EFG v Secretary, Department of Communities and Justice

EFG sought judicial review of a decision by the Secretary of the Department of Communities and Justice, who had determined the costs under the Costs in Criminal Cases Act 1967 (NSW). The applicant argued that the Secretary's determination was flawed in several respects, including the assessment of the "maximum amount" of costs, the application of Attorney General's rates, and the disallowance of fees at senior counsel rates. The court was required to determine whether the Secretary was bound to award "costs reasonably incurred" and whether costs should be assessed on a "party/party" basis.

The court considered whether the Secretary had made a jurisdictional error by misapplying the relevant statutory provisions. It examined the statutory framework, including the definition of "costs reasonably incurred" and the circumstances in which the Secretary could limit the amount of costs awarded. The court also explored the appropriate basis for assessing costs, including whether the "party/party" basis was mandated by the legislation. Furthermore, the court addressed the question of whether the disallowance of fees at senior counsel rates was justified.

The court found that the Secretary had not erred in law by assessing the costs under the statutory framework. It held that the Secretary was not bound to award "costs reasonably incurred" in every instance and could limit the amount of costs where appropriate. The court also determined that the "party/party" basis for assessing costs was not mandated by the legislation, and the Secretary was entitled to consider the overall costs incurred by both parties in making the determination. Additionally, the disallowance of fees at senior counsel rates was deemed reasonable in the circumstances. Consequently, the application for judicial review was dismissed.

The final orders of the court included a dismissal of the applicant's application for judicial review and an affirmation of the Secretary's determination of costs. The applicant was ordered to pay the respondent's costs of the proceeding.