assessment. (On the other hand, there is no statutory constraint which would preclude such a course.)

  5. The plaintiff relied on two further submissions to support its challenge to the adoption of the Attorney General’s rates.

Second Reading speeches

  1. The first submission relied, somewhat obscurely, on words used in the course of the Second Reading speeches for the Costs in Criminal Cases Bill in March 1967 in the Legislative Assembly and the Legislative Council. The purpose of the exercise was to find language consistent with the proposition that a party to whom a certificate had been issued should receive the total amount of the reasonably incurred costs. The exercise was akin to reading tea leaves and equally unproductive. The discussion in the Second Reading speeches was at a high level of generality; the Minister spent much time addressing the situation in England before announcing that “this State has adopted in entirety the principles espoused by the English Government”. [24] The precise language in which those “principles” were expressed in the English legislation in force almost 50 years ago was not revealed in the Second Reading speech, nor was it revealed in material before this Court. The only proposition which is clear from the discussion and comments of the then Minister for Justice, Mr Maddison, is that taxing (assessing) costs was an “absurd” proposition and that “the sort of case we are talking about is a quick and ready assessment of costs where necessary that can be met by quick payment”. [25]

    24. NSW Legislative Assembly, Parliamentary Debates (Hansard), 8 March 1967, p 3920 (col 1).

    25. Ibid, p 3924 (col 1).

  1. A further insurmountable problem with reliance on the Second Reading speeches in 1967 was that, in the Costs Act as enacted, s 4 was in quite a different form from its current emanation. The present provision was substituted for the original provision in 1998. [26]

    26. Courts Legislation Amendment Act 1998 (NSW), Sch 5[2].

Reliance on past practice

  1. The second, and equally problematic, approach proffered by the plaintiff was to rely upon a “practice” of assessing costs by reference to the principles adopted in assessing party and party costs in civil matters. The evidence in support of the existence of such practice was twofold. The first item was an advice given by the then Solicitor General, Keith Mason QC, in 1996 which referred to the practice in those terms. That statement was made by way of introduction to the issue raised for advice, which was as to “the proper method of determining the amount that would reasonably have been incurred for costs by an applicant”, which is not the test under the present s 4(2), but is used in relation to the “maximum amount” in subs (3). The information relied on by the Solicitor General as to past practice was found in two letters, written by the Director-General and the Attorney General in July and September 1993 respectively. Four comments may be made in respect of that material: (i) it revealed a concern in 1996 as to whether existing practice was appropriate, desirable or necessary; (ii) it identified a practice in place 30 years ago and in the absence of any statutory direction; (iii) it related to a practice which predated the current form of the legislation; and (iv) to the extent it remains relevant to the current legislation, it addressed the calculation of costs reasonably incurred, not the determination of the amount payable. Whilst no objection was taken to the admissibility of such material, it may be disregarded as having neither relevance nor weight.

  2. The second item of evidence was a letter set out in Stanizzo at [15] which stated:

“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.”

  1. The reference in Stanizzo to “the Attorney General’s Guidelines” suggests that there had been a change in policy since that which preceded the 1998 replacement of s 4, discussed in the Solicitor General’s 1996 advice, casting further doubt on reliance on that document.

  2. Putting to one side the flimsy evidential basis for the content of a practice in earlier times, the submission must fail because there can be no unlawfulness in simply varying an administrative practice applying one set of rates to apply another, where both are permissible. The contention that any unexplained change in practice must be “arbitrary” is fundamentally erroneous. Even adopting long-since discarded terminology, the plaintiff can have had no “legitimate expectation” that his application would be assessed in accordance with a particular policy or practice, when the policy and practices as presently applied were publicly available.

  3. Nor was senior counsel for the plaintiff able to identify any case in which such a general proposition as that proposed by him had been accepted. Indeed, administrative law principles set themselves against reliance on practices or policies to fetter administrative decision-making. [27] This was not a case where a promise had been made to the plaintiff, but not fulfilled. And even if there had been such a promise, the general rule is that no equivalent to estoppel by representation can narrow the scope of a statutory discretion. [28] In similar terms, Mason CJ stated in Attorney General (NSW) v Quin: [29]

“The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power.”

27. See, for example, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co, 2022) at [6.210].

28. Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, pp

29. Quin (fn 17 above), p 17.

  1. Rather, where a procedural promise is made on which the promisee can be expected to rely, notice should be given of an intention to abandon the promised procedure.

  2. Even if the rates currently adopted in the Attorney General’s guideline were lower than those adopted in the past, by comparison with other measures of identifying reasonably incurred legal costs in relation to private practice (a fact not established by the evidence), that would not demonstrate that the rates applied were legally unreasonable. The fact that the rates are applied on a daily basis by the many lawyers in private practice who do State Government work precludes acceptance of such a conclusion.

  3. Once it is accepted, as a matter of statutory construction, that the Secretary was empowered to pay a lesser amount than that identified as “the maximum amount that … would reasonably have been incurred for costs”, it must also be accepted that, in its terms, s 4 does not identify constraints on how that lesser amount is to be determined. It is therefore necessary to look at implied constraints, if any.

  4. One inference, which should be accepted, is that the amount to be paid is to be determined by reference to the circumstances of the individual case. Unlike the cap in the Suitors’ Fund Act, the Costs Act cap is not an arbitrary figure but is determined by reference to the circumstances of the case. It might, therefore, be legally unreasonable for the Secretary to work upon the basis of a fixed sum maximum amount, regardless of the circumstances of the particular proceeding the subject of a certificate. However, that did not happen.

  5. It is not possible to imply a requirement that the costs be subject to the kind of assessment which is made in civil cases in accordance with the terms of legislation governing the legal profession. (That would be contrary to the Minister’s intention expressed in the Second Reading speech relied on by the plaintiff.) Even in civil cases, that course is not always taken as, for example, when a court makes a gross sum costs order. [30] Although it was not adopted in this case, it would be difficult to see why the Secretary could not adopt a broad-brush approach in determining, by reference to such factors as the length of the trial and the complexity of the issues involved, a figure for a particular case. Whether that approach is desirable, is one consideration; to say that, if adopted, it would be legally unreasonable is quite another.

    30. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).

  6. Although other approaches might be relied on by analogy, a reference to “party and party costs” is no more than an analogy. The government bears the costs of meeting a certificate under the Costs Act because of the public interest in reimbursing a person found not guilty of criminal charges for at least part of the costs incurred in defending the charges. The government is not in the same position as an opposing party in civil proceedings. Nor is there a clear analogy with solicitor and client costs: the government is not in a contractual relationship with the plaintiff. The plaintiff’s objection to reliance on the Attorney General’s rates might also have applied to costs rates applicable to civil proceedings, if consistency of approach were adopted.

Findings as to particulars

  1. For all the reasons discussed above, particular (b), which alleged unreasonableness in awarding any other amount than that determined as the “reasonable costs incurred”, must be rejected.

  2. Reliance on “past practice” (particular (g)) assumed that some form of restraint, not expressed in the statute, operated as an estoppel against the government. This was not a case where the government had made a representation which was relied upon by the plaintiff. On the contrary, there was in evidence a published statement by the Department as to the basis upon which such applications would be determined. Particular (g) must be rejected.

  3. Insofar as there was a statement of policy, the Secretary applied the policy. There is nothing in s 4 of the Costs Act which prohibits such a scale of rates being taken into account as a matter of policy. It was therefore not an irrelevant consideration: particular (c) must also be rejected.

  4. Particular (d) complained that by applying the Attorney General’s rates, the Secretary failed to take into account “features of the proceedings that required particular expertise”. The mere fact of applying fixed rates could not have given rise to that problem: it was precisely the approach adopted by solicitor and counsel in specifying a set of rates which they would charge. In effect, the complaint was that they were entitled to charge more. So they were; but unless the plaintiff was entitled to be indemnified for whatever his lawyers charged, that fact does not demonstrate that the Secretary’s decision was unreasonable.

  5. Nor is it correct to say that the Secretary did not consider the level of expertise required. As appears to have been the thrust of particular (f), the Secretary determined that the matter did not warrant a payment based on rates charged by senior counsel. Thus, when the Secretary did take account of the level of expertise required, that too was said to be an error. The straightforward point is that the level of expertise involved was not an irrelevant consideration, but a matter which the Secretary was permitted to take into account, and did so, as considered appropriate. Those decisions cannot be challenged as unlawful. Particular (d) must be rejected. (Particular (f) was rejected at [33] above.)

  6. Particular (e) complained that the application of the Attorney General’s rates resulted in a payment of costs which was “significantly lower” than the costs “to be paid” in a civil proceeding. That was, presumably, a reference to payments available on a party and party assessment. As has been explained, there was no unlawfulness on the part of the Secretary in not applying rates which might have been adopted in a determination of party and party costs in a civil proceeding. Indeed, as has been noted, s 4(2) expressly states that the payment not exceed the amount, as determined by the Secretary, of costs reasonably incurred, thus permitting (if not expecting) payments of lower amounts.

  7. Despite strong language in the plaintiff’s written submissions, the proposition that the Secretary acted legally unreasonably in determining that costs would be paid according to the scales applied by the Attorney General in instructing solicitors and briefing counsel to appear on behalf of the Government is without substance. Particular (e) must be rejected.

Consideration of statutory purpose

  1. It remains to consider particular (a), which alleged that the Secretary failed to comply with “the purpose” of the Costs Act. The underlying assumption was that the purpose of the Costs Act was to indemnify the holder of a costs certificate for the reasonable costs incurred in relation to the proceeding to which the certificate applied. No doubt, the purpose of the Act is to provide an element of indemnity in the circumstances in which a certificate is provided. However, it is no part of the statutory scheme to provide a full indemnity. Nor did the plaintiff seek a full indemnity. Nor was the purpose of s 4 to provide a full indemnity for costs “reasonably incurred”: had that been intended, the power would have been conferred in terms which did not distinguish between determination of the “maximum amount”, being the costs reasonably incurred, and the amount which might be provided at the discretion of the Secretary. Particular (a) must be rejected.

Conclusions

  1. The grounds relied on by the plaintiff were not maintainable. Accordingly the amended summons must be dismissed. Costs will follow the event.

Orders

  1. The Court makes the following orders:

  1. Grant the plaintiff an extension of time to 25 October 2024 to file the summons commencing this proceeding.

  2. Dismiss the amended summons.

  3. Order the plaintiff to pay the State’s costs of the proceedings in this Court.

**********

Endnotes


210-211 (Gummow J).

Decision last updated: 10 March 2025

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Attorney-General (NSW) v Quin [1990] HCA 21
Kioa v West [1985] HCA 81
Boele v Rinbac Pty Ltd [2014] NSWCA 451