Madden v Commissioner of Police

In Madden v Commissioner of Police, the applicant, who had been charged with dishonesty-related offences, sought costs orders following the dismissal of the charges when the complainant offered no evidence. The applicant argued that the dismissal of the charges without hearing her costs application constituted procedural unfairness. The primary judge dismissed the appeal and the application for leave to appeal. The applicant appealed to the Court of Appeal, seeking reconsideration of the previous decision that the Magistrates Court did not have the power to make costs orders after formal dismissal.

The Court of Appeal considered whether the primary judge should have identified the procedural unfairness and made remedial orders. They found that if the previous decision in Bell was to be followed, the dismissal of the charges caused substantial injustice to the applicant, as she had not been given an opportunity to present her costs application. The Court concluded that the primary judge should have addressed the procedural unfairness and made orders to hear the applicant's costs application.

The Court of Appeal granted the application for leave to appeal, allowed the appeal, and set aside the order made by the primary judge. They substituted the orders with directions to the Magistrate to hear and determine the applicant's application for costs orders in relation to the four charges and, if successful, specify the allowed costs in orders of dismissal of the charges concerned. The parties were required to file submissions regarding the order to be made as to costs, limited to four pages, for the Court to resolve on the papers.

The final orders were: (1) the application for leave to appeal was granted; (2) the appeal was allowed; (3) the order made by the primary judge on 28 July 2021 was set aside; (4) the substituted orders directed the Magistrate to hear and determine the applicant's application for costs orders and, if successful, specify the allowed costs in orders of dismissal; and (5) the parties were to file submissions as to the order which should be made as to costs.