Francesco Madafferi v The Queen [No 2]

The case before the court involved an application for leave to appeal against a conviction, with a subsequent application for public interest immunity by the Chief Commissioner of Victoria Police. The applicant sought production of materials for the purpose of the appeal. The central legal issues before the court were whether the applicant was entitled to costs associated with the public interest immunity application and whether this application was a 'proceeding preliminary or incidental' to the appeal, thereby justifying an award of costs under the Criminal Procedure Act 2009.

The court determined that the public interest immunity application was incidental to the appeal, and thus fell within the scope of a 'proceeding preliminary or incidental' to the appeal. However, the court held that it lacked the power to award costs to the applicant in respect of this application. The court reasoned that the statutory framework did not permit such an award, thus the application for costs was dismissed. The court also considered the role of amici curiae in the proceedings, noting their significant involvement and the success of their submissions. The amici curiae had provided confidential submissions and materials that required their expertise and had a substantial role in the proceedings, which exceeded the initial scope of their engagement. Given the circumstances, the court found it to be an exceptional case justifying the award of costs in favour of the amici curiae.

The court's final orders were that the application for costs in relation to the public interest immunity application was dismissed, but costs were awarded to the amici curiae for their substantial and successful contributions to the proceedings.