Licha v Joseph

Case •

[2025] NSWCA 192

•

22 August 2025

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Licha v Joseph [2025] NSWCA 192
Hearing dates: 28 July 2025
Date of orders: 22 August 2025
Decision date: 22 August 2025
Before: Kirk and Ball JJA at [1];
Griffiths AJA at [19]
Decision:

(1) The second further amended summons filed 21 July 2025 be dismissed.

(2) The applicants pay the respondents’ costs of the proceeding.

Catchwords:

JUDICIAL REVIEW — District Court dismissed appeal of applications for interim apprehended personal violence orders — whether District Court fell into jurisdictional error in making costs orders — whether there was a mistake in the statutory source of power — Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 99 and 99A — Crimes (Appeal and Review) Act 2001 (NSW) s 28(3)

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 28, 70, 72

Crimes (Appeal and Review) Amendment Act 2009 (NSW), Sch 1, cl 16

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 3, 84, 99, 99A

Crimes (Local Courts Appeal and Review)Act 2001 (NSW)

Criminal Procedure Act 1986 (NSW), s 213

District Court Act 1973 (NSW), s 176

Justices Act 1902 (NSW), ss 131, 133T (repealed)

Justices Amendment (Appeals) Act 1998 (NSW)

Justices Legislation Amendment (Appeals) Act 1998 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7

Cases Cited:

Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3

Brown v West (1990) 169 CLR 195; [1990] HCA 7

Chan v R [2023] NSWCCA 206

Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Dempsey v Director of Public Prosecutions [2019] NSWCA 267

Director of Public Prosecutions (NSW) v Peapell [2025] NSWCA 147

Duarte v Morse (No 4) (2004) 69 Fam LR 147; [2004] FedCFamC1A 95

Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Mahmoud v Sutherland [2012] NSWCA 306

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Moore v The Attorney General (Irish Free State) [1935] AC 484

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24

ProjectBlue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Becirovic [2017] SASCFC 156

R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12

R v MJJ (2013) 117 SASR 81; [2013] SASCFC 51

R v Wilson [2018] SASCFC 13

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21

Texts Cited:

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

Category:Principal judgment
Parties: Mario Licha (First Applicant)
Elise Licha (Second Applicant)
John Joseph (First Respondent)
Amit Pal (Second Respondent)
Jeff Olmos (Third Respondent)
Phillip Schwenke (Fourth Respondent)
Pastor Oral Dawes (Fifth Respondent)
District Court of New South Wales (Sixth Respondent)
Representation:

Counsel:
J Mack (Applicants)
DW Rayment SC and R Reynolds (Respondents)

Solicitors:
Farahs Legal (Applicants)
Prandium Legal (Respondents)
File Number(s): 2025/25837
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
22 October 2024
Before:
Hanley DCJ
File Number(s):
2023/83044; 2023/83030; 2023/83148; 2023/83179;
2023/83117; 2023/83138

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants, a husband and wife, lodged six applications for interim and final apprehended personal violence orders against members of their former Church. Their applications for interim orders were dismissed by the Local Court and they appealed to the District Court. The primary judge dismissed the appeals. After ex tempore reasons were delivered, the respondents applied for costs, referring across two sets of written submissions to ss 99 and 99A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) and s 28(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Section 99(3) of the CDPV Act gives a power to award costs in certain proceedings under that Act and s 99A(1) limits the exercise of that power to cases where the application is frivolous or vexatious. Section 28(3) of the CAR Act gives the District Court a power to make such order as to the costs as it thinks just. Both sides proceeded on the understanding that ss 99 and 99A applied to the appeal in the District Court. That understanding was accepted in this Court to be incorrect. The applicants disputed in the District Court that their applications should be characterised as frivolous or vexatious. In ex tempore reasons, the primary judge concluded that the case was frivolous and vexatious and that the appeal had no merit, and his Honour decided to order costs in favour of the respondents. Formal orders to that effect were made on a subsequent occasion.

The applicants sought judicial review of the primary judge’s costs orders. The primary ground of review was that it was a jurisdictional error for the District Court to have ordered costs under the CDPV Act in circumstances where the District Court’s jurisdiction to award costs in respect of appeals is to be found in s 28(3) of the CAR Act, which (it was said) was not relied upon (Ground 1). Alternatively, the applicants complained that they were unfairly denied an opportunity to make submissions regarding the application of s 28(3) of the CAR Act (Ground 2). The applicants also contended, in the further alternative, that the primary judge failed to make findings as required by ss 28(3) and 72(b) of the CAR Act (Grounds 3(a) and (b)).

The Court held, dismissing the application:

As to Ground 1

1. The applicants failed to establish that the primary judge was not relying upon the power in s 28(3) of the CAR Act in resolving the costs dispute and ordering costs. The parties’ submissions clearly identified two sources of available statutory power, and it can be inferred, having regard to the course of events and the ex tempore reasons, that the primary judge accepted both sources of power were available: [4]–[15] (Kirk and Ball JJA).

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, referred to.

2. There is genuine ambiguity as to the source of the power on which the primary judge relied. It is not necessary to resolve this ambiguity, since exercising a power based on a mistaken belief about its source does not automatically render the decision invalid, provided the decision can be justified by another available source of authority. This principle, which is well established in other areas of the law, applies to the present context: [60]–[66] (Griffiths AJA); Kirk and Ball JJA agreeing at [16] as to the application of the legal principle.

Brown v West (1990) 169 CLR 195; [1990] HCA 7; Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56; Moore v The Attorney General (Irish Free State) [1935] AC 484; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; [1942] HCA 12; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3; Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3; Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12; Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264; Chan v R [2023] NSWCCA 206; Duarte v Morse (No 4) (2004) 69 Fam LR 147; [2004] FedCFamC1A 9, referred to.

Director of Public Prosecutions (NSW) v Peapell [2025] NSWCA 147, distinguished.

3. The applicants’ conduct of their case below and acquiescence to the relevance of ss 99 and 99A of the CDPV Act also provides a sufficient basis for refusing to grant the relief sought: [68] (Griffiths AJA).

As to Ground 2

4. The applicants were not denied procedural fairness, having been given adequate notice of the respondents’ reliance on s 28(3) of the CAR Act and a sufficient opportunity to make submissions on the issue of costs: [2] (Kirk and Ball JJA); [69]–[73] (Griffiths AJA).

Dempsey v Director of Public Prosecutions [2019] NSWCA 267, distinguished.

As to Ground 3

5. It was implicit in the primary judge’s finding that the interim order applications were frivolous or vexatious and that the appeals had no merit that his Honour considered that it was “just” for costs to be awarded to the respondents. Section 28(3) of the CAR Act did not require the primary judge to be more explicit: [15] and [17] (Kirk and Ball JJA); [74]–[75] (Griffiths AJA).

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59; Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35; Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264, referred to.

6. The requirement in s 72(b) of the CAR Act to state a time within which costs must be paid is a “relic” of the legislative history of the Act and now covered by the general costs assessment processes in the Legal Profession Uniform Law Application Act 2014 (NSW). The primary judge’s failure to stipulate a time does not render the orders invalid: [18] (Kirk and Ball JJA); [76]–[86] (Griffiths AJA).

Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24; Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7; ProjectBlue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, referred to.

JUDGMENT

  1. KIRK and BALL JJA: The background to, and issues arising in, this judicial review application are set out in the judgment of Griffiths AJA.

  2. Ground 2 of the applicants’ second further amended summons makes a procedural fairness complaint. As explained by Griffiths AJA in his Honour’s outline of the course of events, and in his reasons at [69]-[73], the applicants were given notice that the respondents were relying on the power to order costs under s 28(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). There is thus no basis for complaining they were denied procedural fairness.

  3. That conclusion is relevant to consideration of grounds 1 and 3(a). Ground 1 is that Hanley DCJ “exceeded the jurisdiction of the District Court by ordering the Applicants to pay the Respondents’ costs of the appeal to the District Court pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) [CDPV Act] … in circumstances where it had no jurisdiction under [that] Act to make such an order”. The premise of the ground is that his Honour made the costs order only pursuant to the power granted by s 99(3) of the CDPV Act. Ground 3(a) asserts that insofar as Hanley DCJ acted pursuant to s 28(3) of the CAR Act in making the costs orders, his Honour exceeded the jurisdiction of the District Court by doing so “without making a finding that it would be just for the Applicants to pay the Respondents’ costs of the appeal”.

  4. As for ground 1, in our view the applicants have not established that Hanley DCJ was not relying upon the power in s 28(3) of the CAR Act both when his Honour resolved the costs dispute on 7 May 2024 and made orders on 22 October 2024. The burden of proof and persuasion in a judicial review application falls upon the party challenging the validity of a decision: see eg MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [39].

  5. The respondents’ written submissions with respect to the applicants’ appeal to the District Court, dated 18 April 2024, foreshadowed that an application for costs would be made, and referred in that regard to s 28(3) of the CAR Act (see below at [28]-[29]). The submissions also said that s 99(6) of the CDPV Act provides that a court may make an order for professional costs. In fact, it is s 99(3) of that Act which authorises a court to award “professional costs in apprehended violence order proceedings”, subject to s 99A. Thus, in substance, two powers to award costs were identified in the submissions.

  6. The respondents handed up further written submissions on costs at the end of the hearing on 7 May 2024. It is apparent from the transcript that Hanley DCJ then read those submissions. The second sentence of those submissions said “[s]ection 28(3) of the [CAR Act] provides that subject to section 70, of that Act, the Court may make such order as to costs … as it sees fit”. The next sentence explained that s 70 was not relevant to the proceeding. The next paragraph referred to s 96(5) of the CDPV Act, seemingly meaning s 99(3). The reference to that power did not suggest that s 28(3) was not a relevant source of power.

  7. The costs submissions then went on to state that “pursuant to s 99A(1) [of the CDPV Act] the Court cannot award professional costs against an applicant unless the court is satisfied that the application was ‘frivolous or vexatious’”. As explained by Griffiths AJA (at [53] below) – and accepted by both sides in this Court – that provision does not apply to appeals to the District Court. However, it is apparent from the course of events that both sides proceeded on the misapprehension that it did apply. That misunderstanding was not inconsistent with s 28(3) being a relevant source of power. A fair reading of the dual written submissions of the respondents was that there were two sources of power available, but both of them were subject to the overriding limitation imposed by s 99A(1).

  8. The applicants made no written submissions in reply on costs. The oral submissions made by counsel for the applicants on the costs issue sought to rely on the limitation in s 99A(1). He referred to the requirement in that provision that the application was frivolous or vexatious, and said that “your Honour cannot be satisfied of those important words”. He concluded that “on that basis, the application for costs is opposed” (emphasis added; Griffiths AJA quotes the full submission below at [32]). Nothing in the submissions of counsel for the applicants addressed the issue of what powers were available to make the order. The judge was therefore entitled to understand that no dispute arose about the availability of the two identified powers to order costs.

  9. In this context it is unsurprising that Hanley DCJ did not address the issue of power in his ex tempore reasons. His Honour obviously considered that he did not need to do so in circumstances where available statutory powers had been identified by the respondents and not disputed by the applicants. He indicated at the start of his reasons that “in matters of this nature costs are usually not ordered unless the appeal can be regarded as frivolous or vexatious”. His Honour then addressed that issue, concluding that “this is one of those rare cases where I am satisfied the qualifications of frivolous and vexatious are appropriate”. If his Honour had been relying solely on the power to award costs under s 99 of the CDPV Act, it would have been more accurate for him to have said that “in matters of this nature costs cannot be ordered unless …”.

  10. In sum, as regards the decision made by Hanley DCJ on 7 May 2024, the respondents had twice identified both s 28(3) of the CAR Act and s 99 of the CDPV Act as available sources of power in their written submissions; their second written submission had erroneously indicated that the applicants needed to establish that the application had been frivolous or vexatious; the applicants did not dispute the submissions made about the two sources of power; the applicants chose to dispute the costs claim only on the basis that their application could not be characterised as frivolous or vexatious; and the judge did not address the issue of power. In these circumstances, it can be inferred that his Honour accepted that the two sources of power identified by the respondents were available. At the least, the applicants have not discharged their onus by positively establishing that his Honour was only addressing or relying upon one source of power, being that in s 99(3). There is no factual foundation for drawing that inference; and to the extent that his Honours ex tempore reasons shed light on the matter, they suggest the opposite.

  11. This conclusion is not altered by what subsequently occurred in October 2024. As Griffiths AJA explains below at [34]-[45], Hanley DCJ did not make formal orders about costs on 7 May 2024 in the hope that the parties would be able to agree on the amount. No such agreement was reached, so the respondents filed a motion seeking a gross sum costs order, which was expressed to be pursuant to s 99 of the CDPV Act. Written submissions were filed by both sides. However, on 21 October 2024 – the night before the hearing of the motion – the respondents notified the applicants to the effect that they abandoned their application for a gross sum assessment. When the matter came on before Hanley DCJ the next day the only issue in dispute was about who should pay the costs of the motion. His Honour determined that the parties should bear their own costs.

  12. No submissions were made to his Honour on that occasion as to the source of any power to make costs orders, beyond counsel for the applicants saying that “within your Honour’s power and jurisdiction it would be appropriate” to make such an order given what been determined on the earlier occasion. There was no reason to address the topic of power. Counsel appearing for the applicants before his Honour appropriately accepted that the judge had already determined the issue of costs despite no order having being entered, and on that basis the making of a costs order was not opposed. The first order in the short minutes proposed by the respondents was that “[p]ursuant to s 99 of the [CDPV Act] the Appellants are to pay the Respondents’ costs as agreed or assessed”. But the costs orders actually made by his Honour did not refer to that provision, saying simply (in each of the matters): “The appellant to pay the respondent’s costs as assessed”.

  13. Thus the operative decision to make costs orders was taken on 7 May 2024, and the formal costs orders made on 22 October 2024 did not identify any particular source of power.

  14. Given the above, the premise underlying ground 1 – being that his Honour made the costs order only pursuant to the power granted by s 99(3) of the CDPV Act – has not been established. The ground therefore fails.

  15. It is true that Hanley DCJ, unsurprisingly, may have fallen into error by accepting the submissions put by both sides that it was necessary to assess whether or not the applications had been frivolous or vexatious. But that his Honour found the applications could be so characterised does nothing to suggest that he erred in concluding, implicitly, that the power in s 28(3) of the CAR Act was available. If there was anything that the applicants wished to put as to why making such an order was not “just”, in the sense referred to in s 28(3) of the CAR Act, then they had the opportunity to do so. They had been notified by the respondents’ two written submissions provided for the May hearing that that power was being relied upon. Moreover, it is difficult to conceive how it could be said that making costs orders might not have been just in circumstances where his Honour had concluded in his ex tempore reasons that the “the qualifications of frivolous and vexatious are appropriate” and that “[t]he appeal had no merit at all”.

  1. Further, if we are wrong in these conclusions, we also agree with Griffiths AJA that even if Hanley DCJ had erroneously relied upon s 99(3) of the CDPV Act as a source of power that would not establish that the decision was in fact made beyond power given the availability of power under s 28(3) of the CAR Act (see below at [61]-[66]).

  2. Ground 3(a) asserts that insofar as Hanley DCJ acted pursuant to s 28(3) of the CAR Act in making the costs orders, his Honour exceeded the jurisdiction of the District Court by doing so “without making a finding that it would be just for the Applicants to pay the Respondents’ costs of the appeal”. As already explained, in this case that finding was implicit in his Honour’s conclusions that the applications were frivolous and vexatious and the appeal had no merit. As a majority of the High Court recently said in response to a somewhat similar argument, “[h]is Honour’s reasons reflected the arguments that were put to him”: Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35 at [53].

  3. As regards ground 3(b), we agree with the analysis of Griffiths AJA (below at [76]-[86]). We also agree with the orders proposed by his Honour.

  4. GRIFFITHS AJA: By a second further amended summons filed 21 July 2025, the applicants seek judicial review of a costs order made by the District Court (Hanley DCJ) on 22 October 2024. The impugned order was made in identical terms in relation to several unsuccessful appeals brought by the first or second applicant against various respondents. The first or second applicants were ordered to pay the respondents’ costs as assessed in each of those appeals.

  5. In brief, the applicants claim that the District Court fell into jurisdictional error because the costs orders were made under s 99A(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act), which did not apply. They contend that the only jurisdiction of the District Court to make an order for costs as to the appeals is to be found in s 28(3) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), which they say was not relied upon by Hanley DCJ. Alternatively, the applicants complain of (a) procedural unfairness in being denied an opportunity to make submissions as to the application of s 28(3) of the CAR Act, and (b) a failure by the primary judge to make findings as required by ss 28(3) and 72(b) of the CAR Act.

  6. It is common ground that, in light of s 176 of the District Court Act 1973 (NSW), to succeed on a judicial review of a decision of the District Court the applicants must establish jurisdictional error (see Mahmoud v Sutherland [2012] NSWCA 306 at [8] per Barrett JA, Tobias AJA and Blanch J agreeing).

  7. For the following reasons, I consider that the judicial review challenge is without substance, with the consequence that the second further amended summons should be dismissed, with costs.

Background matters summarised

  1. The judicial review proceedings are part of a saga dating back to 13 March 2023 when either the first or second applicant filed applications for interim and final apprehended personal violence orders against one or more of the first to fifth respondents. All the parties have, or have had, an association with an institution called the Inspire Church.

  2. The applications for personal apprehended violence orders were made in circumstances where the first applicant (who is the second applicant’s husband) had been banned from attending the Church. In support of their respective applications for apprehended personal violence orders, the applicants alleged that they apprehended intimidation from one or more of the respondents.

  3. The applications for interim apprehended personal violence orders were heard by a Local Court Magistrate on 18 August 2023. All those applications were dismissed. Arrangements were then made for the applications for final apprehended personal violence orders to be heard and determined in the Local Court.

  4. On 7 September 2023, the applicants lodged appeals to the District Court against the Magistrate’s dismissal of all the applications for interim orders. Numerous interlocutory steps were taken in preparation for the hearing of those appeals. It is unnecessary to describe those steps in detail. The appeals were evidently brought under s 84(2)(a1) of the CDPV Act.

  5. In support of their appeals below, the applicants provided written submissions dated 9 April 2024 which were 45 pages in length. The submissions were silent on the issue of costs.

  6. The respondents provided written submissions dated 18 April 2024 opposing the appeals. In the last three paragraphs, the respondents contended as follows:

Costs

30. The appellants have filed the Applications for a collateral purpose – namely, to litigate a grievance they each have with regard to the conduct of the Board of the church. The appellants were unsuccessful in obtaining interim APVOs and, rather than awaiting the hearing of the final Applications for APVOs, they have sought to appeal from the interim decision and introduce additional ‘fresh’ evidence of no, or speculative weight, weight to the fact in issue. The respondents contend that this conduct alone has been deployed as an abuse of process.

31. Section 99(6) of the CDVP Act provides that a Court may make an order for professional costs. Section 28(3) CAR Act provides that, subject to section 70, the District Court may make such orders as to the costs to be paid by either party (including the Crown) as it thinks fit). Section 70 limits the award against a public prosecutor and is not relevant to the current proceedings.

32. The application for an interim order was dismissed in the Local Court. The appellants have not identified any factual, legal, or discretionary error in the decision of the Magistrate. The pursuit of this appeal, including the associated applications, are without merit and are misconceived. The respondents have incurred considerable expense in defending the appeal and are entitled to costs.

  1. The respondents’ submissions suggested that both s 99(6) of the CDVP Act and s 28(3) of the CAR Act were relevant to costs.

  2. The appeals were heard together by Hanley DCJ on 7 May 2024. On that day, his Honour dismissed them all and gave ex tempore reasons. In brief, his Honour agreed with the Magistrate’s findings and orders and, in particular, that the applicants had failed to demonstrate any intimidating conduct which would justify the making of an interim order.

  3. After Hanley DCJ delivered ex tempore reasons on 7 May 2024 for dismissing the appeals, the respondents made an oral application for costs. They handed up brief written submissions. In the first paragraph, the respondents said that they sought an order for “professional costs” (which evidently referred to that phrase as defined in s 99 of the CPDV Act which is set out at [32] below). In the next paragraph, they made reference to the Court’s power under s 28(3) of the CAR Act to award costs, subject to s 70. In the third paragraph, the respondents referred to s 96(5) of the CDPV Act and the Court’s power to make an order as to “professional costs”. The reference to s 96(5) appears to be in error and ought to have been a reference to s 99(6) of the CDPV Act. The short point, however, is that the respondents referred to provisions concerning costs in both the CDPV Act and the CAR Act. The respondents indicated in the submissions that pursuant to s 99A(1) of the CDPV Act the Court could not award professional costs against an applicant unless satisfied that the application was “frivolous or vexatious”. The respondents argued that this standard was met, and suggested that “the conduct of the appeal lacks bona fides”.

  4. Having read the respondents’ 7 May 2024 submissions on costs, his Honour asked the applicants’ then counsel what his clients’ attitude was on costs. It is evident from the following extract from the transcript that counsel for the applicants viewed the application for costs as relying on provisions in the CDPV Act:

RADOJEV: It’s the 16th your Honour. Sorry, section 3 of the Crimes (Domestic and Personal Violence) Act 2007. Definition is, “Protected Person” means a person for whose protection, an apprehended violence order is, operative word, “sought” or “made”. Section 99A of the Act says, subsection 1, “A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person”. I refer your Honour, back to section 3, “In respect of the order, unless satisfied that the application was frivolous or vexatious. In my submission, your Honour cannot be satisfied of those important words in section 99A. So on that basis, the application for costs is opposed.

  1. Shortly thereafter, Hanley DCJ delivered separate ex tempore reasons concerning costs of the unsuccessful appeals. His Honour noted at the outset that costs in such proceedings “are usually not ordered unless the appeal can be regarded as frivolous or vexatious”. This language appears to echo the language of s 99A of the CDPV Act (the terms of which are set out at [50] below). His Honour explained why he considered the appeals to be frivolous or vexatious, so as to constitute an abuse of process. His Honour held that neither the interim applications nor the appeals had any basis. The primary judge observed that it was surprising that the first applicant (who is a barrister) did not appreciate the lack of evidence supporting the alleged intimidation and, having read the Magistrate’s reasons, the barrister nevertheless appealed against the dismissal of the applications for interim orders. His Honour said that he viewed this as “one of those rare cases where I am satisfied the qualifications (sic) of frivolous and vexatious are appropriate” in circumstances where the appeals had “no merit at all”. Accordingly, his Honour said that he proposed to order costs to the respondents.

  2. Although Hanley DCJ had made clear on 7 May 2024 that he proposed to award costs of the appeals to the respondents, it was not until 22 October 2024 that formal costs orders were made. This delay occurred because, following the hearings on 7 May 2024, the parties were given an opportunity to agree the quantum of costs. They were unable to do so. Thus, the respondents filed a notice of motion on 19 June 2024 in which they sought the following orders (without alteration):

1 Pursuant to s 99 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the appellants are to pay the respondents’ costs fixed in the lump sum of $100,000, or;

2 In the alternative to Prayer 1, the appellants are to pay the respondents costs in an amount as determined by the Court to be fair and reasonable; and

3 such further or other orders that the court deems fit.

  1. The express reference in Prayer 1 to s 99 of the CDPV Act should be noted, as also should the absence of any express reference in Prayer 2 to the basis for the alternative order being sought.

  2. Directions were made for the hearing of the respondents’ notice of motion. The parties provided further written submissions in support of their respective positions regarding costs.

  3. In the respondents’ written submissions dated 16 August 2024 at [12], they contended that Hanley DCJ had the power to make a gross sum costs order under s 99 of the CDPV Act. Elsewhere in that document, however, the respondents made submissions under the heading “Just and reasonable costs” (which language broadly reflects s 28(3) of the CAR Act).

  4. It would appear that, in these written submissions, the respondents continued to identify s 28(3) of the CAR Act as one potential source of the Court’s power to award costs on the appeals, but they also (erroneously) believed that this power may have been subject to limitations in ss 99 and 99A of the CDPV Act. Accordingly, the respondents took upon themselves the burden of establishing a higher standard than that referred to s 28(3), which empowers the Court to make such order as to costs as it thinks “just”, which is broader than the requirement in s 99 that the application must be frivolous or vexatious for costs to be awarded.

  5. It appears that the applicants continued to assume that ss 99 and 99A were being relied upon in respect of costs. In their outline of reply submissions on costs dated 21 October 2024, the applicants raised no objection to
    ss 99 and 99A of the CDPV Act being an available source of power.

  6. It is to be recalled that Hanley DCJ had made clear at the conclusion of the hearing on costs on 7 May 2024 that he proposed to order costs. The dispute between the parties thereafter did not relate to the source of the Court’s power to award costs but rather appears to have been focused on whether or not there should be a gross sum costs order and who should be awarded costs of the respondents’ motion filed on 19 June 2024.

  7. On 21 October 2024, the respondents notified the applicants by an email sent at 6.13pm that they would seek revised orders at the hearing of their notice of motion, which was scheduled for the next day. The proposed amended orders were as follows:

1 Pursuant to s 99 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Appellants are to pay the Respondents’ costs as agreed or assessed.

2 If opposed, the Appellants to pay the Respondents’ costs of the Notice of Motion.

3 The Respondents’ Notice of Motion dated 18 June 2024 is dismissed.

The express reference in Prayer 1 to s 99 of the CDPV Act should be noted.

  1. At the hearing of the motion on 22 October 2024, the parties were all represented by counsel. Counsel for the respondents (Ms Moussa) explained that her clients no longer sought a gross sum costs order. Rather, they sought an order that the applicants pay their costs as agreed or assessed and that the motion otherwise be dismissed. Counsel explained that there was an issue between the parties as to the question of the costs of the motion.

  2. Mr Mack of counsel appeared for the applicants. He said that he did not want to be heard on the order that his clients pay the respondents’ costs of the appeal as assessed or agreed. It is notable that the applicants’ counsel did not at this point raise any issue concerning the availability of ss 99 and 99A as sources of power to award costs. The only issue on which counsel sought to be heard was the costs of the motion itself. The following exchange occurred (emphasis added):

MOUSSA: Today, your Honour, the matter is listed in respect of my client’s motion. Originally it was filed with the intention of prayer 1 being an application for a gross sum costs order. I’m not pressing that prayer for relief today. I am instead seeking that the matter be dealt with on the basis that costs are ordered as agreed or assessed, and that the motion is otherwise dismissed. The sticking point, as I understand it, is the question of costs of this motion. I understand that some short minutes of order had been emailed to your Honour’s associate late yesterday evening, and from your Honour’s expression, I understand that your Honour has not seen those. If the motion, in those terms, is opposed, I’m instructed to seek costs of the motion as well.

HIS HONOUR: Mr Mack, do you want to say anything at this stage?

MACK: Your Honour, I have the difficulty of not appearing on the last occasion, and I understand that submissions might have been made on behalf of my client in relation to the cost position, whether it's cost assessed or as agreed. I don’t want to be heard on that issue. The only issue I seek to be heard on is the costs of today, the costs of my friend’s motion.    

HIS HONOUR: The costs of the actual hearing today?

MACK: Yes, which has been abandoned by my friend, and it will be a short submission about why it is that we're entitled to our cost when the other side abandons their motion on the eve of movement.

HIS HONOUR: Well, what's the situation in relation to the costs for the hearing that was before me?

MACK: As we understand it, your Honour proposed to make an order for costs. There’s, in fact, been no costs order made, but your Honour’s delivered reasons as to why you think it’s appropriate to order costs. We don’t want to be heard on that, that’s--

HIS HONOUR: I had hoped the parties might resolve this between themselves.

MACK: Yes, but the position is that, in my view, it would be appropriate for an order that costs, as assessed or agreed, be ordered for those costs. That's entirely within your Honour's--

HIS HONOUR: I can make an order for specific costs, if you come back to me with an agreed figure.

MACK: We don't want-- We--

HIS HONOUR: You want it sent off for an assessment, do you?

MACK: Yes, that's our view, and that's common ground now.

  1. Later, after reference had been made to the short minutes of order that had been emailed by the respondents to the Judge’s associate the previous evening (see at [41] above), the following exchange occurred:

MACK: Order 1 is not opposed, but also not consented to. I just want to be careful about that, because we weren’t here on the last occasion, but I accept that within your Honour’s power and jurisdiction it would be appropriate. That leaves 2, and I think we agreed that 3 is appropriate, which leaves 2, which is the cost of today. What’s happened, your Honour, is my friend’s gone into detailed affidavit evidence in support of the original prayer 1, which we’ve had to incur costs in relation to, and we’re here today, and it’s been abandoned late, and the simple point is that in any other circumstance with those features, the opposing party would be entitled to their costs as of course because it’s been abandoned at the last moment, and we accept that those costs of today should also be assessed or as agreed. So, our order would be that any costs of this motion be the appellants’ costs, as assessed or agreed.

  1. At the conclusion of the hearing on 22 October 2024, Hanley DCJ made orders in each of the appeals in the following terms:

  1. The appellant to pay the respondent’s costs as assessed.

  2. Both parties to bear own costs of the Notice of Motion.

It is notable that the orders make no express reference to the power under which they were made. This may reflect the fact that this was no longer an issue in circumstances where Hanley DCJ had made clear back on 7 May 2024 that he proposed to award costs to the respondents. It may also be significant that the order is expressed in terms of “the respondents’ costs as assessed” without any explicit reference to the more limited concept of “professional costs” as defined in s 99 of the CPDV Act.

  1. The terms of those orders were notified to the Local Court on 24 October 2024.

  2. As noted above, only order 1 in each of those proceedings is now challenged by the applicants.

Consideration and determination

  1. It is desirable to describe the terms of s 28(3) and related provisions of the CAR Act, as well as relevant parts of ss 99 and 99A (and related provisions) of the CDPV Act, because they are at the heart of the applicants’ judicial review challenge.

  2. Section 28(3) of the CAR Act provides:

28   Miscellaneous powers

…

(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

(Section 70 of the CAR Act imposes limitations on costs awarded against a public prosecutor, and s 72(b) of that Act provides that an appeal court that orders an appellant or a respondent to pay costs “must state a time within which the costs or other amount must be paid”).

  1. Sections 99 and 99A of the CDPV Act relevantly provide:

99 Costs

(1)  In this section—

professional costs means costs relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court (but not court fees payable to a court).

(2)  Costs, other than professional costs, are not to be awarded in apprehended violence order proceedings.

(3) A court may, subject to section 99A, award professional costs in apprehended violence order proceedings to the applicant for the order or decision concerned or the defendant in accordance with this section.

…

99A   Limitations on professional costs being awarded

(1)  A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious.

…

(4) This section has effect despite section 99 or any other provision of this or any other Act or law.

(5)  In this section—

apprehended domestic violence order proceedings means proceedings under this Act in relation to an apprehended domestic violence order or an application for an apprehended domestic violence order.

professional costs has the same meaning as in section 99.

(A “protected person” is defined in s 3 of the CDPV Act to mean “the person for whose protection an apprehended violence order is sought or made”. “Court” is defined in s 3 of the CDPV Act to mean the Local Court or the Children’s Court.)

  1. In the judicial review proceedings in this Court, the applicants’ initial position was that the District Court did not have power to award costs under s 28(3) of the CAR Act on an appeal brought under s 84(2)(a1) of the CDPV Act. They subsequently resiled from that position in their written submissions dated 9 July 2025. This led to the applicants filing the second further amended summons, which raises the following grounds:

1. The primary judge exceeded the jurisdiction of the District Court by ordering the Applicants to pay the Respondents' costs of the appeal to the District Court pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (AVO Act) in circumstances where it had no jurisdiction under the AVO Act to make such an order.

2. In the alternative to Ground 1, the primary judge denied the Applicants procedural fairness and fell into jurisdictional error in circumstances where:

(a) the parties were joined on whether the applications to the Local Court (as distinct from the appeals to the District Court) were frivolous or vexatious within the meaning of s 99A(1) of the AVO Act;

(b) the primary judge determined the issue of costs by reference to whether the appeal to the District Court (as distinct from the applications to the Local Court) were frivolous or vexatious within the meaning of s 99A(1) of the AVO Act;

(c) the Respondents incorrectly invoked s 99A(1) of the AVO Act as the source of the primary judge's jurisdiction to award costs;

(d) the primary judge never permitted the Applicants to be heard on whether it was just within the meaning of s 28(3) of the CAR Act to order the Applicants pay the costs of the appeal.

3. In the alternative to Ground 1, the primary judge exceeded the jurisdiction of the District Court conferred by s 28(3) Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) by making a costs order:

(a) without making a finding that it would be just for the Applicants to pay the Respondents costs of the appeal; and/or

(b) without making a finding specifying a time in which the costs order needed to be paid as required by s 72(b) of the CAR Act.

  1. Ground 1 in the second further amended summons raises a claim that the costs orders dated 22 October 2024 were made pursuant to ss 99 and 99A of the CDPV Act and this involved jurisdictional error because those provisions have no application to appeals from the dismissal of applications for interim apprehended personal violence orders.

  2. Having regard to the definition of “court” in s 3 of the CDPV Act as meaning only the Local Court or Children’s Court (see at [32] above), it is plain that these provisions in the CDPV Act do not apply to District Court appeals. Having said that, however, the terms of ground 1 are inconsistent with the position taken by the applicants leading up to the District Court’s hearing on 22 October 2024, as outlined above.

  3. In support of ground 2, which is said to be in the alternative to ground 1, the applicants claim that they were denied procedural fairness because the primary judge did not permit them to be heard on whether it was “just” within the meaning of s 28(3) of the CAR Act to order them to pay the respondents’ costs of the appeals.

  4. In support of ground 3 (which is also said to be in the alternative to ground 1), the applicants claim that, if the costs order was sourced in s 28(3) of the CAR Act, the primary judge exceeded his jurisdiction because he did not make any finding that it would be “just” for the applicants to pay the costs, nor did he specify a time for payment of the costs, contrary to the requirements in s 72(b) of the CAR Act.

  5. For the following reasons, I would reject each of those complaints. As to the first, while accepting that the applicants carry the onus of establishing jurisdictional error (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] per Gummow J), I consider there is genuine ambiguity as to the statutory source of power relied upon by Hanley DCJ in order 1.

  6. This ambiguity may stem from the way in which the hearing was conducted by the parties. The respondents referred in some of their materials to ss 99 and 99A of the CDPV Act (see the terms of their notice of motion filed 19 June 2024 and the proposed short minutes of order sent on 21 October 2024). But other materials indicate that they were also relying on s 28(3) of the CAR Act (particularly in their submissions dated 18 April 2024 and in [2] of their submissions provided on 7 May 2024 (see at [28] and [31] above).

  7. The applicants also adopted a position prior to the hearing on 22 October 2024 which assumed that the source of power to make the costs orders sought by the applicants was ss 99 and 99A of the CDPV Act (see at [39] above). Nothing in the transcript of the hearing on 22 October 2024 indicates that the applicants contended that those provisions were not an available source of power.

  8. The ambiguity is not removed by the terms of the formal orders made on 22 October 2024 (see at [45] above). The orders are silent as to the statutory source.

  9. I consider that it is unnecessary to resolve the ambiguity. That is because, even if it be assumed that Hanley DCJ thought that he had power under ss 99 and 99A of the CDPV Act to make the orders, and accepting what appears now to be common ground that those provisions only apply in original proceedings in either the Local Court or Children’s Court and not to an appeal to the District Court (see the definition of “court” in s 3 of the CDPV Act which is set out at [32] above), s 28(3) of the CAR Act provides an alternative statutory source of power.

  10. There is a well-established principle in both administrative law and contract law to the effect that, if a power is exercised upon a mistaken belief as to the source of power, this does not necessarily result in invalidity if the decision is able to be supported by another available source of power. In an administrative law context, this principle is referred to in such cases as Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; [1993] HCA 56; Moore v The Attorney General (Irish Free State) [1935] AC 484 at 498 and R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487; [1942] HCA 12. More recently, in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3, French CJ, Hayne, Kiefel and Bell JJ said at [34]:

… A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124]:

‘If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.’ (Footnote supplied in part)

  1. The principle has also been applied to the exercise of delegated legislative powers in Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3, Crennan and Kiefel JJ said at [175] (footnotes omitted):

The issue of the effect, if any, of stated reliance upon a wrong source of power arises most frequently in the area of administrative decision making. There is no reason why the principle relevant to the determination of that issue cannot be applied to the exercise of delegated legislative powers, subject to the terms of the authorising legislation. It is a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power. A mistake as to the source of power does not render an act or decision invalid.

  1. A similar principle applies in contract law in the context of discharge of contract by breach (see Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 371 per Rich J, 373 per Starke J and 377 per Dixon J; [1931] HCA 21 and the authorities cited therein).

  2. A similar principle has been applied in appellate review of judicial decisions concerning the admissibility of evidence (R v MJJ (2013) 117 SASR 81 at [236]; [2013] SASCFC 51 and R v Becirovic [2017] SASCFC 156 at [193]) and sentencing orders (R v Wilson [2018] SASCFC 13 at [9]).

  3. I consider that the principle is also implicit in the requirement that an error must be a material error to amount to jurisdictional error in the context of both administrative and judicial decision-making (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [9]-[16] and Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [15]). Although the scope for review for jurisdictional error is narrower in the case of review of decision-making by an inferior court which normally has authority to decide questions of law as well as fact in matters in which it has jurisdiction, the requirement that an error be material to constitute the jurisdictional error applies equally to judicial review of an inferior court as it does to judicial review of administrative decision-making (see Hariz v Director of Public Prosecutions (NSW) [2021] NSWCA 264 at [6]-[7] per Basten JA, Brereton JA and Stevenson J agreeing and see also in the context of appellate review Chan v R [2023] NSWCCA 206 at [8] per Kirk JA and Duarte v Morse (No 4) (2004) 69 Fam LR 147; [2004] FedCFamC1A 95 at [88]).

  4. If in fact the impugned costs order here was erroneously based on the power in ss 99 and 99A of the CDPV Act (which it is unnecessary to determine),
    s 28(3) provided an alternative source of power. The primary judge’s conclusion that both the applications for interim orders and the appeals were frivolous and vexatious also made it “just” for the purposes of s 28(3) to order the applicants to pay the respondents’ costs. In other words, the precondition to the exercise of the power to award costs in s 28(3) that the Court think it just to make such an order necessarily flows from the primary judge’s acceptance of the respondents’ submission that the appeals were frivolous and vexatious and lacked bona fides. The assessment of what quantum of costs is “fair and reasonable” would be determined as part of the statutory costs assessment process as described at [64]ff below.

  5. I reject the applicants’ submission made in their reply submissions dated 9 July 2025 that the issue here is similar to the issue which arose recently in Director of Public Prosecutions (NSW) v Peapell [2025] NSWCA 147. As
    Ball JA made clear at [30], the question there was whether the power conferred by s 28(3) of the CAR Act is limited to the costs of an appeal in the District Court or also applies to a re-exercise by that Court of the costs discretion conferred on the Local Court. His Honour left open the issue whether the District Court would make a jurisdictional error if it made a costs order relating to the costs in the Local Court that the Local Court could not itself have made. That is not the case here. The impugned order relates only to the costs of an appeal itself.

  6. I would also add that, even if I am incorrect in my reasons for rejecting ground 1, I would not grant the relief sought by the applicants in their second further amended summons because of the conduct of their case below and their evident acquiescence in the proposition that ss 99 and 99A of the CDPV Act were relevant (see M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters) at [12.130]).

  7. As to ground 2, I do not accept that the applicants were denied procedural fairness. The applicants were given adequate notice of the respondents’ reliance (perhaps not exclusively) on s 28(3) of the CAR Act. As previously mentioned, express reference was made to this provision in the respondents’ written submissions dated 18 April 2024 and also in the application they provided on 7 May 2024. They also referred to s 99 and 99A of the CDPV Act but at no point did they disavow reliance on s 28(3) of the CAR Act as a potential source of the District Court’s power to award costs.

  8. As noted above, Hanley DCJ made clear at the hearing on 7 May 2024 that he had read the respondents’ submissions styled “Application for costs”. He then asked the applicants’ then counsel what his clients’ position was in relation to that application for costs. In response, counsel was content to make various submissions relating to provisions in the CDPV Act. He had adequate opportunity to make whatever submission he wished concerning s 28(3) of the CAR Act. There was no denial of procedural fairness.

  9. The decision in Dempsey v Director of Public Prosecutions [2019] NSWCA 267 does not assist the applicants’ complaint of procedural unfairness. The Court held there that there was procedural unfairness when the primary judge proceeded to reduce costs by 30% so as to arrive at “a just and reasonable result” without giving the parties an opportunity to be heard on the issue whether there was any distinction between the concepts of “fair and reasonable” for the purposes of s 213 of the Criminal Procedure Act 1986 (NSW) and “just” for the purposes of s 28(3) of the CAR Act. In contrast, the applicants here were given adequate notice and an opportunity to address the award of costs under s 28(3) of the CAR Act. They failed to take advantage of that opportunity.

  10. I reject the applicants’ claim that the reference to s 28(3) of the CAR Act in the respondents’ submissions provided on 7 May 2024 should be read as eschewing any reliance by the respondents on that provision as a source of power. Paragraph 2 needs to be read as a whole (see at [31] above). It is plain that the respondents were not disavowing the applicability of s 28(3) to the proceeding, but rather were simply acknowledging that s 70 has no application in their case because the limitation imposed by that provision relates only to the award of costs against a public prosecutor. The respondents were not disavowing reliance on s 28(3) generally (the same may be said concerning the reference to s 28(3) in the respondents’ written submissions dated 18 April 2024, which is set out at [28] above).

  11. Nor do I accept the applicants’ claim that they were denied an opportunity to make submissions on whether or not the applications for interim orders and the appeals were frivolous or vexatious. The respondents made clear in their written submissions provided on 7 May 2024 that they asked the District Court to find that the interim order applications were frivolous and vexatious and that the appeals themselves also lacked bona fides (see at [31]).

  12. Ground 3(a) also lacks merit. Merely because Hanley DCJ did not expressly state that he thought it “just” for the applicants to pay the respondents’ costs does not mean that there was non-compliance with s 28(3). His Honour made it abundantly clear that he considered that both the interim order applications and the appeals were frivolous or vexatious so as to amount to an abuse of process. It is necessarily implicit in this finding that his Honour also considered that it was “just” to order the applicants to pay the respondents’ costs of the appeal.

  13. On its proper construction, s 28(3) does not oblige the Court to state explicitly in either the terms of a particular order or the accompanying reasons for judgment, that the particular order as to costs is “just”. The reference at the end of s 28(3) to “just” appears in the context of the Court being empowered to make such an order as to costs as it thinks just. This reflects the usual position that, subject to the terms of a provision empowering a court to award costs, the court has a broad power, which is generally unfettered, but must be exercised judicially (see Latoudis v Casey (1990) 170 CLR 534 at 541-543 per Mason CJ, and at 567 per McHugh J; [1990] HCA 59 and Hariz at [13]).

  14. I turn now to consider the applicants’ complaint under ground 3(b) that order 1 was vitiated by jurisdictional error because the primary judge did not state a time in which the costs or other amounts must be paid as required by s 72(b) of the CAR Act.

  15. It is difficult to discern from the terms of s 72(b) any clear underlying policy or purpose underlying the requirement to state a time within which costs have to be paid. With the Court’s leave, the parties provided helpful post-hearing submissions on the legislative history of the provision. Section 131 of the Justices Act 1902 (NSW) as originally enacted provided (emphasis added):

131

(1) Where the Court orders either party to pay costs, such order shall direct that such costs be paid to the Clerk of the Peace to be by him paid over to the party entitled to the same, and shall state a time within which such costs shall be paid.

(2) If such costs are not paid within the time stated in such order, whether the party ordered to pay the same is or is not bound by recognizance to pay the same, the Clerk of the Peace or his deputy shall, upon the application of the party entitled to sum costs or of any person on his behalf and payment of a fee of one shilling, grant to the party so applying a certificate that such costs have not been paid.

(3) Upon the production of such certificate to any Justice, such Justice may commit the person named therein as having been adjudged to pay the costs mentioned therein to prison in the same manner and for the same period as if such certificate had been a conviction or order made by such Justice by which such person had been adjudged to pay such costs forthwith, and such person had failed to pay the same according to the terms of such conviction or order.

The requirement to state a time for payment formed an important part of a process which could result in the defaulting party being imprisoned.

  1. In the reprint immediately prior to the amendments produced by the Justices Legislation Amendment (Appeals) Act 1998 (NSW), s 131 of the Justices Act provided as follows:

131 Recovery of costs of appeal

(1) Where the Court orders either party to pay costs the order shall:

(a) direct that the costs be paid to the Clerk of the Local Court where the matter which is the subject of the appeal or the application for leave to appeal was originally heard and be so paid at that Court,

(b) state a time within which the costs shall be paid,

(c) adjudge that, in default of payment of the costs, the person against whom the order is made shall be imprisoned and so kept for a period calculated in accordance with section 87 (2), unless the costs be sooner paid, and

(d) specify whether any such imprisonment shall be with hard labour or light labour.

…

(3) If the costs are not paid within the time stated in the order directing their payment, whether the party ordered to pay the same is or is not bound by recognizance to pay the same, a Justice may by warrant commit the person ordered to pay the costs to prison there to be kept, according to the terms of the order, unless the costs together with such further sum for the costs of enforcing the order, including the costs and charges of conveying such person to prison as to such Justice may seem just and reasonable, be sooner paid.

…

  1. By the Justices Legislation Amendment (Appeals) Act 1998 (NSW), s 133T was included in the new Pt 5A of the Justices Act. It provided (emphasis added):

133T Payment of money

If the District Court orders an appellant or a respondent to pay costs under this Part, or makes any other order for the payment of money under this Part, the District Court must:

(a) direct that the costs or other amount be paid to the clerk of the Local Court where the matter the subject of the appeal or application for leave to appeal concerned was originally heard, and

(b) state a time within which the costs or other amount must be paid.

  1. The appeal provisions in the Justices Act were effectively transferred to the CAR Act in 2001 by the Crimes (Local Courts Appeal and Review)Act 2001 (NSW). Section 72(a) of the CAR Act was repealed in 2009 by the Crimes (Appeal and Review) Amendment Act 2009 (NSW), Sch 1, cl 16, but s 72(b) was retained in its current form.

  2. As counsel for the applicants submitted, s 72(b) appears to have evolved from provisions which had condign consequences for non-payment of costs within a set time to the current position where there are no such comparable consequences. The condign consequences were repealed in 1998 but the requirement that an order state the time in which costs or other amounts must be paid was retained in s 133T of the Justices Act.

  3. This history needs to be read in the context of Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW) (LPUL Application Act) which sets out the process for assessment of costs, including for “ordered costs” (which is defined as “costs payable under an order or rule of a court or tribunal” (see s 63 and the note to s 64(1)). Those provisions and processes apply to costs orders made under the CAR Act which, absent a gross sum costs order or agreed costs will normally trigger a separate assessment of costs which are fair and reasonable (see s 76 of the LPUL Application Act).

  4. Reference also needs to be made to s 70(5) of the LPUL Application Act (see also s 87 and decisions of a review panel). These provide for costs assessment certificates to be registered in a court which are then taken to be a judgment of that court for the payment of the unpaid money and can be enforced.

  5. These provisions in the LPUL Application Act operate to establish timing and enforcement mechanisms concerning costs orders which do not rely upon the CAR Act. Thus, there is no longer any need to specify a time in which an order for costs must be paid because the issue is now adequately covered by general costs assessment processes in the LPUL Application Act. In this sense, the requirement in s 72(b) may appropriately be described as a “relic”.

  6. Acts as amended are to be construed as a whole “as a combined statement of the will of the legislature”: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 at [25]. Further, the principle “that an Act of Parliament should be construed in a way that best achieves a harmonious result also informs the construction of two statutes which may share a field of operation”: Commissioner of Police (NSW) v Cottle (2022) 276 CLR 62; [2022] HCA 7 at [23]. Whatever significance it may have had in the past, the purpose previously served by s 72(b) has fallen away, including because of the scheme now provided for in the LPUL Application Act. In that context, it could not sensibly be said that the legislative intent would be that an order made without complying with the direction in s 72(b) to specify a time should be invalid: note ProjectBlue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93].

  7. The applicants have failed to establish any jurisdictional error arising from Hanley DCJ’s failure to state a time for payment of the costs order.

  8. Finally, it is necessary to say something briefly regarding the respondents’ objections to the admissibility of certain parts of the affidavit sworn by the first applicant on 8 July 2025. The parties were content for the Court to defer ruling on those objections until the Court’s reasons for judgment were published. The paragraphs objected to relate to the issue of the instructions and/or submissions which the first applicant says would have been provided on the issue of costs of the appeals and whether they were frivolous or vexatious. In my view, the parts objected to are irrelevant and inadmissible given that they are predicated on a false premise, namely that the applicants were not afforded procedural fairness.

Conclusion

  1. I propose that the second further amended summons filed 21 July 2025 be dismissed and the applicants pay the respondents’ costs of the proceeding.

**********

Decision last updated: 22 August 2025

Cases Citing This Decision

0

Cases Cited

29

Statutory Material Cited

10

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