Nash v Silver City Drilling (NSW) Pty Ltd

The applicant, Nash, sought judicial review of the refusal by a Local Court magistrate to award costs to the prosecutor under section 257B of the *Criminal Procedure Act 1986* (NSW). The prosecutor had been successful in a charge against Silver City Drilling (NSW) Pty Ltd, but the magistrate declined to award costs. Nash contended that the magistrate's decision was erroneous and sought to have it set aside.

The primary legal issues before the Court of Appeal were whether the prosecutor had a right of appeal against the refusal to award costs under section 5AA of the *Criminal Appeal Act 1912* (NSW), and if not, whether judicial review was an appropriate avenue for challenging the magistrate's decision. This involved determining whether the refusal to award costs constituted an "order" within the meaning of the *Criminal Appeal Act* and whether the prosecutor qualified as a "person" for the purposes of that Act.

The Court of Appeal held that the refusal to award costs under section 257B of the *Criminal Procedure Act* was not an "order" for the purposes of section 5AA of the *Criminal Appeal Act*, and therefore, no right of appeal lay. Consequently, judicial review was not an appropriate remedy. The Court reasoned that the *Criminal Appeal Act* was concerned with appeals against convictions, acquittals, or sentences, and a discretionary decision on costs did not fall within its ambit.

Accordingly, the summons filed by the applicant on 8 March 2017 was dismissed, and no order was made as to the costs of the proceedings in the Court of Appeal.